Family Law

Can A Chinese Celebrity Really Just Abandon Her Surrogate-Born Babies?

And Zheng Shuang is not the first celebrity -- or intended parent -- to be in this situation either.

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(Image via Getty)

The latest surrogacy scandal is that of a Chinese celebrity who was accused by her ex-boyfriend of abandoning their two U.S.-born, surrogate-born children. The Chinese actress, Zheng Shuang, had been romantically partnered with Chinese TV producer Zhang Heng for the past few years. Last week, Zhang revealed on Weibo (like Chinese Instagram) that he has been stuck in the United States for the past year caring for the couple’s two children, who Zheng abandoned. He posted images of the babies’ birth certificates — one born in Colorado in December 2019, the other born in Nevada in January 2020, each with “Shuang Zheng” named as mother and “Heng Zhang” named as father.

Is It True?

Many of us are not inclined to trust social media posts. But there are definitely indicia that Zhang has the receipts. The story has been picked up by a number of news sources, including The New York Times and CNN. While American media has faced criticism on both sides of the aisle, I have to believe some of the bigger news outlets would have done some fact-checking before running a story about the incident. And, as a Colorado attorney, as well as the parent of a Colorado-born child, I can say the Colorado birth certificate looks legit.

She’s Not The First Celebrity To Change Her Mind

Unfortunately, this is not the first time an intended parent in a surrogacy arrangement has changed her mind as to her desire to parent her children. Although this number is a few years old, assisted reproductive technology attorney Andrew Vorzimer has previously shared the statistic that out of over 148,000 surrogate deliveries tracked since 1979, 13 gestational surrogates have attempted to change their minds; while 89 intended parents have tried to change their minds. So while Zheng’s situation is still statistically very uncommon, she is certainly not the only one.

And Zheng is not the first celebrity to be in this situation either. In 2016, former The View co-host Sherri Shepherd lost her court battle to disclaim parental obligations to her surrogate-born son. Shepherd and then-husband Lamar Sally took concrete steps to have a child together. They sought the assistance of a fertility clinic, received donated eggs, and formed embryos. The two entered into a contract with a gestational carrier in Pennsylvania, and arranged for her to undergo an embryo transfer procedure with their embryos.

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When the couple broke up during the pregnancy, Shepherd refused to sign the paperwork to confirm that she was a legal parent of their child. The surrogate brought suit. Shepherd claimed she had been tricked into the surrogacy arrangement by Sally, and shouldn’t be responsible for the child.

The court didn’t buy it. The judge found Shepherd to be a parent of the child, and responsible for sizeable monthly child support payments.

Here, Zheng was already named on the birth certificate as the mother of the children. In Colorado, that would have meant that she signed an affidavit confirming that she was the mother of the child, as well as a petition and supporting documentation. A judge would have then issued an order naming her as parent and that order would have been included with the birth certificate application when it went from the birth hospital to Colorado’s Vital Records. I expect the process looks similar in Nevada.

There is no legal process for an intended parent — who’s not so “intended” anymore, since they are trying to get out of parenthood — to just change their mind. And adoption would not be an option, unless both parents agreed to put the children up for adoption. Under U.S. law, Zheng is a parent to those children and is fully responsible for their well-being in an identical manner to children that she had given birth to directly.

Were Laws Broken?

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The Zheng case has heightened the discussion in China and elsewhere as to the morality and legality of surrogacy. China already prohibits its medical professionals from performing surrogacy procedures on their patients. But that doesn’t stop Chinese citizens from going overseas for those procedures. Zheng herself issued a statement saying that “this is a very sad and private matter for me,” and saying that she did not violate Chinese law. But what does U.S. law say about child abandonment of a child born from surrogacy?

Is Surrogacy A Red Herring?

In every state in the United States, it is crime to simply abandon a child. While the precise definition in each state may vary, Colorado’s includes the situation where “the parent has surrendered physical custody of the child for six months or more, and during that period, the parent has not shown intention to resume physical custody of the child or has not made legal arrangement to care for the child.” There is no exception for foreign nationals, and no exception for how the child was born, so it looks like Zheng could be in serious legal trouble, if the story is the same as what’s been reported.

Abandonment is at the tragic heart of this story. While I have never seen statistics, I suspect that surrogate-born children are abandoned far less often than nonsurrogate-born children, since parents who conceive through surrogacy often go to extreme lengths to conceive. Most surrogate-born children are conceived after a long, difficult, and expensive road for the intended parents.

There is significant danger in making sweeping conclusions about Zheng’s actions reflecting on surrogacy generally. Her case is not a commentary on surrogacy more broadly, but rather child abandonment specifically. It would be tragic if these circumstances were seen as a reason to cut off hopeful parents from assisted reproductive technology generally, and willing and supportive gestational carriers, wishing to help them bring very wanted children into this world.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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