Women have made giant leaps on the path to reducing inequalities based on sex in the past century. However, severe inequalities nevertheless persist throughout the world, and they are especially noticeable in the context of access to assisted reproductive technology and fertility care services. Last month, a 31-year-old woman in the People’s Republic of China brought a lawsuit against a hospital that refused to provide her oocyte cryopreservation (“egg freezing”) services. Why was she denied? Only because she was unmarried.
Beijing Obstetrics and Gynecology Hospital — the target of Teresa Xu’s lawsuit — was not the first hospital to deny her services. Chinese government regulations prohibit the provision of egg-freezing services to unmarried women. Some hospitals reportedly go further and deny married women egg-freezing services if they do not have … their husband’s consent. They do not, however, prevent a single man from freezing his sperm.
Xu describes her experience with the hospital as being particularly upsetting. Not only did her doctor refuse to help her medically, but also offered a little personal advice, suggesting that she really should hurry up and get married and have a child then. That’s not the kind of advice that any ambitious, empowered woman wants to hear. In any country.
Xu decided to take action. Not surprisingly, the case openly challenging a hospital’s decision to comply with government regulations regarding fertility care for unmarried women is the first of its kind in the country.
Reproductive Rights Are Complex. Especially In China.
While a women’s right to continue a pregnancy or not still divides our country, reproductive rights have an even more complicated layer in China. Only a couple years ago –- in 2016 -– the Chinese government lifted the long-standing One Child Policy that had limited most families in the country to no more than one child. That policy lead to extremes, including forced abortion and an acute gender imbalance to the tune of 30 million more men than women. Now, the decision to lift the policy has resulted in a significant number of hopeful parents looking for reproductive services as they consider their family-building options.
Not everyone can have kids the old-fashioned way, though. And surrogacy is not permitted in China at all, which results in a huge demand for such services in other countries, including the United States. Similarly, as women like Xu are denied access to egg-freezing services, many seek out services in other countries to freeze their eggs. But the high costs, $10,000 to $20,000 or higher, are prohibitive for many.
Egg-Freezing Backlash
Egg-freezing providers have been under fire here in the United States for a concern they are overselling their promises to prospective patients. These type of concerns generally sound in the possibility that preservation gives a false sense of security to women who want to work hard on their careers now and have kids later. One marketing slogan put a fine point on this controversy: “Focus on your career: Extend your fertility.” The promises may turn out fine for some people, but an absolute confidence in egg freezing would be misplaced. Egg freezing, like all assisted reproductive technology procedures, does not have a perfect success rate. The rate can in fact be surprisingly lower than participants might expect. While egg freezing does offer a chance of success at having a genetically linked child later in life, it could also deceive women into thinking that they will be fine having kids down the road, while the opportunity present in more fertile years pass by.
One of the more famous cases of egg-freezing disappointment is that of Bridgette Adams. In her late 30s, she was riding the wave of a successful career in the tech world. At the time, she even appeared on the cover of Bloomberg Business with the headline “Freeze Your Eggs, Free your career,” touting the decision to have her eggs frozen. She openly discussed her plans to focus on her career, for now, and find Mr. Right eventually, and then start a family when the timing was right.
As she approached 45, and Mr. Right had yet to come on the scene, Adams decided that it was time to go ahead and attempt to conceive with her frozen eggs. She had 11. The Washington Post article details what happened next: “Two eggs failed to survive the thawing process. Three more failed to fertilize. That left six embryos, of which five appeared to be abnormal.”
She was left with a single viable embryo. That embryo was transferred, but devastatingly for Adams, failed to produce a pregnancy. Adams still speaks publicly that she does not regret the decision to freeze her eggs. However, her story serves as a reminder that the procedure is not a guarantee.
Of course, even if the egg freezing doesn’t have a perfect success rate, and is being oversold by some, women like Xu obviously still deserve the opportunity to balance the risks and rewards and make the choice on their own.
What Will Xu’s Lawsuit Accomplish?
Legal commentators have criticized the lawsuit’s target as the hospital, which is only following the dictates of the one-party government, controlled by the Communist Party of China (CPC). They suggest that for that reason, Xu’s lawsuit is unlikely to find success.
But that’s only if you define success to mean ultimately winning the legal case. Others suggest that the national conversation and attention surrounding the issue may be success in itself. This case, and the public discussion surrounding the issues of inequality and access to fertility care, may be the catalyst needed for a reconsideration of the outdated and oppressive regulations. It’s at least a start.
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.