CHINA Law and Practice Contributed by: Chengchen Gan (Mark), Commerce & Finance Law Offices
Although the country expressly prohibits the imple - mentation of surrogacy technology, there are no explicit penalties imposed for the surrogate mother, and no rulings which deny the equal legal status of surrogate children from children born through other legal means. Posthumously Conceived Children For posthumously conceived children, the PRC legal system implements a mechanism in terms of which portions of an estate can be reserved to accordingly protect the child’s legal inheritance rights. The PRC law stipulates that natural persons enjoy capacity for civil rights from birth, therefore, an unborn fetus in principle cannot be deemed as a civil subject under the PRC law. In order to protect the legitimate rights and interests of the fetus, based on the PRC Civil Code, at the time when estate is partitioned, reserva - tion shall be made for the share of any unborn child. The law provides that an unborn child is entitled to inheritance upon the death of their parent, meaning that the unborn fetus shall be deemed as a “child” and inheritor first in order, entitled to inherit the cor - The PRC law does not currently support same-sex marital relationships; specifically, same-sex couples are not afforded the same level of protection as heter - osexual couples through marriage regimes, but there are still some preferred planning mechanisms in place to support same-sex couples in caring for and sup - responding share in estate. 9.2 Same-Sex Marriage The Marriage and Family Section of the PRC Civil Code was formulated entirely from the perspective of heterosexual marriages, which clearly stipulates that “the marriage system of freedom of marriage, monog - amy and equality between men and women shall be implemented”, without legal recognition to same-sex marriages or partnerships. Other Preferred Planning Mechanisms On the premise that same-sex couples do not have access to the same protection and legal recognition as heterosexual couples, the following are some of porting each other. Same-Sex Marriage
the possible ways to protect same-sex couples from possible risks. Guardianship With the enactment of the PRC Civil Code, same-sex couples are given the right to become the intended guardians of the other party, who is able to fulfil the duties of guardianship in the event the other party lose their civil capacity entirely or partially, with the following requirements: • the guardian is a person of full civil capacity; • the guardian was appointed in writing; and • the guardian was appointed when the other party had full civil capacity. Asset management Under the PRC Civil Code, the parties may sign a “gift contract” during their lifetime whereby the donor agrees to give their property to the donee at nil con - sideration, with the donee indicating their acceptance. Similarly, a legacy also requires the donee to expressly indicate their acceptance within 60 days of becoming aware of the legacy. Alternatively, the parties can offer their partner economic protection through the signing of a legacy support agreement that survives legal suc - cession. It is important to note that, with respect to economic interests, the parties shall avoid the poten - tial risk of the donor exercising an arbitrary revocation right by notarising the written agreements. 10. Charitable Planning 10.1 Charitable Giving Attention to charity has seen an upward trend in the PRC. • In 1999, the Law on Public Welfare Donations was promulgated to encourage and regulate donations for the promotion of public welfare. • In 2016, the Charity Law was promulgated to further expand the scope of standardised social welfare activities, raising the thresholds for govern - ment and other organs to organise and promote charitable activities. • In 2023, the newly revised Charity Law (effective in September 2024), specifically added a section
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