Shanghai lawyers have described as "unfair" a ruling that saw a mother lose custody of her 5-year-old twins after her husband died, because they born to a surrogate mother.
The mother, whose name was not released, was told to give up the boy and girl to her husband's parents, the Minhang District People's Court said yesterday.
The court heard that she was infertile and that she and her husband decided to have children using his sperm through a surrogacy agreement.
But as surrogacy is illegal in China, the court ruled that the woman could not claim to have relations with the children.
Therefore, their blood relations — their late father's parents — should have custody, ruled the court.
Lawyers commenting said the ruling was harsh.
He Wenshu, a lawyer at Shanghai K-Insight Law Firm, told Shanghai Daily that custody should go to whoever is best suited to raise the children.
"Considering both the children's emotional wellbeing and the guardians' ages, I think the mother can take better care of the twins than the grandparents," said He.
"If they were newborn babies, it could be reasonable to give such a ruling because the bloodline makes the relation between the grandparents and kids much closer.
"But in this case, the mother has raised the kids for five years," she added.
Well-known local lawyer Liu Chunquan agreed.
"The mother can be blamed for the illegal way she got her babies, but that has nothing to do with guardianship. It's unfair that she lost the children, said Liu.
"She's taken care of them since they were born for five years and done them no harm. It's wrong to take her children just because she is not the biological mother."
The court heard that the mother found a health care organization that would use her husband's sperm to fertilize another woman's eggs. Then she and her husband found a woman to carry the twins.
The cost of the procedure was 800,000 yuan ($129,000), the court heard.
After the twins were born in February, 2011, the mother entered on their birth certificates that she was the biological mother.
These were later used on their household registration.
However, her husband died of pancreatitis in February last year and the mother brought up the twins alone.
Last December, the father's parents filed a suit demanding custody of the twins, claiming that only their son was biologically related to them.
Based on test results, the court said there was no possibility that the twins' mother was their biological mother.
But she argued that they were her children as she'd raised them from birth.
Even though she isn't the biological mother, she should be regarded as their adoptive mother, she said.
But the court said as surrogacy is illegal and the relationship between the defendant and the children doesn't meet the conditions of a lawful adoptive relation, she has no right to custody of the twins.
Because the twins' biological father was dead and the biological mother is unknown, the court ruled that they should be raised by their grandparents.