A Chinese businessman wanted a child in 2017 and paid a Chinese company to find him a surrogate. The surrogate, who was in Cambodia, gave birth to the child. But after the businessman arrived here to receive the baby, he was arrested for trafficking and sentenced to 15 years in prison.
Now, Xu Wenjun is appealing a 2020 lower court decision, arguing that he was unaware when he started the process that the surrogate would be in Cambodia, and that surrogacy was outlawed in the country.
The Appeal Court heard a motion this week from Xu, a Chinese national, contesting the 15-year sentence handed to him for attempting to traffic the child out of Cambodia. Xu maintains that he is innocent, the child is biologically his, and that he had consent from the mother to take the baby to China.
Judge Sin Visal read out court documents detailing the circumstances that led to Xu’s arrest in July 2019. The defendant was divorced and wanted a child, so he contacted a Chinese company to arrange a surrogate. Xu has testified that the company was a registered company in China.
The company located a 28-year-old surrogate in Cambodia, who gave birth to a child. It was not clear from this week’s hearing exactly when the child was born.
According to the documents read out in court, Xu’s payments provided the surrogate mother with money, took care of her medical needs, and paid for milk for the baby. Xu said the entire process cost him around $90,000.
Xu was trying to take the child back to China in 2019 when he was arrested by anti-trafficking officials who were tipped off by a local NGO that the Chinese national had approached for help, according to the documents.
The surrogate mother was also arrested but later released on bail under court supervision.
Judge Visal said Xu had taken two DNA tests to prove he was the biological father of the child.
During cross examination, Xu said he had been unable to have a child during his last marriage and wanted a baby, and the Chinese company told him they could arrange it. When asked if the company was a legal entity, as surrogacy is banned in China, Xu said it was licensed and that he only learned it would use a surrogate in Cambodia after the mother was pregnant.
Another judge pointed out Xu’s lower court testimony that he had picked Cambodia to find a surrogate, but the businessman said the interpreter had misinterpreted his words.
Appeal Court prosecutor Chum Sensathea questioned if Xu had asked the surrogate mother for permission to take the baby and said there was no record of travel documents for the child.
The prosecutor suggested the judge call for a reinvestigation of the case and for the defense to provide all the necessary evidence and documents to support Xu’s claims.
Defense lawyer May Vannady said his client was the biological father of the child and that Xu should not be convicted for trafficking.
“My client had no [bad] intentions as he was charged. My client and the baby are not strangers. The baby is his own baby.”
“It is inhumane to not allow the father to meet with his child,” he added.
He said that if Xu wanted to traffic the child, he wouldn’t have bothered with processing all the necessary documentation. Vannady asked the court to drop the charges against his client.
A decision is expected on January 24.
The government began to clamp down on surrogacy operations in Cambodia in late 2016 and even convicted individuals involved in the unregulated sector, including imprisoning an Australian nurse. The government has said it is working on a draft surrogacy law but has yet to pass legislation.