Is a fake certificate considered a crime? - A Legal Risk Perspective on the Criminal Case of the Extramarital Embryo in Shanghai
Introduction
Recently, the "extramarital embryo case" in Shanghai has attracted widespread attention.
Ms. Zhu, who was suffering from lung cancer, discovered during her illness that her husband, Mr. Tang, had forged a marriage certificate and cultivated frozen embryos with a third party. She demanded that the hospital destroy the documents but was refused; Mr. Tang was only administratively detained for 5 days. She has filed a lawsuit for personality rights and requested criminal case supervision from the procuratorate and submitted a self-accusation material for the crime of bigamy.
This case involves multiple legal issues such as marital relations, assisted reproduction, document management, and criminal liability.
The duty of legal professionals is to analyze the problems that can be solved by law and the boundaries of their application based on the current legal provisions. The following is an analysis from the perspective of a criminal defense lawyer.
01 Crime of Bigamy: The legal threshold is relatively high
Article 258 of the Criminal Law stipulates that anyone who has a spouse and commits bigamy shall be sentenced to imprisonment of up to two years or detention.
There are two forms of bigamy:
Legal bigamy - the previous marriage has not been dissolved and one is registered for marriage with another person. In this case, the marriage certificate was forged, and legal bigamy does not hold;
Factual bigamy - the previous marriage has not been dissolved and one is living together with another person in a marital relationship for a continuous and stable period. The threshold for recognizing factual bigamy is very high. It requires that: the two parties publicly use the marital title; the cohabitation has a continuous nature (judicial practice generally refers to 3 to 6 months); the public generally considers the two parties to be a marital relationship.
Case analysis: The two parties pretended to be a couple in the closed and specific medical procedure of IVF, which is a purposeful identity fabrication, and differs from the legal standard. Just having a forged marriage certificate is not sufficient to prove factual bigamy. However, if subsequent evidence can prove that the two parties openly cohabited and socialized in a marital relationship for a long time, the risk is not excluded.
02 Crime of Forging State Organs' Documents: The threshold for conviction is relatively low
Article 28 of the Criminal Law stipulates that those who forge, alter, or trade state organs' documents shall be sentenced to imprisonment of up to three years; if the circumstances are serious, they shall be sentenced to imprisonment of three to ten years.
This crime is an act crime - as long as the act of forging is carried out, it generally constitutes a crime. The purpose of the act does not affect the conviction.
Regarding the threshold for conviction: quantity is not the only criterion.
Was only one document forged a crime?
The Supreme People's Court's Legal Answer Network clearly responded: The Criminal Law itself does not stipulate that a certain quantity must be reached to be convicted. In practice, the standard of reference is usually the number of motor vehicle documents - "three documents" is used as a reference for conviction - but this is only a reference and not an absolute standard.
In addition, the importance and specific use of the document should also be considered.
At the same time, two exceptions should be noted: even if the number does not reach three documents, if one purchases the document for the purpose of committing a crime, it can still be convicted; even if the number reaches three documents but is not used for criminal purposes, it can also not be treated as a crime.
Combining this case: The marriage certificate belongs to an important state organ document. Mr. Tang forged this document to deceive the hospital for IVF. Although only one document was forged, the importance and special use of the document are high. Therefore: "three documents" is not an absolute standard that excludes criminal liability. The key lies in the nature of the document, its specific use, and the relevant case circumstances.
Administrative detention does not mean the end of the criminal procedure. Mr. Tang was given a 5-day administrative detention as an administrative penalty, which cannot replace criminal prosecution. Ms. Zhu has applied for criminal case supervision, and the criminal prosecution procedure may still be initiated.
Similar cases have precedents. In 2025, a principal of a certain middle school in Qinghai Province purchased a fake marriage certificate for IVF in a extramarital affair and was sentenced to six months of detention for the crime of trading state organs' documents. The judgment pointed out: Their behavior "not only disrupted the public credit and order of state organs' document management, but also violated the basic moral norms of public order and good customs and marital and family relations".
This case indicates that even if only one document is forged, used in a serious medical procedure, it can still be subject to criminal liability.
03 Concurrent Offenses: Multiple Penalties Can Be Imposed
The two offenses infringe upon different legal interests - bigamy protects the institution of monogamy, while the offense of forging documents protects the management order of state organs.
If both offenses are committed simultaneously, multiple penalties should be imposed.
In the case of Zhang Mou in Maitai County, Xinjiang, Zhang purchased a forged divorce certificate during the marriage and used the fake certificate to register for marriage with another person and live together. The court imposed multiple penalties for the crimes of bigamy and forging state-issued documents, sentencing him to one year in prison.
This case clearly states: The charges are separate, and the penalties are cumulative.
If Mr. Tang simultaneously committed both offenses, he may also be subject to multiple penalties according to the law.
04 Legal Boundaries: Conviction Requires Meeting Legal Standards
This case has received widespread attention. One important reason is that Tang could use the fake certificate to complete the cultivation and freezing preservation of extramarital embryos; while Ms. Zhu, with a genuine marriage certificate, could not directly handle the relevant embryos.
This difference reflects the need to further clarify issues regarding the determination of liability for illegal acts, the disposal of embryos, and the protection of the rights of the legal spouse.
Specifically, the legal predicament of this case lies in three aspects:
The application of the civil path - The law has not yet clearly defined the nature and disposal of "extramarital embryos", and the rights claim of the legal wife may face procedural obstacles.
The handling of the administrative path - The administrative authority has imposed a 5-day administrative detention on Tang, and the related illegal act has received administrative punishment. However, administrative punishment and the civil rights attribution of the "extramarital embryos", the rights protection of the legal spouse, and the application of the crime of bigamy in the criminal aspect apply different legal norms and procedures. Relevant issues still need to be handled through corresponding legal paths.
The threshold of the criminal path - Forging a marriage certificate for in vitro fertilization cannot be directly equated with bigamy. The criminal law requires "continuous and stable cohabitation as a couple", and there are differences between the two.
The problem also lies in the difference in proof standards. The Criminal Procedure Law requires a conviction of "exclusion of reasonable doubt", which is higher than the "high degree of probability" in civil cases. The proof of fact-based bigamy requires simultaneously proving the two elements of "couple name" and "continuous and stable cohabitation", and any lack of evidence in any of these aspects may affect the determination of fact-based bigamy.
In contrast, the facts to be proved in the crime of forging state-issued documents are more focused. This crime is an act crime - as long as it is proven that Tang committed the act of forging or using a forged document and had the subjective intent of direct intent, the proof is completed. It does not require causing a specific consequence or being a prerequisite of "continuous and stable cohabitation".
Therefore, this case may involve two aspects of criminal legal risks:
Whether the crime of bigamy can be established depends on whether there is evidence that meets the criteria for fact-based bigamy; whether the act of forging the document constitutes a crime depends on the determination of the nature of the document, its specific use, and relevant evidence.
The final outcome depends on whether the evidence in the case can meet the legal proof standards.
This reflects the basic requirements of the principle of legality of crimes and punishments. The criminal law sets a strict threshold for conviction to avoid convicting acts that do not meet the criminal standard. This principle applies to every case and every individual.
05 Extended Reflection: Whether the Hospital Should Bear Responsibility
This case also involves the issue of whether the hospital should bear corresponding responsibility.
Typically, the hospital only has the obligation of formative review - verifying the appearance of the original documents and making copies for archiving. Currently, domestic assisted reproductive institutions have not been authorized to connect with the civil system for substantive verification, making it objectively difficult to identify high-quality counterfeit documents. The Shanghai Health Commission's verification also confirmed that Zhongshan Hospital "has no evidence indicating any illegal behavior".
However, this conclusion has an important prerequisite: the hospital was unaware.
Once the legal spouse presents a clear objection with a genuine document, the hospital's duty of care may escalate from "formative review" to "timely re-examination, suspension of the process, and reporting to the supervision authority". Ms. Zhu reported the situation to the hospital in November 2025. Whether the hospital fulfilled the aforementioned obligations since then is a fact that needs to be clarified in the future. If it is verified that the hospital failed to fulfill its relevant obligations, it may need to bear civil compensation liability or face corresponding administrative penalties.
The key to determining responsibility lies in the time frame - the "unidentified fake certificates" during the form review stage and the "unstopping of the process" after receiving objections may receive different legal evaluations.
Conclusion
Law cannot solve all problems. When there is a discrepancy between social evaluation and legal judgment, we should not only pay attention to the public's demands for fairness and justice, but also adhere to the constitutive elements and proof standards stipulated by the law.
This article aims to analyze the possible legal issues involved in this case and the related procedural paths. The final determination of legal liability should still be based on the facts of the case, the evidence, and the conclusion made by the competent authority in accordance with the law.
If facing similar legal issues, it is recommended to promptly preserve relevant evidence and seek professional legal assistance based on the specific circumstances.
