Surrogacy in Hong Kong and Parenthood for Children of Surrogacy Arrangements

Surrogacy laws of Hong Kong, unlike other common law jurisdiction (e.g. UK), are relatively conservative and complex. Up to the date of publication of this article, any forms of commercial surrogacy remain illegal in this jurisdiction as provided for in section 17 of the Human Reproductive Technology Ordinance (Cap. 561) (hereinafter referred to as “HRTO”). Nevertheless, with effect of the seemingly contradicting section 12 of Parent and Child Ordinance (Cap.429) (hereinafter referred to as “PCO”), the court may order the commissioning parents to be the legal parents of the child of surrogacy arrangement by a parental order. As to the monies involved in surrogacy agreements, the court may retrospectively authorise the expenses incurred should they be reasonable amounts. In fact, the court in FH v WB [2019] HKCFI 1748 recognises the tension between the HRTO and the PCO.

Parental Orders

In this jurisdiction, the general position is that the surrogate mother shall be the legal parent of the child. However, legal parenthood can be granted through a parental order pursuant to s.12, PCO subject to fulfilment of, inter alia, the following requirements:

1. The gametes of the husband or the wife, or both, were used to bring about the creation of the embryo;
2. Application for the order must be made within 6 months of the birth of the child (hereinafter referred to as the “6-month period”);
3. The husband or wife, or both of them, must – (1) be domiciled in Hong Kong; (2) have been habitually resident in Hong Kong throughout the immediately preceding period of 1 year; or have a substantial connection with Hong Kong;
4. At the time of the making of the order both the husband and the wife must have attained the age of 18 years;
5. Both the surrogate mother and her husband must have full knowledge and agree to the making of the order more than 6 weeks after the birth of the child, unless the surrogate mother cannot be found or is incapable of giving such agreement;
6. No money or other benefits (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of the making of the order, the surrogate mother’s agreement or the handing over of the child, unless authorised or subsequently approved by the court.

For any commissioning parents who wish to make an application for parental orders outside the ‘6-month period’, the court in FH opines that ‘strict adherence to it can lead to the absurdity’ and ‘welfare of a child prevails over delay’.  Best interests of the child remain to the critical factor for the court to consider whether to grant a parental order.

In FH, the court has also considered impact of s. 7 of HRTO on the application under the PCO. After reviewing the policy behind HRTO, the court viewed that the legislative intent of HRTO is not to prohibit commercial surrogacy, but to prevent the abuse of the payor and payee involved, and protect children from being treated as commodities for illegitimate purpose. However, each case rests on its own facts, and FH is not to regarded as a precedent that the court accepts the high amount (US$108,198 in this case) involved as norm in such applications.