Legal update: Legal obstacles to surrogacy remain in Hong Kong

Surrogacy is becoming an increasingly popular option for families hoping to start a family in Hong Kong. The acceptance of non-traditional family structures, increased access to reproductive technologies and cheaper international travel mean that surrogacy is no longer always altruistic, and it is less frequently kept within circles of families and friends. Most importantly, surrogacy often delivers a child that is the genetic descendant of one or two commissioning parents and not the surrogate mother. For same-sex couples, surrogacy may offer the only viable chance of raising children.

In this article we explore some of the challenges that the law can present to those couples wishing to have a child by surrogacy and how to overcome them. 

The obstacles

Hong Kong regulates surrogacy by criminalising commercial aspects and regulating the remainder. Commercial surrogacy is a criminal offence, wherever it occurs in the world, and surrogacy arrangements cannot be enforced by the Human Reproductive Technology Ordinance, Cap 561.

A further obstacle is contained in the Parent and Child Ordinance, Cap 429, which provides that the woman who carried a surrogate child, i.e. the surrogate mother, is to be regarded as the child’s mother. The father is determined to be the surrogate mother’s husband (if any). No other woman is to be regarded as the mother and the surrogate mother’s husband will have to show that he did not consent to the arrangement if he is to avoid the legal obligations of parenthood. These provisions are global. They engage regardless of where the surrogacy took place.

In a successful international surrogacy arrangement this legal fiction can significantly hamper the child’s upbringing in Hong Kong. Administrative, medical and social arrangements are often harder to put in place. The child’s “legal status” is often incongruent with birth certificates issued overseas which name the commissioning parents.

We are likely to see more circumstances of this kind in Hong Kong, since internationally arranged gestational surrogacy – where the parent or parents share a genetic link with the child – is becoming available in an increasing number of jurisdictions.

Parental Orders

A question that immediately faces commissioning parents in Hong Kong is how to obtain legal parenthood.

By section 12 of the Parent and Child Ordinance (Cap 429) the courts are given specific power to order such parenthood – but restrictions apply, such as:-

• The order can only be made in favour of parties to a marriage;
• The application has to be made within six months of the child’s birth;
• Both commissioning parents have to agree “unconditionally” to the order; and
• If the surrogacy was commercial, the court has to approve the arrangement.

Thus where one or more of these conditions is not met, but yet where the surrogacy arrangement has been successful, seemingly intractable tensions can arise. At law the child’s “parents” bear no genetic relationship to the child, are often overseas and do not intend to raise the child. Yet in fact the child’s best interests will almost inevitably demand that she is raised by her genetic, commissioning, intending parents. Resolving the various problems that this tension can throw up will, it seems, be left to the courts in individual cases. This is a prospect couples will wish to avoid.

Planning

Careful planning and consideration is therefore advised. Foreign jurisdictions, such as California, will issue birth certificates in the commissioning parents’ names. With that in place couples may apply to have their child raised in Hong Kong under the dependant visa regime. Genetic children will inherit their commissioning parents’ permanent residence status.

Those who wish or need to apply through the Hong Kong courts should be careful to ensure that commercial payments have not been made. Parties should also explore how complications will be handled. Surrogate arrangements have broken down, for instance, where complications have arisen in the pregnancy and where it has been detected that the child will suffer health problems. Parties will wish to have considered and reached consensus on these possibilities, not least since the arrangements are unenforceable.

For an analysis of a recent decision by the High Court, please see our article on S v J (Director of Immigration intervening) (unreported, HCMP 1857 of 2016, 8 September 2017).

Joanne Brown

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

For more information and/or advice on surrogacy laws in Hong Kong as and their effects on you or your family, please contact:

Joanne Brown
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.