{"id":284915,"date":"2017-11-03T08:44:20","date_gmt":"2017-11-03T00:44:20","guid":{"rendered":"https:\/\/www.tannerdewitt.com\/legal-obstacles-surrogacy-remain-hong-kong-2\/"},"modified":"2024-06-18T09:42:47","modified_gmt":"2024-06-18T01:42:47","slug":"legal-obstacles-surrogacy-remain-hong-kong-3","status":"publish","type":"post","link":"https:\/\/www.tannerdewitt.com\/zh-hans\/legal-obstacles-surrogacy-remain-hong-kong-3\/","title":{"rendered":"Legal obstacles to surrogacy remain in Hong Kong"},"content":{"rendered":"

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.<\/p>\n

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. <\/strong><\/p>\n

The obstacles<\/strong><\/p>\n

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<\/a>, Cap 561.<\/p>\n

A further obstacle is contained in the Parent and Child Ordinance<\/a>, Cap 429, which provides that the woman who carried <\/em>a surrogate child, i.e. the surrogate mother, is to be regarded as the child\u2019s mother. The father is determined to be the surrogate mother\u2019s husband (if any). No other woman is to be regarded as the mother and the surrogate mother\u2019s 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.<\/p>\n

In a successful international surrogacy arrangement this legal fiction can significantly hamper the child\u2019s upbringing in Hong Kong. Administrative, medical and social arrangements are often harder to put in place. The child\u2019s \u201clegal status\u201d is often incongruent with birth certificates issued overseas which name the commissioning parents.<\/p>\n

We are likely to see more circumstances of this kind in Hong Kong, since internationally arranged gestational surrogacy \u2013 where the parent or parents share a genetic link with the child \u2013 is becoming available in an increasing number of jurisdictions.<\/p>\n

Parental Orders<\/strong><\/p>\n

A question that immediately faces commissioning parents in Hong Kong is how to obtain legal parenthood.<\/p>\n

By section 12 of the Parent and Child Ordinance (Cap 429) the courts are given specific power to order such parenthood \u2013 but restrictions apply, such as:-<\/p>\n