Commercial surrogacy is a crime in Hong Kong wherever it occurs in the world, by sections 17 and 39(1) of the Human Reproductive Technology Ordinance, Cap 561. The offences are defined broadly and catch a wide range of conduct related to the making and receiving of payments in relation to surrogacy arrangements, though reimbursements for expenses are permitted. Section 19 additionally makes surrogacy arrangements themselves – ie agreements between commissioning parents, surrogate mothers, and (often) third party service providers – unenforceable. Commissioning parents and surrogate mothers should therefore take advice on the nature and effect of their intended arrangements, in almost all cases.

 

A parental order will often be required to vest parenthood in the commissioning parents. By section 9(1) of the Parent and Child Ordinance, Cap 429, the surrogate mother is regarded as the mother of the child. This provision applies wherever the arrangement took place and even in the case of gestational surrogacy, where the child is genetically descended from one or both of the commissioning parents. By section 10(2), the surrogate mother’s husband is regarded as the child’s father (unless he did not consent to the arrangement).

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The effect of these provisions is that surrogate children’s commissioning (and often genetic) parents lack parental rights and authority, which has obvious and significant administrative ramifications and which is in most instances demonstrably contrary to best interests. It can also mean that a child has two parents when outside of Hong Kong, but a different two when in Hong Kong.

 

Parental orders may be granted by the court under section 12 of Cap 429. They reverse the effect of sections 9 and 10 and provide for the child to be regarded in law as the commissioning parents’ child. Presently, the commissioning parents have to be in an opposite-sex marriage and over the age of 18 years in order to apply.

 

Applications have to be made within six months of the child’s birth, though there is now a power to extend that period (FH & MH v WB & HB [2019] HKFLR 277, [2019] HKCFI 1748). Parties should be prepared to cogently explain any delay and show that the surrogate mother (and father) will not be prejudiced by the extension.

 

Additionally, both the husband and wife have to unconditionally agree to the order being made. Where a party refuses, the court cannot make a parental order and there will be a disconnect between the child’s social and legal parentage. Parties can consider adoption, though absent or pending that, the court may invoke the inherent jurisdiction and make the child a ward of court “to fill the lacuna of the law until better arrangements are made as to their legal identities and status” (S v J [2017] 5 HKLRD, [2017] HKCFI 1656).

 

Thirdly, all payments made in relation to the surrogacy arrangement have to either be “expenses reasonably incurred” or otherwise authorised by the court. Receipts and detailed accounts should be kept by commissioning parents for this purpose. Care should be taken to ensure that surrogates are not commercially rewarded, though where this has happened, authorisation is still possible. The court will be anxious to know that the surrogate’s will has not been overborn and that there has been no exploitation (Re A [2019] 5 HKLRD 366, [2019] HKCFI 1749).

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Fourthly, it has recently been suggested that where a surrogacy arrangement takes place outside Hong Kong, expert evidence should be prepared showing whether or not surrogacy is permitted where it occurred, and how the parent/child relationship(s) are understood. This will assist the court with public policy question when deciding whether to grant a parental order (Re A). Last, the Director of Immigration considers that Chinese nationality passes by blood or genetic tie, rather than delivery. Thus, children of gestational surrogacies may inherit permanent residency status under article 24(2) of the Basic Law: S v J (above) [31]-[39].