Deacons’ Family Law Practice was recognized as the “Family and Matrimonial Firm of the Year” in the Benchmark Litigation Asia-Pacific Awards 2023, and has extensive experience in handling diverse children matters in addition to financial matters.
Last year, we published a series of articles on Mainland/ Hong Kong Cross-Boundary Marriages (see Article 1 on Matrimonial Property rights, Article 2 on Nuptial Agreements, Article 3 on Division of Matrimonial Assets, Article 4 on Asset Dissipation, and Article 5 on Third Party Interests in Family Proceedings).
This year, we have been focusing on children matters including child relocation, wardship applications etc. (Series on Children Matters – Children Relocation). This article explores how the Hong Kong Courts approach issues in relation to surrogate children.
Introduction
In recent years, there has been an increasing number of cases where couples have a child born out of surrogacy overseas (where commercial surrogacy is allowed), and then relocate back to Hong Kong and wish to enrol the child in a school and they encounter issues regarding legal parentage. For such couples contemplating divorce, they often have questions about how the courts deal with matters relating to surrogate children.
In Hong Kong, under s.2 of the Matrimonial Proceedings and Property Ordinance Cap.192, “child of the family” in relation to the parties to a marriage means a) a child of both those parties and b) any other child who has been treated by both those parties as a child of the family.
Surrogacy law in Hong Kong
In Hong Kong, surrogacy is mainly governed by the Human Reproductive Technology Ordinance (Cap. 561) (HRTO), with the Code of Practice on Reproductive Technology and Embryo Research (Code”) published by the Council on Human Reproductive Technology in January 2013 also providing helpful guidance on surrogacy arrangements.
A “surrogacy arrangement” is defined under s.2 of the HRTO as “an arrangement by virtue of which a woman to whom it relates would be a surrogate mother were she to carry a child pursuant to the arrangement.” A “surrogate mother” is “a woman who carries a child:-
(a) pursuant to an arrangement
(b) conceived by a reproductive technology procedure.”
According to §12.2 of the Code, only married couples may pursue a surrogacy arrangement if the wife is unable to carry a pregnancy to term and no other treatment option is practicable for her. In the process, only gametes of the couple can be used (s.14 HRTO).
However, commercial surrogacy is strictly prohibited in Hong Kong (s.17 HRTO) and all surrogacy arrangements are unenforceable (s.18 HRTO). In fact, §12.6 of the Code mandates that both the commissioning couple and the surrogate mother should be informed of the same.
With a view to protecting the surrogate mother, a woman should be assessed on her suitability to be a surrogate mother by a registered medical practitioner who should consider her marital status, history of pregnancy and physical and mental fitness to carry a baby. A woman should not be allowed to be a surrogate mother if she is at higher risk of suffering from complications of pregnancy (§12.3 Code). Further, women under the age of 21 must not be a surrogate mother (§12.4 Code).
To ensure that all parties concerned understand the medical, social, legal and moral implications of surrogacy, §12.7 of the Code mandates that counselling must be provided by a multi-disciplinary team of the reproductive technology centre for the commissioning couple and surrogate mother and her husband (if any).
Legalising the parent-child relationship
As a starting point, the surrogate mother and her husband/male partner are assumed to be the legal mother and father of a child born out of surrogacy under ss9 and 10 of the Parent Child Ordinance (Cap.429) (PCO).
However, the commissioning couple can apply for a parental order for a child to be regarded in law as their child under s.12 of the PCO provided thatthe following conditions are met:-
1. The application is made within 6 months of the birth of the child (s.12(2) PCO)
It is possible that the Court will grant a time extension to commissioning couples who make the application after their child has reached 6 months old. As reaffirmed by the High Court in AB v E [2023] HKCFI 3143 §53, with the best interests of the child as the first and paramount consideration, the Court will consider a basket of factors, including the length of the delay, the explanation for the delay, merits of the application, the prejudice that may be caused if no parental order is granted, and the unawareness of the legal requirement.
2. At the time of the application and of the making of the order, the child’s home must be with the couple or either of them. Also, both the couple or either of them must satisfy the jurisdictional requirement by i) being domiciled in Hong Kong or ii) having been habitually resident in Hong Kong for 1 year or iii) having a substantial connection with Hong Kong. (s.12(3) PCO)
3. At the time of the making of the order, the couple must each have attained the age of 18. (s.12(4) PCO)
4. The court must be satisfied that both the father of the child (including a person who is the father by virtue of s.10 of the PCO), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. (s.12(5) PCO)
5. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the commissioning couple. (s.12(7) PCO)
The commissioning couple may consider seeking an adoption order under the Adoption Ordinance (Cap.290).
Recent High Court Case in Hong Kong
The recent High Court case of HC v WYH [2024] HKCFI 1157 confirms that the Hong Kong courts have jurisdiction to make custody and maintenance orders regarding children born out of surrogacy in divorce proceedings.
In this case, the couple had one child from natural birth and two children born out of surrogacy arrangements in the US. Five years after the surrogate children were born, the parties agreed to divorce and reached a global settlement on all child care and maintenance arrangements.
However, the Family Court refused to make orders in respect of the two surrogate children because the couple did not obtain a parental order or adoption order. The case was then transferred to the High Court for determination.
In recognizing that a child does not need to have any biological ties to the parties to the marriage in order to be treated as a “child of the family”, the Court held that a child born out of surrogacy can be recognized as a “child of the family”, even if the commissioning couple did not legalize the parent-child relationship by a parental order or adoption order, or have the surrogacy arrangement sanctioned by the Court.
Our Family Law team at Deacons is experienced in handling matrimonial and family matters involving children issues. Please reach out to us if you would like to know more.
For Further information, please contact:
Sherlynn Chan, Partner, Deacons
sherlynn.chan@deacons.com
