Surrogacy in Hong Kong, legally enforceable or not?

In the past, people who were infertile were left with no choice but accept the fact that they could not give birth to babies and develop a family of their own. With the advancement of technology, surrogacy has boomed recently in different countries such as India, Ukraine, Thailand, US etc. This allows couples who are infertile, homosexual couples, or even single people to become parent(s) of a child biologically related to them. However, the laws in Hong Kong relating to surrogacy are still rather reserved. Surrogacy agreements are not enforceable in courts and any forms of commercial surrogacy are illegal. One might end up being criminally liable by involving in surrogacy activities.

People having surrogacy done in other countries usually encounter problems when they are trying to establish their legal connection and relationship with the children when they are back in Hong Kong, even though the birth certificates of the children issued by the foreign countries where they had the surrogacy arrangements done listed the commissioning parents, i.e. the parents who want to have children of their own through surrogacy arrangements are the children’s parents.

Under the Hong Kong law, the legal parents of the child born through surrogacy is the surrogate mother, i.e. the person who gives birth to the child, and her husband/male partner, unless a parental order or adoption order is granted to make the commissioning parents the legal parents of the child.

In order to obtain a parental order, the court should be satisfied with the followings:

1. The commissioning parents should be husband and wife of over 18 years old;
   
   
2. At least one gamete should be from the husband or wife;
   
   
3. The application must be made within 6 months of the birth of the child;
   
   
4. The child must be living with the husband and/or the wife and at least either of them must be domiciled in Hong Kong; or have been habitually resident in Hong Kong throughout the past year; or have a substantial connection with Hong Kong;
   
   
5. Both the surrogate mother and her husband/male partner who are regarded as the legal parents have agreed freely and unconditionally to the making of the order; such agreement from the surrogate mother must be given more than 6 weeks after the child’s birth, unless she cannot be found or is/are incapable of giving agreement; and
   
   
6. No money or other benefit (other than for expenses reasonably incurred) has been given or received by the commissioning parents in relation to the making of the Order, obtaining consent from the legal parents or handing over the child unless authorised and approved by the court.

Those who are considering having children through surrogacy arrangements should note that section 17 of the Human Reproductive Technology Ordinance prohibits surrogacy arrangements from being done on a commercial basis.

The usual problems that commissioning parents encounter are the 6 months limitation for applying for the parental order and the prohibitions of commercial payments in relation to surrogacy.

The Hong Kong Court has in several published cases ruled that the 6-month period can be extended based on the consideration of the welfare of the child and what is in the child’s best interest. It was the Court’s view that the commissioning parents’ delay in making the application for parental order should not jeopardise the child’s right to have an identity and legal tie with the commissioning parents. It seems that the welfare of a child prevails over this 6-month statutory requirement.

Regarding the immigration status of the child born through surrogacy overseas, it has been ruled by the Court that the child born outside Hong Kong of a commissioning parent who at the time of birth of the child is a Chinese citizen and that it was based on the genetic link to the commissioning parent, permanent residency should be granted to the child and should not be dependent on the existence of parental rights. It is also the view of the immigration department that it should depend on blood/genetic relationship between the child and his natural parent, not the method of delivery of the child, nor by way of legal fiction. It would seem that as long as the natural parent of the child is a Chinese citizen, including Hong Kong permanent resident, the child born of that parent should be entitled to Hong Kong permanent residency.

As with the prohibition of commercial payments in surrogacy, the position is not so clear. Participating in surrogacy with payments involved is still considered illegal according to the legislation. Expenses such as medical expenses for the surrogate mother arising from her pregnancy and delivering the child are usually considered to be reasonable. However, payments of agency fees would certainly be considered as commercial. However, there is no clear guidance as to what payments are considered as commercial and what are not, which also means that the Court is left with a lot of room for discretion and can decide on whether payments should be approved and authorised on a case-by-case basis. One of the biggest factors considered by the court seems to be the best interests of the child.

Unlike most of our fellow common law jurisdictions which have their surrogacy laws updated to catch up with the rapid development and demand in surrogacy, our laws in this area are still very behind. Although it is understandable that the reluctance to change the law would be due to the consideration of traditional moral values and human trafficking issues, with the increasing demand and use of surrogacy arrangement, it might be time to reflect on this and update on the relevant area of laws.