The laws in Hong Kong relating to parental rights to children give an arguably narrow definition of “father” and “mother”, they also state that you have no right as a father to your child if you are not married to the mother of your child, and you have no right as a mother to your child if you did not give birth to your child.
A recent case reminds us that the number of surrogacy arrangements are on the rise and parties in commercial surrogacies arrangement are not protected by the laws in Hong Kong and they most likely face legal challenges.
Introduction
In HC formerly known as HWH v. WYH [2023] HKFC 146, the Hong Kong Family Court found itself grappling with the intricate web of legal issues surrounding surrogacy. Presided over by Her Honour Judge Grace Chan, the case shed light on the complexities surrounding parental rights, custody, and the jurisdiction of the court.
Background
The case revolves around a couple, the Wife and the Husband, who married in 2012. After bearing their first child in 2015, the couple entered into two commercial surrogacy agreements in California in 2017. They also obtained a pre-birth order from the California Court, declaring the Parties as the legal parents of the unborn children and negating the legal parentage of the surrogate mothers. The Children were subsequently born in 2018 through the surrogacy arrangements. However, their marriage did not go as planned. In 2022, the Wife filed for divorce, and the Husband did not contest it. The Parties settled their difference and filed a consent summons, seeking, among other things, custody, care, and control of the Children for the Wife, with the Husband enjoying reasonable access. Notably, the Parties did not pursue a parental order or initiate any adoption procedures in relation to the Children in Hong Kong. The learned Judge is hesitant in making orders pertaining to the surrogated Children (but not the Parties’ first child) as their legal status remains unclear.
Navigating surrogacy laws
The Family Court faced the challenge of navigating the intricate matrix of surrogacy laws in Hong Kong while examining the case. Some analysis include Section 17 of the Human Reproduction Technology Ordinance, Cap. 561 (“HRTO”), which prohibits commercial surrogacy agreements; Sections 9 and 10 of the HRTO, which defines “mother” and “father” under Hong Kong law; Section 5 of the Parent and Child Ordinance, Cap. 429 (“PCO”), which presumes a man to be the father of a child under several contexts; Section 12 of the PCO, which sets out the legal framework for the application of a parental order; and Section 21 of the Guardianship of Minors Ordinance, Cap. 13, which provides that the natural father of an illegitimate child should not be regarded in law as the father of that child unless the exceptions apply. Yet Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) enables the Family Court to deal with matters regarding “child of the family” which does not, on its face, exclude surrogate children. These laws shaped the court’s analysis of the case and calls for clarification from the court above.
Findings
Judge Grace Chan has made these conclusions in this case:
- The Wife is not legally recognized as the Children’s mother. Instead, the legal parentage is attributed to the surrogate mothers and their respective husbands (if they have one).
- The purported relinquishment of parental rights by the surrogate mothers is not recognised under Hong Kong law.
- The legal position is unclear as to whether the Husband can be regarded in law as the father of the Children and his rights towards the Children even if the surrogate mothers were unmarried and did not have a male partner at the relevant time.
- Without any application by the Husband and sanction of the Court under the GMO, the Husband lacks legal standing to give any rights to the Wife in the very first place. despite there is a consent between the parties, the court lacks jurisdiction to make such an order.
- The court cannot compel the parties to pursue a parental order or commence adoption procedures.
- In the best interest of the surrogated Children, making no order is not deemed appropriate and for the matter to be transferred to the High Court where it can exercise their inherent jurisdiction to protect the welfare of the Children.
A call for clarity
Recognizing the involvement of public interest, complexities of the novel legal questions raised, and the absence of injustice resulting from the transfer’s delay, the court transferred the case to the Court of First Instance. This case has ignited a fervent call for clarity in Hong Kong’s legal system. As society continues to evolve, traditional concepts of parenthood are being redefined, necessitating progressive legislation that accommodates the complexities of modern family dynamics. This case serves as a catalyst for lawmakers and legal authorities to engage in a broader dialogue, paving the way for a comprehensive legal framework that ensures the protection of children’s best interests while respecting the rights of all parties involved.
Final considerations
Surrogacy is a complex issue that poses challenges to legal regulation in Hong Kong. Currently, commercial surrogacy is prohibited by law, carrying the risk of criminal penalties. This raises significant ethical and legal considerations regarding the interplay between the law and the inherent human right to establish a family. While the right to start a family is universally acknowledged as a fundamental human right, Hong Kong authorities have established stringent regulations to ensure the well-being and protection of all parties involved, including the surrogate mother, intended parents, and the child. Striking a balance between the aspiration to form a family and the necessity for legal safeguards remains a crucial aspect of the ongoing discussions and debates surrounding surrogacy in Hong Kong.
Parents who have children from surrogacy arrangement should seek immediate legal advice and take necessary action to secure their rights as parents of their children.
If you require assistance or have any query related to surrogacy, please do not hesitate to contact our Family team.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
