Surrogacy is accepted as a common phenomenon in different countries but in Hong Kong the laws regulating surrogacy are, in comparison, rather conservative. Commercial surrogacies are prohibited, and the formal procedures that commissioning parents face when they arrive with their child in Hong Kong to be recognised as the legal parents are outdated. Hong Kong only recognizes the surrogate mother and her partner as the legal parents of the child. The commissioning parents are required to make a formal court application to obtain a parental order or an adoption order for the child to legalise their parent-child relationship, irrespective of whether a foreign birth certificate has them listed as the parents.
The need for parental/adoption orders
The complexities of family life can lead to couples separating and this is a reality that is faced by all couples including commissioning parents. A question that has arisen in a recent case in Hong Kong is whether there is a need for a parental/adoption order before the Hong Kong courts have jurisdiction to make orders in relation to a child’s custody or education in matrimonial proceedings, where the child was born through a commercial surrogacy arrangement.
According to the recent judgment in HC formerly known as HWH v WYH [2024] HKCFI 1157 for the purposes of any matrimonial proceedings in which the court is required to make an order for custody and education of a child of the family you are no longer required to obtain a parental or and adoption order before making a court application.
This case was transferred from the Family Court to the High Court to determine the issue of whether a child born to a surrogate mother can be considered a ‘child of the family’ of the commissioning parents to allow custody orders to be made in the divorce proceedings between the commissioning parents.
Background
The relevant background to the matter HCMC 3/2023 [2024] HKCFI 1157 can be summarised as follows. The Wife and Husband were married in 2012 and separated in 2019. They entered into two surrogacy arrangements in the USA through which 2 of their 3 children, X and Y, were born.
The couple reached an agreement for the Wife to have custody, care and control of all three children, but the court declined to make an order in terms of X and Y. No parental/adoption order had been made to legalise the parent-child relationship. Counsel for the Wife lodged submissions that the lack of parental/adoption order did not hinder the Family Court from making the appropriate orders in the best interests of X and Y under the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) as they were children of the family under section 2 of the MPPO.
Section 2 of the MPPO contains the definition of ‘child‘ and ‘child of the family‘:
- child (子女), in relation to one or both parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;
- child of the family (家庭子女), 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 their family;”
B. Chu J commented that the definition of child is not an exhaustive list and is not limited to categories stated in the statutory definition but extends to include (i) legitimate, non-adopted and any other children of one party, or of both parties to the marriage and (ii) the definition is wide enough to include a child born out of surrogacy arrangements with the gametes of one or both parties to a marriage.
The legislative intent behind the MPPO was considered and it was found that the legislative intent was for the definition of ‘a child of the family’ to be extended and not have to be a child of either or both of the parties. It was accepted that there is no material difference of the definitions between the Hong Kong legislation or the Matrimonial Proceedings and Property Act and the Children Act in England. The relevant test is whether a child has been “treated” by both parties as a child of the family.
The Court was referred to the authority of Re A (Child of the Family) [1998] 1 FLR 347 where the wife petitioned for divorce against the husband. The couple had a granddaughter who had been living with them. The judge in that case found that the granddaughter was a child of the family as she had been treated as a child of the family and had all her needs cared for. It was accepted that Family Court judges in Hong Kong have applied the following passage from Rayden & Jackson: Divorce and Family Matters (18th ed, 2005) Volume 1 at section 10.130 which states that “…it is not necessary for a child of the family to be a child of either party so that if, as sometimes happens, a young relative of either the husband or the wife lives with the parties and is treated by both of them as one of the family, he or she will be a child of the family…“.
The outcome
The Court held that:
- A ‘child of the family’ under the MPPO is not required to have any natural relationship with the parties to the marriage in order to be “treated as a child of the family”;
- Children born under surrogacy arrangements are a ‘child of the family’ for commissioning parents;
- There is no requirement for a parental/adoption order, or a sanction of a surrogacy arrangement to be obtained before a child is considered to fall within the definition of ‘child of the family’; and
- There is jurisdiction for the Hong Kong Courts to make orders under s.19(1) of the MPPO for a child born out of surrogacy, i.e. orders for custody and education provided that the child has been treated by the commissioning parents as a child of their family.
Final considerations
This judgment is a welcome development in the laws of Hong Kong which showcases the ever-changing complexities faced by families. In line with other jurisdictions it is hoped that the legislation can be reviewed to update the relevant laws to accommodate these complexities.
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.
