What Is Surrogacy?

Surrogacy is assisted reproduction that heterosexual or same sex couples may turn to in order to help them start a family. This is typically done by asking a surrogate mother to give birth to a baby on their behalf. Depending on the type of surrogacy that is chosen by the family, the child can be genetically linked to at least one of the commissioning parents.

Is Surrogacy Legal In Hong Kong?

While surrogacy is permitted in Hong Kong, it is heavily regulated. A surrogacy agreement is usually entered into between the commissioning parents and the surrogate mother to agree on the surrogacy arrangement such as surrogacy fees, medical expenses and perhaps even more importantly, the legal parentage of the child i.e. who are the legal parents of the child. However, such agreements are not recognised by the Hong Kong Courts and are unenforceable. Therefore, problems with the surrogacy arrangement could arise if the relationship between the commissioning parents and the surrogate mother turns bad.

The situation is made worse by the fact that the Hong Kong Courts criminalise the commercial aspect of surrogacy whereby it is forbidden for the surrogate mother to receive any payment for her services and/or for an agent to receive any payment for finding a surrogate mother for hopeful parents. Such restrictions are applicable regardless of whether the payment is made or received in Hong Kong or elsewhere. In reality, it is difficult to find a potential surrogate mother and secure her services without any payment. As such, commissioning parents could find themselves criminally liable simply because they are having a child through commercial surrogacy.

Legal Parentage Of The Child

Hong Kong Courts regard the surrogate mother to be the legal mother of the child, regardless of whether the process took place in Hong Kong or elsewhere. The situation with the child’s father parentage is more complicated. If the surrogate mother was married at the time of fertilisation,  her husband will be considered the legal father of the child unless he did not consent to his wife becoming a surrogate mother at the time. If the surrogate mother was not married at the time, the male partner who attended the surrogacy treatment services with her will be considered the legal father.

Parental Order

Upon the child’s birth, the surrogate mother and her husband or male partner will become the legal parents of the child. As such, the commissioning parents are required to apply to the Hong Kong Courts for a Parental Order which confirms that they are the legal parents of the child instead.

The following are the conditions that the commissioning parents have to meet in order for the Court to grant a Parental Order:

1. The gametes of either or both of the commissioning parents were used in the creation of the embryo;
2. The application for a Parental Order was made within 6 months of the birth of the child;
3. The child’s home must be with either or both of the commissioning parents at the time of making an application for a Parental Order;
4. Either or both of the commissioning parents must be:
   • Domiciled in Hong Kong (an individual is domiciled in Hong Kong if he or she has physically lived in Hong Kong and intends to make Hong Kong their home for an indefinite period);
   • Has or have been a habitually resident of Hong Kong for 1 year prior to the application (an individual is a habitual resident of Hong Kong if he ordinarily resides and returns to Hong Kong after visiting other places); or
   • Has or have substantial connection with Hong Kong (substantial connection are all the personal factors of the husband or wife which connect him or her to Hong Kong).
5. The commissioning parents must be at least 18 years of age when the Court grants the       Parental Order;
6. The surrogate mother and father must be shown to fully understand the effect of the Order and freely and unconditionally agree to the grant of the Order by the Court. The surrogate mother’s unconditional agreement shall not be valid if it is given by her less than 6 weeks after the birth of the child; and
7. There shall not be any exchange of monetary benefits or other kinds of benefits, except expenses reasonably incurred, for the surrogate parents’ agreements in subparagraph 6 and for making the Parental Order.

In light of the fact that Hong Kong does not recognise surrogacy agreements, the Court maintains control over the legal parentage of a child.  Any potential commissioning parents should be well aware of the criminality of commercial surrogacy when securing the services of a surrogate mother and the hurdles for securing legal parentage of a child in Hong Kong.