Surrogacy, Application for Parent Order and Permanent Right of Abode in Hong Kong
I. Surrogacy and the Laws of Hong Kong on Paternity Relationships
Who is the legal mother of the child in a surrogacy relationship?
Under section 9 of the Parent and Child Ordinance (Cap. 429), the woman who carries the child (i.e. the surrogate mother) is the legal mother of the child and no other person.
Who is the legal father of the child in a surrogacy relationship?
According to Section 10 of the Parent and Child Ordinance (Cap. 429), the husband of the woman who carries the child or the male partner of the co-accepting surrogate parent (i.e. the husband or partner of the surrogate mother) is the legal father of the child, whereas the man who provides the gametes does not become the father by virtue of the fact that he has provided the sperm.
II. How can the husband or wife who provided the gametes be recognized as the legal parent of the child?
In a surrogacy relationship, how can the person who provides the gametes apply to become the legal parent of the child?
According to Section 12 of the Parent and Child Ordinance (Chapter 429) in order to apply to be the legal parent of a surrogate child, the husband or wife who has provided the gamete must apply for a Parental Order from the Hong Kong Court, which will confirm, by way of judgment, to override the legal requirements of the above proposed parental relationship and to recognize the husband or/and wife who has provided the gamete as the legal parent of the child. The conditions that need to be satisfied for the application include: –
- The embryo was produced using the gametes of the husband and wife or using the gametes of one of them.
- The husband and wife must apply for an order within 6 months of the birth of the child.
- At the time of application and at the time of the issue of the order – (a) the child must be of the same family as the husband and the wife or either of them; and (b) the husband and the wife, or either of them, must be domiciled in Hong Kong; or have been habitually resident in Hong Kong; or have had a substantial connection with Hong Kong for a period of 1 year immediately preceding the date of the application and the issue of the order.
- Both the husband and the wife must have attained the age of 18 years at the time the order is made.
- The father of the child (the husband of the woman with whom the child is to be born) and the woman with whom the child is to be born give their voluntary and unconditional consent to the making of the order in full knowledge of the matters involved. Except in the case of a person who cannot be found or who is incapable of giving consent, and where the woman with whom the child is carried gives her consent within 6 weeks after the birth of the child, such consent shall be void.
- No payment or acceptance by the husband or wife of any pecuniary or other advantage (other than expenses reasonably incurred) in connection with – (a) the making of a parental order; (b) the making of a parental order by the consent of the child’s father (the husband of the woman who carries the child) and the woman who carries the child; (c) the surrender of the child to the husband and wife; or (d) arrangements authorized by the court to enable the court to make an order, has been made. (d) arrangements for the making of an order by the court, other than arrangements authorized by the court or the giving or receiving of money and benefits subsequently permitted by the court.
III. Application for Hong Kong Permanent Residence Status by Surrogate Children Born Abroad
How to apply for settlement in Hong Kong and obtain Hong Kong permanent resident status for surrogate children born abroad to Hong Kong residents
If one of the surrogate child’s father or mother is a Hong Kong permanent resident at the time of the surrogate child’s birth, the conditions under which the surrogate child may apply for settlement in Hong Kong and obtain Hong Kong status are detailed in the article ‘Right of Abode in Hong Kong for Children Born to Hong Kong Permanent Resident outside Hong Kong’.
How to apply for right of abode in Hong Kong for surrogate’s overseas born child?
In addition to meeting the general legal conditions mentioned above, there is another important condition for a surrogate child born overseas, which is to apply for a parent order from a court in Hong Kong, thereby legally recognizing the legal parentage between the child and the Hong Kong parent who provided the gamete.
Is that still necessary to apply for a parental order in Hong Kong if I have already obtained a court order and birth certificate of the surrogate child overseas (e.g. in the USA)?
Yes. For a child born overseas as a result of surrogacy, a court judgement issued by an overseas court confirming paternity and an overseas birth certificate obtained on the basis of such overseas judgement are not valid in Hong Kong. It is necessary to apply for and obtain a parent order from the Hong Kong court again to recognize the paternity of the surrogate child to the gamete-providing parent under Hong Kong law.
Application for Parental Order by Surrogate Child: Relevant Cases
(1) How to deal with the custody of a surrogate child who has not applied for a parental order in divorce proceedings?
Re X & Y (Surrogate Children: Transfer of Proceedings) ([2023] HKFC 146)
Summary: In divorce proceedings, a couple (the commissioning surrogate parents), whose custody of a surrogate child was uncontested, applied to the court to grant their consent to the summons. However, the court found that the surrogate child had not applied for a parental order in Hong Kong after being conceived and born by the surrogate mother in the United States. The commissioning parents also had no intention of applying for a parental order. How would the court deal with the issue of custody of the children?
(2) Successful application for a parental order in a Hong Kong court for a child born by surrogacy in Mainland China
Abstract: This is a case in which the Hong Kong court granted a court-approved parental order to a child born of surrogacy carried out in Mainland China. The commissioned surrogate, whose parents were both Hong Kong residents, was conceived manually using the father’s gametes and an unknown person’s ovum and born in Mainland China by a surrogate mother. Unable to apply for a One-way Permit to return to Hong Kong, the court applied for a Parental Order and approval of the surrogacy costs of RMB 750,000.
Judgement: Based on the legal opinion issued by the Mainland lawyers, the court held that the legality of commercial surrogacy in Mainland China was uncertain and that the surrogacy contract was not invalid under Mainland law. The court approved the surrogacy costs of RMB 750,000 as reasonable and granted a parental order.
Other successful cases of surrogacy in Mainland China that resulted in parental orders in Hong Kong include:
(3) Pre-application to the court for approval of surrogacy costs before surrogacy is carried out, possible but very difficult
LH v LW ([2021] HKCFI 1998 (HCMP 707/2021))
Summary: A Hong Kong resident couple who intended to commission a surrogacy applied to the court for advance approval of the surrogacy expenses they intended to incur.
Held that: (1) the court has jurisdiction to make orders in respect of such prior applications before the surrogacy is carried out; and (2) in cases where prior applications for approval of surrogacy expenses are made after the surrogacy has taken place, unlike applications made after the surrogacy has taken place, they are dealt with by the court by applying different legal principles, and the threshold for granting such approval is considerably higher than that for an application for approval made after the fact. In relation to the commercial surrogacy arrangement in that case, the court refused the application for prior approval of surrogacy expenses.
(4) Parental order for surrogate child: child’s interests paramount consideration, extension beyond court period, unreasonable costs or court approval required
Summary: Surrogate parents, Hong Kong residents, provided two gametes, conceived and born by surrogate mother in California, USA, obtained parental order in California after birth, successful in first application for child’s dependant visa, discovered surrogacy by Immigration Department upon renewal of dependant visa, applied for parental order and authorization of surrogacy’s reasonable expenses.
Held that: (1) the principle that the interests of the child are the paramount consideration applies equally to an application for a parental order under section 12 of the PCO; (2) an application can be made beyond the statutory period (6 months after the birth of the surrogate child) and the court has a discretion to grant an extension of the statutory period of 6 months; and (3) there is a two-stage test on the issue of costs (whether they are reasonable and whether to grant them if they are not reasonable). Taking into account the paramount consideration of the child’s interests, the court will only refuse to grant costs in the clearest case of abuse and contrary to public policy. The court considers three principles (reasonableness of proportionality, good faith and absence of ethical concerns, and fraud on the government) in deciding whether to authorize unreasonable costs.
Similar recent case: Re CS vs SD (HCMP 1731/2023): surrogacy was banned in both countries involved, costs were unreasonable and grossly overdue, but the court considered the best interests of the child and granted the parental order.
(5) An application for a parental order for a surrogate child needs to be made by both parents who commissioned the surrogacy, and only one parent can’t make the application.
S v J [2017] 5 HKLRD 129 (HCMP 1857/2016)
Summary: Gametes were provided by a Hong Kong husband and Canadian wife who commissioned a surrogacy, and the child was born in India to an Indian surrogate mother, and the Immigration Department approved the child’s acquisition of the right of abode in Hong Kong without applying for a parental order (with the court’s reservation). The Family Court was unable to deal with a dispute over the custody of the child in divorce proceedings due to the absence of a parental order. As a result, the husband, who had commissioned the surrogate, applied for a parental order and the wife did not agree to join the application.
Held that: A Parental Order needs to be applied for by both the husband and the wife who commissioned the surrogacy (s.12 PCO), and cannot be applied for unilaterally, but an application for adoption can be made.
(6) The first application for a parental order by a surrogate child in Hong Kong was transferred from the Family Court to the High Court.
Re D (Parental Order: s.12 Parent and Child Ordinance (Cap.429)) [2015] 1 HKLRD 229 (FCMP60/2014)
Summary: The first case in Hong Kong where a surrogate child applied for a parental order and the Family Court decided to transfer the case to the High Court.
(7) Two countries involved in surrogacy (Thailand and Cambodia) both banned commercial surrogacy, and the Hong Kong court exercised discretion to grant a parental order
Re CS vs SD (HCMP 1731/2023): The court considered the best interests of the child and granted a parental order.
For child custody issues, please consult our Hong Kong matrimonial and family law team. For more information on Hong Kong divorce procedures, Hong Kong divorce child custody, Hong Kong divorce maintenance and property division, Hong Kong prenuptial property agreements, Hong Kong marriages registration and other related legal issues, please refer to our Hong Kong Matrimonial and Family Law Services page.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)