Case Commentary

The Court of First Instance granted a parental order pursuant to section 12 of the Parents and Child Ordinance (Cap 429) in proceedings concerning a PRC surrogacy arrangement

The Court of First Instance handed down judgment in Re A & B [2019] 5 HKLRD 366 on 14 October 2019, allowing the application of the of a pair of commissioning parents (“the Applicants”), pursuant to section 12 of the Parent and Child Ordinance (Cap 429) (“PCO”) for an order that their twin children (“the Children”) born out of a surrogacy arrangement in Mainland China (“the Mainland”) be regarded in law as the Applicants’ children, and that retrospectively authorised the expenses incurred by the Applicants in connection with the surrogacy arrangement.

This is the second case in Hong Kong in which a parental order is granted to recognise the legal relationship between the commissioning parents and children born out of surrogacy.

Under the PCO, a child born out of surrogacy is deemed to be the child of the surrogate mother unless a parental order is granted. The statutory period for the application of a parental order is within 6 months from the birth of the child. In this case and the first case (FH & MH v WB & HB [2019] HKCFI 1748, which concerned a California surrogacy) in which the application was made out of time, the Court held that (i) it had the power to extend the 6-month period, and that (ii) in exercising such power it will consider a basket of factors including the length of the delay, the explanation for the delay, merits of the application and the prejudice that may be caused if no parental order is granted. In both cases, the Court extended the time for the application in particular having regard to the welfare of the child as the first and paramount consideration.

Notably, in this case, as part of the public policy consideration, the Court considered Mainland legal expert evidence on whether surrogacy would contravene public policy in Mainland China. The Court accepted the expert evidence that it would not, finding that although there was no direct ruling on the legality of a surrogacy arrangement, the Mainland Courts did recognize a child born out of surrogacy pursuant to the agreement of a married couple as a child of the marriage, even where only one party to the marriage was biologically linked to the child.

The Court also lay down procedural guidance in such applications, noting that as a general rule the surrogate mother and her husband (save where he was not aware of or did not consent to the surrogacy arrangement) should be joined as parties to the proceedings, and where the surrogacy arrangement and/or birth took place outside Hong Kong, expert evidence should be adduced to show inter alia whether or not surrogacy is permitted in that jurisdiction and how the law defines the legal relationship amongst the relevant parties.

Hectar Pun SC, Tara Liao and Allison Wong acted for the Applicants.

The judgment of the Court of First Instance can be found here