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Hectar Pun SC and Vivien Leung Speak on Surrogacy Law for the Hong Kong Family Law Association

For a long time, surrogacy has remained a complex and grey area of the law in Hong Kong, with very few cases coming before the Courts. The most recent case Re A & B (Parental Order: s. 12 Parent and Child Ordinance (Cap 429) [2019] 5 HKLRD 366 (“A & B”) represented an important step in the evolution of the law. DCC’s Hectar Pun SC – leading counsel in A & B – and Vivien Leung were recently invited by the Hong Kong Family Law Association (“HKFLA”) to talk about this fascinating subject at a members-only webinar entitled “Surrogacy and Legal Parenthood: Latest Developments in Hong Kong” on 20 July 2020.

We were honoured to have the presence of HKFLA Chairlady Samantha Gershon in Chambers, who gave the opening remarks at this virtual event that was live streamed from DCC. After kicking off with an overview of the legal definitions of surrogacy, biological parents and legal parents, Hectar delved into the status of surrogacy arrangements at law, addressing the issues of illegality, extraterritoriality and unenforceability. He also discussed the legal principles which govern parental orders, including the Courts’ criteria for approving surrogacy payments as “expenses reasonably incurred”.

 

(L-R): Hectar Pun SC, Samantha Gershon, Vivien Leung

Vivien walked the audience through selected cases including of course A & B, which concerned a married couple living in Hong Kong who paid RMB 300,000 to an agency in Mainland China for the surrogate mother, resulting in the birth of twin girls through using ovum from an anonymous donor and the husband’s sperm. Aside from covering the interesting factual scenarios, she analysed the issues which arose in various cases, such as the tension between “reasonable” and “non-reasonable” expenses in s. 12(7) of the Parent and Child Ordinance and s.17 of the Human Reproductive Technology Ordinance (Cap 561) which prohibits commercial surrogacies.

Rounding off the webinar, Hectar and Vivien shared a list of practical tips and answered a string of thought-provoking questions from the audience. We would like to express our thanks to the HKFLA for inviting DCC to participate in and co-organise this event.