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Parenting: newborns to toddlers

Surrogacy in Hong Kong: all you need to know about the risks and legal ramifications involved

Hongkongers face strict rules surrounding surrogacy, which is only an option for married couples, and remains rare in the city because it falls into a legal grey area. We help you get to grips with the facts 

PUBLISHED : Saturday, 24 March, 2018, 2:47pm
UPDATED : Sunday, 25 March, 2018, 6:51pm

The controversial topic of surrogacy hit the headlines again recently with the story of a Japanese millionaire who has fathered 13 children through Thai surrogate mothers. 

The 28-year-old businessman was granted sole parental rights to the children by the Juvenile Court in Bangkok, because the mothers had signed away all rights to them and DNA tests proved that he was the biological father of all the children. 

Bangkok court gives Japanese man who lived in Hong Kong custody of 13 children born to Thai surrogate mothers

It remains an odd case, however, particularly as nine of the babies were found in one flat in Bangkok and four others had been sent to Cambodia, prompting suspicions of human trafficking. The father, Mitsutoki Shigeta, said he simply wanted a big family. 

Surrogacy can be a wonderful solution for parents who cannot have children naturally. They are now able through medical ingenuity to have children who are genetically connected to them. 

In some parts of the world, notably the United States, such arrangements are closely regulated and surrogacy is accepted as a viable alternative to adoption and other medical processes, such as artificial insemination and in vitro fertilisation. However, extreme care must be taken because surrogacy is not legal in many places, and surrogacy agreements that may be accepted in one jurisdiction will not be recognised in another. With the life and status of a child at stake, it is crucial to get this right. Whereas the public may be well informed about the medical advances, it is often remarkably uninformed about the ramifications of surrogacy and fertility law.

In Hong Kong, surrogacy agreements are unenforceable and commercial surrogacy is illegal. As a result, surrogacy remains rare in Hong Kong because it is a grey area of the law with potential criminal ramifications and risks. By making surrogacy arrangements unenforceable in Hong Kong, the court maintains control. It is not banned, however; arrangements are regulated by the Parent and Child Ordinance and allowed where, in view of the clinical condition of the commissioning couple, the commissioning wife is unable to carry a pregnancy to term and no other treatment option is practicable for her. 

Hong Kong imposes strict rules and surrogacy is only an option for married couples. Once the baby is born, the commissioning parents should apply for a parental order within six months. Parental orders will only be made if the parties are over 18 years old and either are domiciled, habitually resident for a year, or have a substantial connection with Hong Kong. Also, it is a condition that the gametes of either one or both parties were used to facilitate the embryo creation, and the surrogate and her partner have agreed unconditionally to the making of the order. It must be shown that the child’s home will be the applicants’ too. 

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In addition, the surrogate herself must be over 21 years old and must have been assessed by a registered medical practitioner, who is not responsible for the reproductive technology procedure and must consider her marital status, history of pregnancy, and physical and mental fitness to carry the baby. 

Since commercial surrogacy is illegal in Hong Kong, the court must be satisfied that no money or other benefit, other than expenses reasonably incurred, has been given or received, unless authorised or subsequently approved by the court. What is considered “expenses reasonably incurred” has been the subject of litigation in England and Wales, but cases on surrogacy rarely come before the courts in Hong Kong (there has been one reported case). Under the Human Reproductive Technology Ordinance, the criminal sanctions are a fine of HK$25,000 and six months imprisonment, increasing to HK$50,000 and two years’ imprisonment for a second offence – and this is not confined to within Hong Kong. It applies to an act done whether inside or outside Hong Kong. 

In addition to criminal sanctions, the most serious consequence where the surrogacy agreements are not enforceable is that the children may be considered to be without a fixed country of residence. Without such status, they are not subject to The Hague Convention which protects children in the event of child abduction.

On the other hand, one of the major risks in surrogacy arises when a surrogate mother does not want to transfer legal rights to the biological parents. The woman who bears the child is the legal mother until a parental order is in place, stating otherwise. 

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A surrogate mother is the one who carries a child pursuant to an arrangement made before she begins to carry the child. Such an arrangement is made with a view to any child carried pursuant to the arrangement being handed over to, and the parental rights being exercised by, another person or persons and conceived by a reproductive technology procedure. Reproductive technology includes artificial insemination, in vitro fertilisation, and egg and embryo donations. This is regardless of where the mother was when the embryo or sperm and eggs were placed in her. 

By the same token, if that mother is married at the time of the surrogacy, the husband will be the legal father of the child until a parental order is made, unless it can be proved that he did not consent. If the birth mother is not married, the legal father may be a male partner who “attended treatment services” with the surrogate. In the absence of a male partner, the donor of the sperm is deemed to be the legal father. The legal father, therefore, must be sure that any arrangements made do not land him with a liability to maintain a child he did not think would be his responsibility. 

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With all the criminal ramifications and risks in surrogacy, it is crucial to the welfare of the children and their future stability that all parties concerned, including the birth mother, the husband and wife hoping for a child, the legal father (if different from the husband), fully understand the implications of surrogacy and take proper legal advice before embarking on this route to starting a family.

Rita Ku is a partner at Withers and Philippa Hewitt is a professional support lawyer at Withers