Surrogacy is an arrangement whereby a woman agrees to become a "surrogate mother" and carry a child for intended parents.
Gestational surrogacy involves the surrogate mother carrying an embryo created by in vitro fertilisation technology - in which it is developed from an egg fertilised outside the human body - with the intention that the child be handed over to the couple after birth. The intended father and mother of the child are the "commissioning father" and "commissioning mother".
Under Hong Kong laws, the commissioning couple must satisfy certain requirements before they can enter into a surrogacy arrangement. They have to be legally married, with at least one of them fulfilling the domicile or habitual residency requirement. Medical evidence must also be produced certifying that the commissioning wife is over the age of 21 and unable to carry a pregnancy to term, with no alternative treatment practicable for her.
It is a criminal offence in Hong Kong for any person to make or receive payment, in the city or elsewhere, for a surrogacy arrangement. Offenders face a maximum jail term of two years and a fine of up to HK$100,000.
This applies to any form of participation in setting up a surrogacy arrangement on a commercial basis and includes compiling information for use in the agreement.
A recent English case also held that solicitors who charged legal fees to a commissioning couple for preparing a surrogacy agreement committed a criminal offence.
It is therefore not surprising that surrogacy arrangements are uncommon in Hong Kong. Consequently, there seems to be a growing trend of infertile couples entering into such arrangements overseas, such as in the United States, where commercial surrogacy is legal. Upon the surrogate mother's confirmation of relinquishing all rights to the unborn child, an American court order can be obtained, even before birth, awarding full custody to the commissioning couple.
This order enables the hospital to enter the names of the commissioning couple, with no reference to the surrogate mother, in the birth certificate.
When the couple bring their newborn into Hong Kong, they can expect questions from immigration officers, particularly if suspicious circumstances exist. An example would be the commissioning mother departing close to the birth date of the child.
With the birth certificate showing the couple as the child's parents, the child will probably be issued a temporary visa, but a formal residency/dependent application will need to be made later. The Immigration Department may ask further questions and request the commissioning mother's pregnancy records and the child's hospital records.
If the department suspects the child was born under a surrogacy arrangement, the couple may be referred to the police for further investigation.
The birth certificate is not conclusive proof that the commissioning couple are the lawful parents of the child; the surrogate mother remains the child's legal mother. It is only when the child is later adopted or when the commissioning couple have obtained a parental order that they can assume full parental rights to and responsibility for the child.
The parental order must be made within six months of the child's birth; it does not seem possible to extend the application time. The courts will decide whether the amount received by the surrogate mother is reasonable in compensating her for medical expenses and loss of earnings.
If she has received money over and above the medical expenses and loss of earnings and this amount is not authorised or approved by the courts, it may constitute a commercial arrangement.
Intended parents wishing to take advantage of overseas surrogacy arrangements should understand the possible criminal ramifications in Hong Kong and potential hurdles in securing residency or dependent status for their child.
Jonathan C. Y. Mok is a solicitor advocate with Higher Rights of Audience in civil practice