Introduction

With the advance in medical technology, the process of in vitro fertilization enables a child to be born through a surrogate mother using the eggs and sperm of the intended parents (“Commissioning Couple”). Some couples who are infertile, past childbearing age or physically unfit for childbearing may see surrogacy as their last hope of having genetically connected children.

However, hurdles remain for Hong Kong couples who intend to arrange for surrogacy. To name a few, commercial surrogacy is prohibited under section 17 of the Human Reproductive Technology Ordinance (Cap. 561) (the “HRTO”), even if it takes place outside Hong Kong in a jurisdiction where commercial surrogacy is legal. Surrogacy agreements are also unenforceable under section 18 of the HRTO. This means that Hong Kong courts will not step in to compel either party to perform the agreement.

Legal parenthood

More importantly, the mere fact that the embryo is formed with the Commissioning Couple’s sperm and egg does not entitle them to legal parenthood. Under section 9 of the Parent and Child Ordinance (the “PCO”), the woman who has carried the child (i.e. the surrogate mother in the context of surrogacy) is by default regarded in law as the mother of the child. Further, under section 10 of the PCO, her spouse is deemed the father of the child if he consented to the pregnancy.

Parental status is important in many aspects especially when the child is born outside Hong Kong. For instance, it affects the child’s right of abode, eligibility to education and welfare, as well as administrative matters such as who can sign consent forms for the child when he/she is still a minor. The uncertainty in acquiring parental status can be a major deterrent to intending Commissioning Couples.

Pursuant to section 12 of PCO, the Court has power to grant parental order to the Commissioning Couple in the context of surrogacy. However, one important requirement under section 12(7) is that the Court must be satisfied that no money or other benefit, except reasonably incurred expenses, has been given or received by the Commissioning Couple, unless authorized or subsequently approved by the court.

In light of such background, intending Commissioning Couples may want to ensure in advance that the Court is going to authorize their expenses to be incurred from the surrogacy arrangements, in order to prevent unexpected difficulty in applying for parental order when the child is born. The question is whether and in what circumstances the Court will give such prior authorization. This was considered by the Court of First Instance in the recent case LH v LW [2021] HKCFI 1998.

LH v LW

Factual background

The Applicants, married couple and Hong Kong permanent residents, intended to pursue a surrogacy arrangement with an agency (the “Agency”) in Minnesota in the United States. They sought a declaration that all payments agreed to be paid to the Agency are reasonably incurred, or that the Court should authorize such expenses in advance.

Issues

The issues before the Court were:

1.    whether the Court has the power to give prior authorization for expenses under the Applicant’s intended surrogacy arrangement; and

2.    if it does, what tests should be applied.

Whether the Court has power to give prior authorization

In light of the closing wordings of section 12(7) and its legislative history, the Judge concluded that the Court has power to give authorization in advance for expenses under section 12(7) of PCO.

Relevant tests

The Judge set out the tests for prior authorization under section 12(7) of PCO as follows:

1.    whether the intended surrogacy arrangement is legal under Hong Kong law;

2.    whether the intended surrogacy arrangement is legal under the law of the jurisdiction where the intended surrogacy agreement will be entered into and where it is intended that the baby would be delivered;

3.    whether the child is conceived or born;

4.    in the case of a commercial surrogacy, whether there is criminal prosecution under HRTO;

5.    whether the projected expenses are reasonable; and

6.    if the projected expenses (or any part of them) are not reasonably incurred, whether the Court should exercise its discretion to authorize them.

Decision

The Judge found that the surrogacy arrangement proposed by the Applicants, which involves fees of the Agency and marketing expenses, is commercial surrogacy in breach of section 17 of HRTO. As it is illegal under Hong Kong law, the Court will not authorize the projected expenses regardless of their reasonableness. Therefore, the application was refused.

Yet, the Judge went on to comment that had the surrogacy arrangement been legal, she might have authorized most of the proposed expenses.

Comparison with existing case authorities

In LH v LW, the Court took a different approach from previous case authorities where the child has already been born via surrogacy and the commissioning parents then applied for parental order and sought retrospective approval of their incurred expenses (see FH v WB [2019] 5 HKC 99, [2019] HKCFI 1748; Re A and B [2019] 5 HKLRD 366, [2019] HKCFI 1749).

In the latter cases, the Court was the most concerned about the welfare of the child, since the decision of granting a parental order or not has far-reaching impact on the child’s life. Therefore, for subsequent approval of expenses, the Court only considers a 2-stage test, namely (1) whether the expenses were reasonably incurred and (2) if not, whether the Court should exercise its discretion to authorize or approve them.

Yet in the context of prior authorization, the Court need not consider the welfare of an imaginary child that has neither been born nor conceived. It thus places more emphasis on the policy of the legislation against commercial surrogacy and is mindful not to create a defence against the criminal offence under section 17 of HRTO.

Takeaways

The key takeaway from LH v LW is that if a couple pursues commercial surrogacy, it is impossible to secure a guarantee in advance that parental order will be granted, as the Court will not give prior authorization of any proposed expenses under an illegal arrangement. At the same time, the Court has kept the door open as to authorizing proposed expenses in advance for altruistic surrogacy. Given the importance of acquiring parental status as well as the potential criminal liability, it is advisable for intending Commissioning Couple to carefully assess the risks involved.