The legal positions in Hong Kong have long been uncertain when it comes to contemporary and controversial topics such as surrogacy arrangements.  Recently, the Hong Kong Court encountered a difficult question in S v J [2017] 5 HKLRD 129 whereby it revealed that the operation of the current legislations would undermine the welfare of the children of a pair of “commissioning couple” which has decided to divorce.

Background

In that case, S and J, being the husband and the wife respectively and both being permanent residents of Hong Kong, married in 2011 and decided to go through two surrogacy arrangements in India without seeking any prior legal advice.India was chosen because it is one of the few countries where the names of the genetic parents are permitted to be stated on the birth certificates of the children. By using their own gametes, the couple had two children both born in India in 2013 and subsequently they brought the children back to Hong Kong and had successfully applied for visitor visas for their entry.

In or about 2015, the relationship of the couple broke down and they initiated the divorce proceedings in the Family Court in Hong Kong.The husband applied to the Court for a parental order under section 12 of the Parent and Child Ordinance (Cap. 429) (“PCO”) in order to make the divorcing couple to be the legal parents of the children and permanently extinguish the parenthood of the surrogate parents in India. However, the wife did not appreciate the importance of obtaining a parental order and was concerned that such an order might affect her right to bring the children to Canada where she considered would be the appropriate place for the children’s upbringing, so the wife refused to participate in the parental order application proceedings.

After considering the relevant legislations, the Court ruled that an application for a parental order by the husband, being a single applicant, was legally incompetent because one of the requirements of applying for the said order is that the couple must both apply for it.Since the wife was not present in the application proceedings, the husband had to withdraw it.

The Lacuna in Law

The Court then went on to consider what orders should be made to secure the welfare of the children. One possible option was to appoint a guardian for the children under section 8D(2)(b) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”), which states that:-

“On application by any person, the court may, if it thinks fit, appoint the person to be the guardian of a minor if- (b) the minor does not have any parent, guardian or other person having parental rights with respect to the minor.”

Therefore, before appointing a guardian for the children under section 8D(2)(b) of the GMO, it is the requirement that the children themselves must have no “parent”.However, as a matter of law, the Court held that the combined effects of the relevant sections of the PCO is that the surrogate mothers and their respective husbands in India were still regarded as the legal parents of the children even though the divorcing couple’s own gametes were used to create the embryos and the names of the divorcing couple were printed on the birth certificates of the children.Moreover, the Court noted that Hong Kong is not a jurisdiction where it would recognise the relinquishment of the parental rights of the surrogate parents. Consequently, the Court considered that it had no jurisdiction to make a guardianship order for the children.

In view of the circumstances, the Court accepted that the situation that it was facing is indeed a “lacuna of the law”.Given that the marriage of the couple had completely broken down, the Court would have to figure out how to secure the welfare of the children and what would be in the children’s best interests. Ultimately, the Court exercised its discretionary power to invoke its wardship jurisdiction by making the children wards of the court, which means that major decisions in relation to the children’s welfare would have to be referred to the Court.The wife was allowed to have care and control of the children with access to the husband. The Court also expressly stated that the husband and wife might consider applying for adoption under section 5(1) of the Adoption Ordinance (Cap. 290) as a long term solution and they should act promptly to allow a proper and stable family life for the children.

Conclusion

Though the judgment reveals that the failure of the legislations to address the mixed question of surrogacy arrangements and divorcing proceedings would not debar the Court from exercising its wardship jurisdiction to secure the welfare of the children, the degree of uncertainty of the law in dealing with these kinds of contemporary andcontroversial issues remains extraordinarily high.Accordingly, any potential commissioning parents should bear in mind that legal advice should be sought before commencing any surrogacy arrangements.