Becoming parents to your surrogate children

Surrogacy is a complicated subject that requires particular attention by the commissioning couple, i.e. the couple who commissions a third party to bear and give birth to a child on their behalf. One of the most important things to note is that the commissioning couple of a surrogate child must obtain a Parental Order in Hong Kong in order to secure their status and rights/responsibilities as the legal parents of the child in Hong Kong. This is regardless of any parental orders which may have been obtained overseas.

What it takes to get a Parental Order

To obtain a Parental Order from the Court, the parents will need to satisfy a number of statutory requirements set out in the Parent and Child Ordinance. These include, but are not limited to:

 (a)          the applicants jointly applying as husband and wife;

(b)         the gametes of the husband and/or the wife being used to create the embryo;

(c)          the applicants making the application within 6 months of the birth of the child; and

(d)         the child’s home being with the husband and/or wife at the time of the application and making of the Parental Order.

On top of this, commercial surrogacy arrangements are prohibited and any money or benefit in relation to the surrogacy and the making of the Parental Order can only be expenses that were reasonably incurred and/or sanctioned by the Court.

In reality, some commissioning couples may miss the 6-month deadline because they are unaware that they needed to make the application for a Parental Order. In that case, they will need to seek a time extension from the Court to make the application, which is often requested at the same time as the application itself. The Court will consider, as in all children matters, whether it is in the best interests of the child to allow this extension and make the Parental Order so that the child can benefit from the security of the parental rights/responsibilities that flow from it. Some relevant considerations may also include the reasons(s) behind the delay, obstacles that complicate the matter, and the quality of the parent-child relationship.

 Why it is important to have a Parental Order

 Until the commissioning parents obtain a Parental Order, they are not deemed to be the legal parents of the child in Hong Kong. This will affect their decision-making power over the child’s major and day-to-day arrangements, to include but not limited to immigration, education and medical treatment. Without this, the child’s welfare is at risk. Even if the child was born overseas and a declaration of parentage was obtained in their birthplace, this is insufficient.

The lack of a Parental Order potentially also has serious implications in the event of divorce of the commissioning parents, as without a Parental Order, the Court had been unable to make Orders with regards to a child’s custody and care and control until a 2024 judgment now makes it possible to do so if the child was treated and considered a “child of the family” even without a Parental Order in place. However, it is unclear how widely followed the 2024 decision is as there have yet to be publicly available cases that indicate so.

To avoid being stuck in the legal complications arising from a surrogacy arrangement, intended commissioning couples should seek advice early, to understand the potential issues that may arise.

This publication is general in nature and is not intended to constitute legal advice.  You should seek professional advice before taking any action in relation to the matters dealt with above.