Re CS & CTW (Parental Order: s.12 Parent and Child Ordinance (Cap 429)) [2024] 5 HKLRD 70, [2024] HKCFI 2326
Alison Choy represented the 1st and 2nd applicants (at the first hearing and subsequent written submission) in Re CS & CTW (Parental Order: s.12 Parent and Child Ordinance (Cap 429)) [2024] 5 HKLRD 70, [2024] HKCFI 2326.
The applicants were husband (H) and wife (W). They were the commissioning parents of twins born in Thailand to a Thai surrogate mother (the Surrogate). The surrogacy agreement had been entered into by H in 2016 through an agency which introduced the applicants to a fertility clinic in Cambodia. In 2017, the Surrogate was impregnated with a donor’s eggs and H’s sperm in Cambodia. The Surrogate was 19 years old at the time and living in Thailand at the time of the twin’s birth in 2018. The agency then obtained Thai birth certificates for the twins, in respect of which H was registered as their father and the Surrogate was named as the mother. The twins were issued with Thai passports. Later in 2018, the Surrogate and the twins together with the applicants travelled to Hong Kong and the twins were subsequently issued Hong Kong identity cards and HKSAR passports on the strength of their biological link with H. Since that time, the twins lived with the applicants as a family.
In 2021, H filed for divorce and the applicants found the need to apply for parental orders in respect of the twins pursuant to s.12 of the Parent and Child Ordinance (Cap.429) (the PCO). The divorce proceedings were stayed and the applicants issued an originating summons in 2023 seeking various orders, which raised the following issues: (i) whether the surrogacy agreement was in breach of Hong Kong and foreign laws; (ii) whether the Court should extend the time limit imposed by s.12(2) of the PCO; (iii) whether the payments of around $1,034,900 in connection with the surrogacy agreement should be authorised or approved by the Court under s.12(7) of the PCO; and (iv) whether parental orders should be granted.
Held, granting the extension of time sought, authorising part of the payments made, and granting W and H parental orders, that:
Whether the surrogacy agreement was in breach of Hong Kong and foreign laws
- (1) The surrogacy agreement was in breach of Hong Kong and foreign laws. Given that the IVF procedure was conducted on the Thai Surrogate for surrogacy and commercial purposes in Cambodia, it was illegal under Cambodian law, which prohibited IVF procedures for commercial purposes. The surrogacy was also unlawful under Thai law, which did not permit privately arranged transfer of parental rights, and in breach of its policy against commercial surrogacy. Further, there was a breach of s.17 of the Human Reproductive Technology Ordinance (Cap.561) in Hong Kong which prohibits surrogacy arrangements on a commercial basis, whether made in or outside Hong Kong. (See paras.42-81.)
Whether the Court should extend the time limit under s.12(2) of the PCO
- (2) The following matters were pertinent in granting the extension of time. First, while it was hard to believe that the applicants would not have sensed there was something against the law for them to enter into the agreement outside of Hong Kong, there was no evidence that they did so in deliberate violation of the laws of Cambodia or Thailand. It was their desperate wish to have children which drove them to enter into the agreement without proper advice. Second, they were unaware of the need to make an application for a parental order until after the commencement of their divorce proceedings and there was nothing to suggest the late filing of the application was caused by deliberate delay or ill-intention. Third, the twins’ best interests were important. They, being wholly innocent, should not be barred from the benefits that parental orders would bring simply because of their parents’ failure to ascertain fully the legal requirements if all other conditions were met. There were good reasons shown, and the extension of time for the application was granted (FH v WB [2019] 5 HKC 99 applied). (See paras.82-93.)
Whether the payments to the agency/Surrogate should be authorised or approved by the Court under s.12(7) of the PCO
- (3) The overall expenses gave a clear picture to the Court of the commercial nature of the surrogacy agreement, which was prohibited in Hong Kong, Cambodia and Thailand. The payments to the agency and the Surrogate were plainly unreasonable when compared to the different parts of the world where the surrogacy took place. This was a plain case of violation or affront to the public policy of three jurisdictions (FH v WB [2019] 5 HKC 99, Re A & B (Parental Order: s.12 Parent and Child Ordinance (Cap.429)) [2019] 5 HKLRD 366, Re STP (Expenses for Surrogacy and Parental Order) [2021] 4 HKLRD 719 applied). (See paras.94, 106, 108-109.)
- (4) Despite part of the expenses being unreasonable, the Court also considered other factors. First, the best interest of the twins, since without the approval or authorisation of the expenses, it was virtually impossible to consider granting the parental order. Second, the genuine ignorance of the applicants to apply for a parental order on time. Third, the lack of precedent in Hong Kong on the issue of surrogacy back in 2016 when the agreement was entered into. (See paras.112-116.)
- (5) Despite the breaches of the law and policies against commercial surrogacy in three jurisdictions, in all the circumstances, there was room for the Court to exercise leniency where the best interest of the twins demanded it. The twins’ lifelong legal status with the applicants surpassed the latter’s ignorance of the law. Accordingly, the Court approved the relevant unreasonable expenses in the amount of about 84% of the total sum incurred. (See paras.117-118.)
Whether parental orders under s.12 of the PCO should be granted
- (6) All the statutory requirements under s.12 of the PCO were met with the grant of extension of time and approval of unreasonable expenses/benefits. Although H was named as the father on the twins’ birth certificates, he was not the “legal” father according to Hong Kong or Thai law. Neither was W the legal mother. Going forward, without the applicants being acknowledged as the legal parents of the twins, there would be difficulties and embarrassment both to parents and the children. Parental orders would reflect the intentions of the applicants and the Surrogate and the reality of the twins’ life and would not prejudice anyone. (See paras.119, 122.)
- (7) Since relinquishment of parental rights was not recognised in Hong Kong or under Thai law, any parental order granted may not have the full transforming, irreversible effect on the Surrogate as described in FH v WB because there had not been any valid removal of her rights and responsibilities as a mother under Thai law. Each jurisdiction had the right to decide its law on parentage and it was not binding on another jurisdiction. Accordingly, the parental orders would only bind the Surrogate and the domestic community in Hong Kong, and it would not bind, for example the Thai government (S v J (Surrogacy: Wardship) [2017] 5 HKLRD 129 applied; FH v WB [2019] 5 HKC 99 considered). (See paras.123, 125-126.)
Observations on the way forward
- (8) (Obiter) This case, which breached the laws in three jurisdictions, sounded out a warning to commissioning parents. If, in future, they wanted to run the argument that they were ignorant of the law when entering into the surrogacy arrangement, they should satisfy the court of the matters set out at para.136 of this judgment including: (i) why they had not entered into a surrogacy arrangement in Hong Kong, and what due diligence they had done to ascertain the relevant Hong Kong law; (ii) why they had entered into a surrogacy arrangement out of Hong Kong and what due diligence they had done to ascertain the law in the foreign jurisdiction(s); (iii) who, in law, were the parents of the child born out of surrogacy; and (iv) what steps had been taken to remove the parental rights of that/those parents. (See para.136.)
[The above is excerpted from the headnote to the report in HKLRD.]
