FH v WB [2019] 5 HKC 99

Eugene Yim appeared for 2 infant respondents in the Court of First Instance in FH v WB [2019] 5 HKC 99.

The applicants were the commissioning father and mother of twins born out of a surrogacy arrangement. WB was the surrogate mother and HB was her husband. In 2015, the applicants entered into a gestational carrier agreement with WB and HB whereby WB was to be the surrogate mother. Pursuant to the agreement, the applicants made certain payments to WB who in 2016 gave birth to the twins in California, the United States. Two months after birth, the twins entered Hong Kong and were granted dependent visas by the Director of Immigration. In 2018, the applicants made an application for a parental order under the Parent and Child Ordinance (Cap 429) (PCO) in respect of the twins. However, the application was 21 months out of time in breach of s 12(2) of the PCO which gave no power to the court to extend time. Also, the payments made by the applicants pursuant to the gestational carrier agreement may not necessarily be expenses reasonably incurred and might require subsequent authorisation or approval by the court under s 12(7) of the PCO. After being served with the Originating Summons, WB and HB had given unconditional consent to the application. The Official Solicitor had been appointed by the court to act on behalf of the twins and to address the court on issues of law. The Official Solicitor also supported the application.

Held, allowing the application:

Section 12 of the PCO

(1) The welfare principle did apply to interpretation of s 12 of the PCO. Having regard to the child’s welfare as the first and paramount consideration, the principles of statutory interpretation and authorities in the United Kingdom, it was held that the court did have power to extend time for making an application for a parental order. Though public policy required adherence to legislation, the welfare of a child prevailed over his/her parents’ delay. A parental order would be granted except in the clearest case of abuse of public policy (paras 50-51, 74-88).

(2) The court would also exercise its power to read down the 6-month time limit in s 12(2) of the PCO in such a way as to ensure that the essence of the protected constitutional rights of the child would not be impaired. Where legislation restricts or limits constitutional rights, such restriction or limitation could only be lawful if it satisfies the four-step proportionality tests in Hysan Development Co Ltd v Town Planning Board. The 6-month time limit had no legitimate aim apart from encouraging swift applications to the court to regularise the child’s identity and status. The 6-month period was an arbitrary time frame which gave no room for exercise of judicial discretion that takes account of individual circumstances. To forbid making an application 6 months after birth of the child could damage his/her fundamental rights in an irreparable way. The 6-month time limit therefore failed the first and the second steps. There were no other orders comparable to a parental order. The 6-month time limit was disproportionate to the purpose to be achieved under the PCO and the constitutional rights to be enforced that could affect the child for life. The time limit therefore also failed the third step. The society did not benefit from the grant of a parental order; the child did. To deny the child an order was unacceptably harsh. The balance was plainly in favour of the child. The time limit failed the fourth step. Hysan Development Co Ltd v Town Planning Board [2016] 6 HKC 58 ; (2016) 19 HKCFAR 372 applied (paras 104, 106-109).

(3) Whether the expenses were reasonably incurred within the meaning of s 12(7) of the PCO was a pure question of fact. In the present case, the unshaded items in Table 1 were reasonable expenses whereas the shaded items were non-reasonable expenses. Therefore, Although the non-reasonable expenses were quite high, given that the commissioning parents had not abused public policy and it would not be fair to deprive the child of a parental order where his parents were ignorant of the law and simply had no authorities in Hong Kong to guide them, those expenses should stand in the way of a parental order. However, before authorising those expenses, the court had to consider if those non-reasonable expenses contravened the Human Reproductive Technology Ordinance (Cap 561) (HRTO) (paras 112, 124-126, 144).

(4) Any question on reading down the HRTO should be left to a more appropriate case in future. The policy reason behind the HRTO was to prohibit commercial surrogacy. However, any penal sanctions that the HRTO might impose was plainly not targeted at the child but the adult perpetrators. The child’s rights under PCO and fundamental rights remained unaffected when one considered the best interests of the child to be of paramount importance (paras 171-172).

(5) In the circumstances of this case, the court found no abuse of public policy by the commissioning parents, who might themselves had been exploited by the agency. Welfare of the twins being of paramount importance, the court gave retrospective approval to the non-reasonable expenses incurred by the applicants. This approval should not be taken as a precedent that the court accepted payments to the tune of US$108,198 was the norm in these applications (para 173).

(6) Granting a parental order would meet the lifelong welfare of the Twins and best meet their psychological, physical and social needs. It would reflect the reality that they were genetically linked to the applicants and that they were a family. Any rights of WB and HB were removed so that the Twins can properly be regarded as children of the applicants, which in reality had always been the position. There was no abuse of public policy or counterveiling factors that should trump this conclusion. There was good explanation for the delay. Taking a holistic assessment of the circumstances, this application was clearly meritorious. Section 12(2) and (7) were satisfied. It was in the best interests of the Twins, throughout their lives, that a parental order be granted (paras 175-183).

Costs of the Official Solicitor

(7) The Official Solicitor was appointed on the court’s own motion because this case involved novel and complex points of law of importance that may have implications on other children born out of surrogacy. The applicants had acted properly all along. It was justifiable for the Official Solicitor’s costs to be publicly funded. The court therefore made no order as to costs. Re LB (Wardship: Costs) (HKLRD); sub nom TC formerly known as TSWC v KCTC [2011] 6 HKC 104 ; [2012] 1 HKLRD 266 applied (paras 186-187).

Obiter
Joinder of surrogate mother and father

(8) The surrogate mother and her husband must be made parties to the proceedings. The default position should be the same as under the United Kingdom Family Procedure Rules. That was, in fact, no different from civil proceedings in Hong Kong. On the other hand, the court may be flexible in terms of dispensation with service or removal of respondents in an appropriate case (para 197).

(The above is taken from the headnote in HKC.)

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