HSC v T (Parental Order: Surrogacy in Mainland China) [2026] 2 HKC 829; [2026] HKCFI 770 (Alison Choy)
Alison Choy represented the 1st and 2nd Applicants in HSC v T (Parental Order: Surrogacy in Mainland China) [2026] 2 HKC 829; [2026] HKCFI 770.
The applicants husband and wife had been married for 33 years. They had been infertile with a failed in-vitro fertilisation attempt years ago. In 2020, the husband met an agent (‘S’) in Shenzhen, Mainland China who allegedly worked in a company that assisted the birth of children (‘Company’) via a friend (‘C’). The husband was assured by C that S was trustworthy. Yet, the applicants were not able to go further because of COVID-19. In mid-July 2023, the husband entered into two oral surrogacy agreements with S or the Company. There was no written agreement except that the husband was given a fee schedule ‘proposal for third party assisted birth’ which set out payment terms. S arranged for the surrogates (ie the respondents D and T, ‘Surrogates’) to be impregnated with embryos created using the husband’s sperms and donors’ eggs. The two children (‘Boys’) were born on the same date in 2024, with each Surrogate’s name appeared as mother for the respective boy. The Boys’ biological link with the husband was established by DNA tests. The Boys had since birth been raised in the applicants’ home in Shenzhen under the care of the wife and a nanny, whilst the husband shuttled between Hong Kong and Shenzhen. The idea was to bring the Boys back to the applicants’ home in Hong Kong upon completion of paperwork. The husband no longer had a household registration (戶口) in Mainland China since becoming a Hong Kong permanent resident. The only route through which the Boys could obtain household registration was through their respective birth mother. However, the Surrogates did not have household registration in Shenzhen and did not intend to bring up the Boys in any event. They were not willing to assist in obtaining identity documents for the Boys except at a price the husband was not willing to pay. The only residency or citizenship that the Boys could obtain appeared to be that of Hong Kong. The application for their HKID cards had to be done by filling out a form to be submitted to the Entry-Exit Department of the Public Order Bureau in Mainland China. The applicants were unable to submit the forms because the wife was not the birth mother. The applicants, being the commissioning parents, applied to the Court of First Instance for parental orders under s 12 of the Parent and Child Ordinance (Cap 429) by In November 2025, the Surrogates each filed an acknowledgement of service stating no intention to defend and gave consent to the making of the respective parental order. By the time of deliberation of the Judgment, each of the Surrogates had signed inter alia (1) Consent Form dated 8 April 2025 on which she stated that she understood the applicants were applying to the Hong Kong Courts for a parental order, she agreed voluntarily and unconditionally to the making of parental order with full understanding of what was involved, and she had not received money or other benefit apart from those under the medical procedures; (2) notarized Custody Agreement dated 26 November 2025 in which it stated that the husband shall be the person with direct custody of the Boy, and she authorized and acknowledged the husband’s full authority to handle all matters relating to the Boy, including applications for the Boy’s identification documents, household registration and transfer, educational arrangements, and medical treatment; and (3) their affirmations to confirm what was in the Consent Form (‘Affirmations’).
Held, granting extension of time to apply for and the parental orders sought, and approving payments made in respect of the surrogacy arrangements, that:
(1) The applicants had been married for 33 years at the time of the filing of the present application. Section 12(1)(a) and 12(1)(b) of the Parent and Child Ordinance (Cap 429) were satisfied as the two Boys were carried by the Surrogates as a result of placing in each of them an embryo through artificial insemination, and the husband’s sperms were used to bring about the creation of the embryo and his parentage was established by the DNA reports. Section 12(3)(a) and 12(3)(b) were satisfied as the Boys were living in Shenzhen with the applicants and would continue to do so until their move to Hong Kong, and the applicants were both domiciled in and had a substantial connection in Hong Kong. Section 12(4) was satisfied as the applicants were both over 18. Section 12(5) and (6) were satisfied in view of the Consent Form, Custody Agreement and the Affirmations (paras 18-24).
(2) The surrogacy arrangements were illegal under Hong Kong law, in breach of s 17 of the Human Reproductive Technology Ordinance (Cap 561), as well as illegal under the laws of the People’s Republic of China (paras 28-29).
(3) The husband was the father and each Surrogate was the legal mother of the respective Boy. The Surrogates as birth mothers could relinquish their custodial rights, but not guardianship rights, even by agreement. Nonetheless, due to the applicants’ legal marriage and wife’s willingness to raise and the actual raising of the Boys, the wife was deemed to be the Boys’ stepmother. Yet, there was no legal channel for the wife as a stepmother to acquire status as a legal mother in the PRC (paras 30-40, 48-49).
(4) The applicants were ignorant of the laws of PRC and Hong Kong, rather than deliberately flouting any law. The applicants wanted to be physically close to the Surrogates during the pregnancy and at the time of birth, so that they could cater to the Surrogates’ and the children’s needs more easily. They did not choose surrogacy in Hong Kong because quite early on in the search, they had already decided to do it through S. In light of C’s position at the Hospital and involvement in the whole surrogacy process, one could understand why the husband believed in C and S and made no further enquiries, after the husband personally met S in 2020 and 2023 to discuss the arrangements. Re CS & CTW [2025] 1 HKC 183, [2024] 5 HKLRD 70, [2024] HKCFI 2326 applied. Re A & Anor v X & Anor [2024] EWFC 304, [2025] 4 WLR 73, [2025] 1 FLR 900 distinguished (paras 41-49).
(5) Under s 12(7) of the Parent and Child Ordinance, the Court would not just look at payments made to the surrogate mother but at the wider picture and circumstances in which payments were made, including payments to agencies. The Court was to ask: (1) whether any money or other benefit had been given or received by the husband or the wife in consideration of the four matters set out in s12(7)(a)-(d); (2) if the answer to (1) was yes, (a) whether the money/benefit or any part thereof was for expenses, and (b) if so, whether such expenses or any part thereof was reasonably incurred– what was reasonable was a question of fact and the amount could vary greatly from place to place, reasonable expenses did not require the Court’s approval; (3) if the answer to (2)(a) was no or the expenses were not reasonably incurred, the Court should then apply three tests to decide whether to authorize or approve the ‘non-reasonable expenses’: (a) whether the sum paid was disproportionate to reasonable expenses, (b) whether the applicants were acting in good faith and without moral tint in their dealings with the surrogate mother, and (c) whether the applicants were parties to any attempt to defraud the authorities (para 50).
(6) The Court would be sensitive to the policy decision that commercial surrogacy agreements should not be regarded as lawful, as well as considerations of the child’s welfare. Where the welfare considerations demanded that a parental order to be made, the Court would only consider not making an order in the clearest case of abuse of or affront to public policy, or the expenses were of such a level as to raise the Court’s concern. The fact that the agency made a profit where the surrogate acted on an altruistic basis was a factor to be taken into account. A & B v E [2023] HKCFI 3143, [2023] HKCU 5424; FH & MH v WB [2019] 5 HKC 99, [2019] HKFLR 277, [2019] HKCFI 1748; and Re A and B (Parental Order: s 12 Parent and Child Ordinance (Cap 429)) [2019] 5 HKLRD 366, [2019] HKCFI 1749, [2019] HKCU 4124 followed (paras 51-53).
(7) As to expenses, the amounts for medicine, freezing for sperm, hospital fees for the Surrogates and the Boys appeared reasonable and did not require the Court’s approval. Yet, there was nothing to enable the Court to decide if the other items were benefits of expenses, reasonable or not, and disproportionate to other monies paid or not. The recipients were not the Surrogates and H paid as S directed. Although comparison to other cases was not usually useful, it enabled the Court to look at the overall expenses in respect of surrogacy and come to a finding that such items were not unreasonable and ought to be approved (paras 54-59).
(8) The applicants, being ignorant of the laws of PRC and Hong Kong, had acted in good faith and without moral taint in their dealing with the Surrogates. The Surrogates had been in touch with the husband since commencement of the proceedings. There were indications that they received what they had bargained for in the first place. Though the husband made large instalments in stages via opaque routes, there was no reason to doubt his good faith in honouring the oral agreements with S or in his dealings with the Surrogates. Further, there was nothing to show the applicants were parties to any attempt to defraud the authorities (paras 60-63).
(9) In the circumstances, the Court approved RMB 860,000 and RMB 650,000 respectively regarding the two Boys (paras 64, 75).
(10) Extension of time to apply for and the parental orders sought was granted. The Court was empowered to extend time, having regard to the welfare principle. As to whether the six-month time limit under s 12(2) was to be extended, the Court was to consider a basket of factors including the delay’s length and explanation; the merits of the application for a grant of a parental order and the prejudice that could be caused if no parental order was granted. The applicants were out of time by 3½ months. They had tried to apply for HKID cards for the Boys very shortly after their births. They had first sought legal advice when still within time. There was no evidence of intention to delay. Rather, the delay was caused by the applicants’ unawareness of the law on surrogacy, only realizing there was a problem with the Boys’ status when they were unable to complete the application for their identity cards in the PRC. They then spent months locating the Surrogates (who were unresponsive) through S and preparing documents before issuing the present proceedings. They had tried their best to remedy the situation by seeking the Surrogates’ assistance in applying for the identity cards for the Boys and attempted to legalize the wife’s status in the PRC Courts but to no avail. The Surrogates had abandoned the Boys to the husband’s care. FH & MH v WB [2019] 5 HKC 99, [2019] HKFLR 277, [2019] HKCFI 1748 followed (paras 65-69, 73, 74).
(11) The applicants were out of time by 3½ months. They had tried to apply for HKID cards for the Boys very shortly after their births. They had first sought legal advice when still within time. There was no evidence of intention to delay. Rather, the delay was caused by the applicants’ unawareness of the law on surrogacy, only realizing there was a problem with the Boys’ status when they were unable to complete the application for their identity cards in the PRC. They then spent months locating the Surrogates (who were unresponsive) through S and preparing documents before issuing the OSs. They had tried their best to remedy the situation by seeking the Surrogates’ assistance in applying for the identity cards for the 2 Boys and attempted to legalize W’s status in the PRC Courts but to no avail. The Surrogates had abandoned the Boys to H’s care. Neither H nor the Surrogates had household registration in Shenzhen (paras 66-69).
(12) The Boys’ lifelong best interests in having a legal mother called for parental orders to be issued. Social investigation reports confirmed the Boys were maintaining a strong and close relationship with their caregivers, ie the applicants, aunts and uncle. The Hong Kong social worker was of the view that the applicants were caring and performing their parental roles well, had the ability to provide the Boys stable and satisfactory care in view of their stable and satisfactory manpower, finance and living conditions in Hong Kong and Shenzhen. The Boys had developed close bonding to the applicants. To refuse a parental order would prejudice the Boys in that they would have no ‘mother’, even though the intention of the applicants and the Surrogates were to have the wife as the mother in the fullest (except biological) sense and the wife did discharge the role of a real social and psychological mother ever since the Boys were born. The Boys’ identity was in a precarious state. If anything unfortunate were to happen to the husband, the wife (not being the legal mother) could do little to give an identity to the Boys. NF v R [2023] 6 HKC 646, [2023] 5 HKLRD 58, [2023] HKCFI 2233 followed (paras 70-71, 73).
(13) Relinquishment of parental rights was not recognized in Hong Kong or PRC. The parental orders in respect of the Boys might not have the full transforming, irreversible, effect on the Surrogates and the Boys, because there had not been valid removal of the Surrogates’ rights and responsibilities as a mother under PRC law. Nevertheless, it was the best that could be done for the Boys in the circumstances. S v J [2017] 5 HKC 288, [2017] 5 HKLRD 129 followed (para 72).
(14) Service of the originating summonses in the present proceedings outside the jurisdiction did not require leave of the Court of First Instance. Securities and Futures Commission v Isidor Subotic (No 3) [2024] 1 HKC 539, (2023) 26 HKCFAR 488, [2023] HKCFA 32 applied (paras 88-90).
[The above is excerpted from the headnote to the report in HKC.]
