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“Surrogate mother” refers to a woman who agrees to carry a child for another person(s), pursuant to an agreement, with the intention that the child would be handed over to that person(s) after birth. The child is to be conceived by artificial insemination or by in-vitro fertilization of surrogate mother’s ovum. The Parent and Child Ordinance (Cap 429) (“PCO”) states that a woman who is pregnant or has had a child as a result of the placing in her of an embryo or of sperm and eggs is to be treated in law, as the mother of the child. No other woman is to be regarded as the mother. The status of being ‘mother’ of a child is therefore based on gestation and not one's marital status or genetic connection with the child.

In S v J (Director of Immigration intervening) [2017] 5 HKC 288, the parties were husband and wife (“Commissioning Couple”). Two children were conceived using gametes of the Commissioning Couple and they were born to 2 surrogate mothers in India (“Surrogate Mothers”). The husband applied to the court for a parental order for the children, so that the Commissioning Couple could be declared as the children’s parents at law under PCO. However, the wife filed for divorce, resulting in the husband being incompetent in satisfying the conditions for a parental order application as only married couples could apply under s. 12 PCO. Consequently, leave was granted to the husband to withdraw the parent order application. The issue before the court was who could become the legal parents of the children.

The combined effect of the provisions of the PCO was that the children’s legal parents were their Surrogate Mothers and their husbands in India. Their relinquishment of parental rights was not recognised in Hong Kong. The court had no jurisdiction to make any guardianship order under s 8D(2)(d) of the Guardianship of Minors Ordinance (Cap 13). So, the Commissioning Couple were not recognised as the legal parents and had no rights over the children.

In the absence of parental order and in the interests of the welfare of the children, the court made the children wards of court under the inherent jurisdiction of the court and gave the wife care and control with access given to the husband to fill the lacuna of law until better arrangements were made as to their legal identities and status. As for the permanent residence status of the children, the Department of Immigration considered that the children were born outside Hong Kong to the father who, at the time of birth of the children, was a Chinese citizen. Based on the genetic link to the husband not the wife, despite no parental order being issued, the children could permanently reside in Hong Kong. The Hong Kong courts could exercise their jurisdiction over the children.

Find out more in:
1.Halsbury’s Laws of Hong Kong on Family Law
2. The Annotated Ordinances of Hong Kong on Parent and Child Ordinance, Cap. 429
3.Lexis® Practical Guidance also – Hong Kong Private Client
4. Surrogacy: Law, Practice and Policy in England and Wales

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