Fh And Another v Wb And Others

HCMP 1313/2018

[2019] HKCFI 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1313 OF 2018

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J U D G M E N T

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Index Paragraph

A. UNDISPUTED BACKGROUND

B. THE APPLICATION FOR A PARENTAL ORDER AND THE ISSUES

C. NATURE OF A PARENTAL ORDER AND WHAT IT ENTAILS

D. THE WELFARE ISSUE

E. THE TIME EXTENSION ISSUE

F. THE EXPENSES ISSUE

G. THE HRTO ISSUE

H. WHETHER A PARENTAL ORDER SHOULD BE GRANTED

I. COSTS OF THE OFFICIAL SOLICITOR

J. JOINDER OF SURROGATE MOTHER AND HER HUSBAND

K. THE WAY FORWARD ON PCO

A. UNDISPUTED BACKGROUND

1. This is an application for a parental order concerning B and G,a boy and a girl (“the Twins”) born out of a surrogacy arrangement. It calls for interpretation of the Parent and Child Ordinance, Cap 429 (“PCO”) and the Human Reproductive Technology Ordinance, Cap 561 (“HRTO”).

2. WB is the surrogate mother and HB is her husband.

3. FH and MH (collectively “the Applicants”) have been married for 17 years and are the commissioning father and mother respectively. The Applicants are in their forties █. They are Americans by origin but are also Hong Kong permanent residents.

4. FH and MH have █ natural children █, born in [the 20█].

5. In about 2011, FH and MH started discussing the idea of having more children in the family. However, owing to miscarriage and the fact that █ MH had undertaken █ surgery, it was unlikely for her to have another pregnancy without risk to her health and the mental well-being of the baby. The couple therefore consulted a doctor in California.

6. In 20█, FH and MH underwent a viral fertilization treatment. However, it was discovered that MH had ██ which would prevent the implantation of embryos. The doctor advised FH and MH to pursue a surrogacy arrangement.

7. FH and MH were introduced to the Agency in California which, in turn, introduced them to WB and HB.

8. The Agency introduced WB and HB to FH and MH.

9. FH and MH sought legal advice from their USA attorney who assured them that the surrogacy arrangement would be compliant with California law.

10. █ In 2015, the Applicants entered into a gestational carrier agreement (“GC Agreement”) with WB and HB whereby WB was to be the surrogate mother. Pursuant to the GC Agreement, the applicants made certain payments to WB. Two embryos were placed inside WB’s uterus.

11. █ In 2016, WB gave birth to the Twins in California.

12. On the following day, the Applicants filed an application, through a law firm, in the Superior Court of the State of California to establish parent-child relationship with the Twins. █ 8 days after birth of the Twins, the California Court declared the Applicants genetic and legal parents of the Twins; and declared WB and HB not to be legal parents of the Twins.

13. On the Twins’ Certificates of Live Birth issued in California, the Applicants are stated as their parents.

14. █ About 2 months after birth, the Twins entered Hong Kong as visitors on the strength of their USA passports and were granted dependent visas by the Director of Immigration (“the Director”). They have since lived here with the Applicants and █ elder children as a family.

15. In late 2017, when the family left Hong Kong for holidays, FH realized that the Twins’ dependent visas had expired and had not been renewed before the expiry date owing to an oversight. Therefore, the Twins had to re-enter Hong Kong after the holidays on the strength of temporary visitor visas.

16. In mid-January 2018, FH caused an application to renew the Twins’ dependent visas to be submitted. On 20 March 2018, in the course of answering the requisitions of the Director through solicitors, FH disclosed to the Director that the Twins were born out of a surrogacy arrangement and his intention to bring the present application.

17. Without dependent visas or a parental order, the Twins cannot be enrolled into a kindergarten in Hong Kong.

B. THE APPLICATION FOR A PARENTAL ORDER AND THE ISSUES

18. Under s.9(1) PCO:

“The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be regarded as the mother of the child.”

19. Under s.10 PCO:

“(1) This applies in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination.

(2) If –

(a) at the time of the placing in her of the embryo or the sperm and eggs or her insemination, the woman was a party to a marriage; and

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, … [inapplicable] the other party to the marriage shall be regarded as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be).”

20. Thus, in accordance with Hong Kong law, WB and HB are the legal parents of the Twins.

21. On 16 May 2018, FH and MH took out the present originating summons (“OS”) for:

(1) a parental order pursuant to s.12 PCO; and

(2) a declaration that the payments made by the Applicants pursuant to the GC Agreement were expenses reasonably incurred or otherwise were expenses authorized or subsequently approved by the court pursuant to s.12(7) PCO.

22. The court may grant a parental order if the conditions stated in s.12 PCO are satisfied, ie:

“(1) The court may make an order providing for a child to be regarded in law as the child of the parties to a marriage (referred to in this section as “the husband” and “the wife”) if—

(a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination;

(b) the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo; and

(c) the conditions in subsections (2) to (7) are satisfied.

(2) The husband and the wife must apply for the order within 6 months of the birth of the child or, in the case of a child born before the commencement of this section, within 6 months of such commencement. (emphasis added)

(3) At the time of the application and of the making of the order—

(a) the child’s home must be with the husband and the wife or either of them; and

(b) the husband or wife, or both of them, must—

(i) be domiciled in Hong Kong;

(ii) have been habitually resident in Hong Kong throughout the immediately preceding period of 1 year; or

(iii) have a substantial connection with Hong Kong.

(4) At the time of the making of the order both the husband and the wife must have attained the age of 18 years.

(5) The court must be satisfied that both the father of the child (including a person who is the father by virtue of section 10), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(6) [not applicable]

(7) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—

(a) the making of the order;

(b) any agreement required by subsection (5);

(c) the handing over of the child to the husband and the wife; or

(d) the making of any arrangements with a view to the making of the order,

unless authorized or subsequently approved by the court. (emphasis added)

(8) Subsection (1)(a) applies whether the woman was in Hong Kong or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

(9) Where an order is made under subsection (1), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner as may be prescribed, of the making of that order.”

23. S.12 (1) has been satisfied. The gametes of the Applicants were used to bring about the creation of the embryos in question. The Official Solicitor accepts that the Twins are genetically related to the Applicants. This is also borne out by the DNA reports submitted by the Applicants to the Immigration Department.

24. S.12(3)(a) has been satisfied. The Twins have since birth always lived with the Applicants and their elder children █ in Hong Kong.

25. S.12(3)(b) has been satisfied. The Applicants are domiciled in Hong Kong and have been habitually resident in Hong Kong for more than a decade █. FH operates a company in Hong Kong. WH █ does charitable work in Hong Kong.

26. S.12(4) has been satisfied as both Applicants are over the age of 18 years.

27. At a prior directions hearing, this court has directed that WB and HB be made parties to the OS because they are the only legal parents recognized under Hong Kong law. After being served with the OS, WB and HB have taken legal advice. They have given unconditional consent to the present application....