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HCMP 1571/2018
[2019] HKCFI 1749
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1571 OF 2018
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IN THE MATTER of an application under Section 12 of the Parent and Child Ordinance, Cap 429 |
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A |
1st Applicant |
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B |
2nd Applicant |
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| Dates of Hearing: |
18 April and 24 September 2019 |
| Date of Judgment: |
14 October 2019 |
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J U D G M E N T
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A. INTRODUCTION
1. This is the application of A (“the Husband”) and B (“the Wife”) (collectively referred to as “the Applicants”) for an order that:
(1) C and D (“the Twins”), both girls be regarded in law as the children of the Applicants under section 12 of the Parent and Child Ordinance, Cap 429 (“PCO”); and
(2) the payment in the sum of RMB300,000 made by the Applicants pursuant to and in connection with the surrogacy agreement are expenses reasonably incurred as referred to in section 12(7) of PCO and be retrospectively authorized.
B. THE FACTUAL BACKGROUND
2. The Applicants are a married couple and have lived in Hong Kong together since 2008. The Husband is a permanent resident of Hong Kong. The Wife got her permanent ID card on 2019.
3. They entered into a surrogacy arrangement via the Agency in Mainland China, with E acting as the surrogate mother in a hospital using ovum from an anonymous female donor and sperms of A. The Applicants paid a total of RMB300,000 for the surrogacy arrangement.
4. As a result of the surrogacy arrangement, the Twins were born in Mainland China on 2017. The Applicants have been the primary carers of the Twins since their birth. The Twins have lived in Hong Kong with the Applicants in their family home since they were brought to Hong Kong in 2017 on dependent visas.
5. The Husband has been confirmed to be the biological father of the Twins by the DNA test reports of GDT Ltd dated 24 January 2019.
6. The Twins have acquired US citizenship at birth and their US passports were issued on 2019.
7. Having obtained E’s consent to the present application and an anonymity order, the Applicants commenced these proceedings on 27 September 2018.
8. Upon the court’s directions, E and the Official Solicitor have been served.
9. E has confirmed via Ho & Associates that she agreed to the application for parental orders and the court excused her from further participation in these proceedings since 4 January 2019.
10. The Official Solicitor has no objection to the present Application. The court is thankful to the Official Solicitor for rendering assistance in this and another surrogacy case, FH & MH v WB & HB (HCMP 1313/2018), [2019] HKCFI 1748, Au-Yeung J (“the Judgment”) the research of which is equally useful to this case.
C. THE LEGISLATIVE FRAMEWORK
11. Section 9(1) of PCO provides that:
“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.”
12. Section 10 of PCO provides that:
“(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).”
13. Section 12 of PCO provides that:
“(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.
(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) Subsection (5) does not require the agreement of a person who cannot be found or is incapable of giving agreement and the agreement of the woman who carried the child is ineffective for the purposes of that subsection if given by her less than 6 weeks after the child’s birth. (inapplicable)
(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 authorised or subsequently approved by the court.
(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.”
14. Thus, in accordance with Hong Kong law, E was the legal mother of the Twins. Her husband was regarded as the father unless it was shown that he had not consented to the surrogacy arrangement.
D. JOINDER OF SURROGATE MOTHER AND HER HUSBAND
15. E has not been joined as a party. However, I do not regard this procedural non-compliance to be fatal because E has been served with the OS. She has made clear to the representative of the Agency that she would relinquish all her parental rights in respect of the Twins and subsequently made a declaration in writing to that effect.
16. E’s husband was not aware of the surrogacy arrangement and therefore was not regarded as the father of the Twins under section 10 of PCO. His consent to the parental order was not required and thus he was not served or made a party.
E. THE APPLICATION AND THE ISSUES
17. Of the requirements in section 12(2) to (7) of PCO, it is beyond dispute that the following requirements have been complied with:
(1) The Twins’ home is with both of the Applicants: section 12(3)(a) of PCO;
(2) The Applicants have been habitually resident in Hong Kong 1 year prior to the present Application and/or have a substantial connection with Hong Kong because they have worked and lived in Hong Kong for over 10 years. The Husband is a permanent resident of Hong Kong since 2016: section 12(3)(b) of PCO; and
(3) Both of the Applicants have attained the age of 18: section 12(4) of PCO; and
(4) Upon request of the Applicants, E has, by declaration, freely and unconditionally relinquished all parental rights in respect of the Twins. S.12(5) of PCO has been satisfied.
18. The Applicants have, however, in breach of s.12(2) of PCO, failed to apply within 6 months of the birth of the Twins. They also need the court’s approval or retrospective authorization of expenses incurred in connection with the surrogacy under s.12(7) of PCO.
19. The issues are whether the court should extend time for them to make this application and whether to approve or authorize the expenses.
F. EXTENSION OF TIME FOR APPLICATION
F1. Legal principles for grant of a parental order
20. The following principles in respect of an application for a parental order under s.12 PCO have been laid down in the Judgment.
21. S.12(1) PCO defines a parental order as “an order providing for a child to be regarded in law as the child of the parties to a marriage”, ie the commissioning parents. Such an order does not just govern the welfare of a child up to the age of 18 or when he finishes full-time education. It has far-reaching, life-long, implications for the child, his/her surrogate mother or the commissioning parents. It has “transformative effect” on the legal relationship between the child and the commissioning parents: A v P [2012] Fam 188, §24, Theis J. It confers legal identity and status on the child, and defines whose child he/she is and the family to which the child belongs. It is irreversible for the surrogate mother, the commissioning parents and the child. It has implications extending far beyond the merely legal. (§34 of the Judgment)
22. An adoption order or wardship order is no comparison to a parental order. What entails from a parental order are (i) the establishment of legal parenthood and responsibility of the commissioning parents; (ii) removal of the surrogate mother and her husband’s rights...
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