FCMP 60 / 2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 60 of 2014
IN THE MATTER of an application under Section 12 of the Parent and Child Ordinance (Cap 429)
|Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)
|Dates of Hearing: 30 September 2014
|Date of Handing Down Judgment: 7 October 2014
1. Before this court is an ex parte application on the part of a married couple for a parental order pursuant to section 12 of the Parent and Child Ordinance, Cap 429 (“the Ordinance”).
2. The two applicants are married couple. Both are local Chinese. The husband is now XX years old and the wife aged XX. They started co-habitation in 2006 and got married in Hong Kong on XXX, 2014. Unfortunately, for some medical reasons, they were not able to have their child naturally. After having various treatments but in vain, they arranged a surrogate in California of the United States to give birth to a child D for them by using the husband’s sperm and the wife’s egg. For this purpose, a commercial Surrogacy Agreement was entered on 18 August, 2012 between them and the surrogate couple (“the Surrogacy Agreement”). The relevant medical procedure was performed in California and as a consequence, D was born on XXXXXXX, 2013. Before her birth, the necessary legal procedure was put in place by having a Pre-Birth Order (“the Pre-Birth Order”) obtained from the Superior Court of the State of California. Under the Pre-Birth Order, the applicants were declared to be the legal parents of D. After her birth, D was issued a birth certificate with the applicants registered as her father and mother. The applicants have since brought D back to Hong Kong for good. In order to apply for residency for D, they have to regularize their legal relationship with the daughter, hence the present application.
3. By their Ex parte Originating Summons, which was amended on the callover hearing of 30 September, 2014, they ask for:-
|| An order under section 12 of the Ordinance be granted to them providing for D to be regarded in law as their child;
|| A declaration be granted to approve that the payments made by the applicants pursuant to and in connection with the Surrogacy Agreement are “expenses reasonably incurred” or otherwise expenses “authorized or subsequently approved by the court” as referred to in section 12(7) of the Ordinance;
|| Alternative to paragraph 1 above, a declaration be granted to approve that D is the lawful child of the applicants by virtue of section 17 of the Adoption Ordinance, Cap 290.
4. This case has the following unusual features.
5. First, as Mr Chan, senior counsel for the applicants, has pointed out, this case is the first of its kind in Hong Kong.
6. Secondly, at the time of birth of D on XXXX, 2013, the applicants were not married yet. They only married subsequently on XXXXX, 2014. Thus, it is questionable whether they are “parties to a marriage” so as to qualify them to make an application under the said section 12.
7. Thirdly, the Surrogacy Agreement in question is a commercial agreement. Hence, prima facie, it is in contravention of section 17 of the Human Reproductive Technology Ordinance, Cap 561 which prohibits against surrogacy arrangement on commercial basis. There is an issue as to whether the applicants have committed the relevant offences: see section 39(1) of the Human Reproductive Technology Ordinance, Cap 561. Mr Chan informed the court that similar cases had come before the English High Court. Such cases should be of much assistance to the courts of Hong Kong in dealing with similar issues.
8. An Assessment Report has been obtained from the Director of Social Welfare since the 1st callover hearing pursuant to Order 90, rule 6 of the Rules of the District Court, Cap 336H. In the interim, I considered that it might be necessary to have the application transferred to the Court of the First Instance and I invited the applicants to lodge their submissions in this respect.
9. Despite the neutral stance taken by the applicants on the issue of transfer, in accordance with the best tradition of the Bar, Mr Chan has helpfully rendered his assistance to the court by referring to the relevant legal principles and the arguments on both sides in relation to transfer. I am grateful for his assistance.
The Legal Principles
10. The starting point is that the Family Court has both the power to hear the application and the power to transfer the matter to the High Court.
11. Section 12(1) of the Ordinance stipulates that the court may make an order providing for a child to be regarded in law as the child of the parties to a marriage, and "the court" is defined in section 2 to mean "the High Court or the District Court".
12. At the same time, section 16 of the Ordinance expressly provides that where an application under...