Commercial Surrogacy in Hong Kong: A Legal and Ethical Analysis
Author: Lee Pei Jian Leo
The ability to bear children has emerged as an inalienable and non-negotiable aspect of human dignity. The universality of such has been enshrined by the right to family life in reference to an individual’s civil liberty to create and maintain familial relations (1,2). With the advent of assisted reproductive technologies (ARTs), gestational surrogacy has been increasingly observed as a cure for infertility to realise such rights. However, the legality of surrogacy remains dubious, analogous to the ethical debate of the practice.
The issue of gestational surrogacy has re-emerged in light of the recent case HC formerly known as HWH v. WYH [2023] HKFC 146 where the Family Court held that the surrogate mothers had sole legal recognition despite the supposed relinquishment of parental rights recognised by the California Court. Consequently, the Court were unable to grant a statutory parental order or commence adoption procedures in favour of the commissioning couple, rendering the child in a state of ‘legal limbo’ (3).
The reasoning of such follows the stringent provisions of the Parent and Child Ordinance, Cap. 429 (“PCO”), specifically s.12(1) which outlines the criteria for granting parental orders to a “child to be regarded in law as the child of the parties to a marriage” in the condition that 1) the child has been carried by a surrogate mother; 2) the gametes of the husband or wife were used to create the embryo; 3) the parents apply for the order within 6 months of childbirth; and 4) no money or other benefit other than expenses “reasonably incurred”.
The onus of the factual exercise thus rests on the commercial nature of the surrogacy agreement. As noted in subsection s.12(7), any benefit other than expenses “reasonably incurred” received by the parents pertaining to the surrogacy agreement with “a view to the making of the [parental] order” renders the claim futile. This is reinforced by the illegality of commercial surrogacy agreements in Section 17 of the Human Reproduction Technology Ordinance, Cap. 561 (“HRTO”), where individuals are prohibited to “make or receive any payment” to “initiate, offer, agree, take part or compile any information” in relation to the “making or negotiation” of surrogacy arrangements regardless of jurisdiction. Section 39 further delineates that any act in contravention of Section 17 will constitute a criminal offence. The only exemption is the reimbursement of bona fide medical expenses that arise from the pregnancy; by implication, reimbursement for lost income is impermissible (4). Therefore, it is evident that lawful surrogacy in Hong Kong is limited to altruistic surrogacy.
The existing domestic framework is untenable given the conflict of such principles in foreign jurisdictions. Particularly, the extra-territorial criminalisation of commercial surrogacy in Hong Kong creates significant consequences on the practical entitlements of the child. Analogous to the couple in the HWH case, people unable to conceive are seeking commercial surrogacy arrangements in lenient jurisdictions abroad (5–7). This is expounded by recent developments in Sham Tsz Kit v. Secretary for Justice [2023] HKCFA 31 and NF v R [2023] HKCFI 2233 where foreign homosexual marriages are afforded fundamental civil liberties. Children thus born of this practice are effectively de facto stateless given that they are not deemed to be children of the commissioning parents. The child would resultingly not be entitled to share the right of abode, forced to re-enter Hong Kong via a tourist visa, and not be registered for public health and education services (3). The consequences of this framework arguably contravene multiple domestic and international human rights conventions respective to UNCRC, ICCPR, ICESPR and BORO.
The legislature thus ought to recognise the reality of parenthood via commercial surrogacy and solutions arising from private international law (3). As noted in the HWH case, the state of California has provided express conferral of parental status prior to birth and is registered on the birth certificate (8). This recognition is nonetheless disregarded. The continued rigidity of Hong Kong legislation extending beyond its jurisdiction thus inhibits Hong Kong people from seeking remedies for their inability to conceive other than altruistic surrogacy.
Moreover, the ethical justifications put forth for the prohibition of commercial surrogacy are not sustainable. Proponents have suggested that surrogates are susceptible to exploitation, particularly in reference to the coercive effect of the payment (9). It is important to note that when surrogates choose to undertake a particular benefit, as is often the case with employment, it is logically incomprehensible to withhold compensation. Currently, reimbursement for lost income during surrogacy is impermissible; the exploitation in actuality favours commercial surrogacy since it enables a complete and considerate requital. Furthermore, proponents assert that commercial surgery is analogous to the human trafficking of children, risking the commodification of reproductive labour. It is worth acknowledging the significance of biological connection which grants intending parents a claim to custody (10). The conferral of parental status prior to birth in the practice of California establishes a legitimate responsibility for the child’s well-being and best interest. Moreover, such ethical concerns can be overcome by regulation. This is notably significant for commercial surrogacy to be viewed as a payment for the “time, effort, pain, and risk of pregnancy” (11) rather than the child itself. This is particularly ensured by enacting legislation that protects the rights of the surrogate, such as the right to be paid irrespective of the success of childbirth. Remuneration and altruistic motivation need not be mutually exclusive (12), it is at least worth it for legislators to recognise the benefits of commercialisation in the context of the declining birth rate.
At a minimum, the existing legislature ought to enable recognition of commercial surrogacy in foreign jurisdictions. Criminalising commercial surrogacy is ineffectual and counterintuitive due to its increasing practice. It is therefore untenable to suggest that altruistic surrogacy is the only option for infertile parents. Hong Kong’s “public policy exceptions” will not withstand the increasing international demand for surrogacy. With the rapid advancement of technology, prohibiting access to surrogacy can no longer be a sustainable position.
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5. Jain J. US seen as safe territory for surrogacy seekers. Hong Kong.
7. South China Morning Post [Internet]. 2011 [cited 2023 Oct 31]. More liberal access to surrogacy warranted. Available from: https://www.scmp.com/article/737246/more-liberal-access-surrogacy-warranted
8. Byrn MP, Synder SH. The Use of Prebirth Parentage Orders in Surrogacy Proceedings.
10. Radin MJ. Market-Inalienability. Harv Law Rev. 1987;100(8):1849–937.