B. Legal parenthood of children of surrogacy arrangements
Under section 9(1) of the Parent and Children Ordinance (Cap. 429), the woman who 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. Under section 10 of the Ordinance, a women who was a party to a marriage but carried a child in a situation of placing of embryo, sperms and eggs or artificial insemination, but the creation of the embryo was not brought about by the other party to the marriage, 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). Lastly if the woman and her male partner obtained treatment services for placing of embryo, sperms and eggs or artificial insemination and resulted in the pregnancy not by the sperm of that men, he shall still be regarded as the father of the child.
Thus the “default” position is that the surrogate mother is the legal mother of the child under Hong Kong law. If the surrogate mother has a husband or male partner whose sperm is not used, then the husband (if he consented to the pregnancy) or male partner (receiving such treatment service) is deemed the legal father.
At present, there is simply no recognized scheme or legal procedure for seeking prior approval of surrogacy unless the surrogacy is conducted without any profit, bonus or reward given. The court may order commissioning parents to be legal parents of a child born out of a surrogacy agreement under section 12 of the Parent and Children Ordinance (Cap. 429). The couple who commissioned for the child must apply for a parental order shifting the parental status, all the legal rights and responsibilities to the couple within 6 months of the birth. The court has to consider the best interest of the children before granting of the parental order. The court highlighted the consequences of not making a parental order which may left the child without a legal parent, and the parental order is important as it confers permanent legal parenthood and parental responsibility on the commissioning parents, providing lifelong security for the child’s relationship with the parent.