With the advancement of assisted reproductive technology, many infertile couples have chosen surrogacy to have children. In Hong Kong, the surrogate mother is considered the legal mother of the child under section 9 of the Parent and Child Ordinance unless the commissioning couple obtains a parental order or an adoption order from the court. When the commissioning couple divorces, can the court make custody and maintenance orders for a child born by a surrogate mother under section 19(1) of the Matrimonial Proceedings and Property Ordinance (“MPPO”), in the absence of a parental order or adoption order?
The High Court addressed this issue in the case of HC v WYH [2024] HKCFI 1157. In this case, the couple have three children in their marriage, two of whom were born to different surrogate mothers through surrogacy agreements signed with a US agency. Afterward, the couple agreed to divorce and reached an agreement on the custody and maintenance arrangements for all three children. However, the Family Court declined to make any orders concerning the two children born under the surrogacy arrangements, as the couple had not obtained a parental order or adoption order, and the court could not determine whether these two children qualified as “children of the family” under section 2 of the MPPO. Consequently, the court referred this issue to the High Court for resolution.
Having regard to UK authorities and the legislative intent of the MPPO, the High Court judge held that the definition of “child of the family” is broad: for a child to be treated as a “child of the family”, there is no requirement for any biological relationship with one or both spouses [at paras 27 and 42]. Therefore, as long as the commissioning parents treat the children born by surrogate mothers as their family children, the court has jurisdiction to make relevant orders under section 19(1) of the MPPO [at paras 45 and 46].
November 2024
Dr. Anthony Lai, Mr. David Lam and Mr. Howard Luk
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