II. Surrogacy

II. Surrogacy

An important aspect of the Human Reproductive Technology Ordinance is the regulation of surrogacy arrangements.

A “surrogate mother” means a woman who carries a child–

1. pursuant to an arrangement–
   1. made before she began to carry the child; and
   2. made with a view to any child carried pursuant to the arrangement being handed over to, and the parental rights being exercised (as far as practicable) by, another person or persons; and
2. conceived by a reproductive technology procedure.

A person must not, for the purposes of a surrogacy arrangement, use gametes other than the gametes of two persons who are–

1. the parties to a marriage; and
2. the persons to whom the surrogate mother, pursuant to the arrangement, hands over any child carried and persons who will exercise parental rights over the child

( Sections 14 of the Human Reproductive Technology Ordinance )

The suitability of a woman to be a surrogate mother should be assessed by a registered medical practitioner who is not responsible for the reproductive technology procedures regarding the surrogacy, by taking into account the woman’s marital status, history of pregnancy, and physical and mental fitness to carry a baby.

Counselling must be provided by a multi-disciplinary team of the reproductive technology centre for the commissioning couple, and surrogate mother and her husband (if any) to ensure that all parties concerned understand the medical, social, legal, moral and ethical implications of surrogacy. In assessing the surrogate mother (and her husband, if any) and the commissioning couple, the welfare of the child is of paramount importance.

The assessment should take into account their physical, mental and social well-being, including the following factors:

1. their commitment to having and bringing up a child or children;
2. their ability to provide a stable and supportive environment for any child born as a result of surrogacy;
3. their medical histories and the medical histories of their families;
4. their ages and likely future ability to look after or provide for a child’s needs;
5. their ability to meet the needs of any child or children who may be born as a result of surrogacy, including the implications of any possible multiple births or disability;
6. any risk of harm to the child or children who may be born, including the risk of  inherited disorders, problems during pregnancy, and of neglect or abuse; and
7. the possible attitudes of other members of the family towards the child.

A surrogate mother is not a “parent” of the child in law.

Section 12 of the Parent and Child Ordinance , Cap. 429 , Laws of Hong Kong, provides that:–

unless authorized or subsequently approved by the court.

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–
   1. 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;
   2. the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo; and
   3. the conditions in subsections (2) to (7) are satisfied.
2. The husband and the wife must apply for the order within six months of the birth of the child or, in the case of a child born before the commencement of this section, within six months of such commencement.
3. At the time of the application and of the making of the order–
   1. the child’s home must be with the husband and the wife or either of them; and
   2. the husband or wife, or both of them, must-
      1. be domiciled in Hong Kong;
      2. have been habitually resident in Hong Kong throughout the immediately preceding period of one year; or
      3. have a substantial connection with Hong Kong.
4. At the time of the making of the order both the husband and the wife must be at least 18 years old.
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 six weeks after the child’s birth.
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-
   1. the making of the order;
   2. any agreement required by subsection (5);
   3. the handing over of the child to the husband and the wife; or
   4. the making of any arrangements with a view to the making of the order,
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.
9. Where an order is made under subsection (1), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner as may be prescribed, of the making of that order.

For more details about surrogacy, please refer to Part XII of the Revised Code of Practice issued by the Council on Human Reproductive Technology.