Legal Updates

Facts
FH and MH (“the Applicants”) were a married couple. They were Hong Kong permanent residents. In 2015, they entered into a gestational carrier agreement (“the GC Agreement”) with WB and her husband HB. Pursuant to the GC Agreement, WB was to be the surrogate mother, and two embryos were placed inside WB’s uterus. The gametes of the Applicants were used to bring about the creation of the embryos. In 2016, WB gave birth to two twin babies (“the Twins”) in California. The California Court declared that the Applicants were the legal parents of the Twins under California law and the Applicants mistakenly assumed that the position was the same pursuant to Hong Kong law. In 2018, the Applicants applied for an order declaring them the legal parents of the Twins, that is, a parental order in favour of gamete donors, under section 12 of the Parent and Child Ordinance (Cap 429) (“PCO”). WB and HB, the surrogate mother and her husband, unconditionally consented to the application. Judgement was given by Hon Au-Yeung J at the Court of First Instance.

Judgement
Hon Au-Yeung J considered the 4 issues below before she granted the parental order sought.

Issue 1: whether or not the child’s welfare should be treated as the first and paramount consideration in considering a parental order application under s.12 PCO (“the welfare issue”)?

1. The word “welfare” should be interpreted in its widest sense. The welfare of the child shall not be measured merely by money or by physical comfort. Moral and religious welfare of the child, his physical well-being and the ties of affection cannot be disregarded. “Welfare” and “best interests” are synonymous.
2. Taking into account s.3(1) of the Guardianship of Minors Ordinance (Cap 13), Article 3 of the Convention on the Rights of the Child and the UK approach to its equivalent of s.12 PCO, Hon Au-Yeung J held that the welfare principle does apply to the interpretation of s.12 PCO. The child’s welfare ought to be treated as the first and paramount consideration in considering a parental order application under s.12 PCO.

Issue 2: Whether or not the court has jurisdiction to extend the 6-month time limit imposed by s.12(2) PCO (“the time extension issue”)?

1. S.12(2) PCO provides that the application for the parental order must be made by the husband and the wife within 6 months of the birth of the child. The application was 21 months out of time.
2. Taking into account the child’s welfare as the first and paramount consideration, the principles of statutory interpretation and authorities in the UK, Hon Au-Yeung J held that the court does have power to extend the 6-month time limit, which will not bar a parental order application except in the clearest case of abuse of public policy.
3. If the matters above are insufficient,  the court has power to read down the 6-month time limit given the lack of justification for the restriction imposed by such limit on fundamental rights, including the rights to protection of family and privacy, rights in respect of family, rights as children to protection against discrimination, and rights of access to court.

1. S.12(7) PCO provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either applicant for or in consideration of the matters specified in that subsection unless authorized or subsequently approved by the court.
2. Some of the payments made by the Applicants pursuant to the GC Agreement were benefits given by either of them for or in consideration of the matters specified in s.12(7) PCO but were not for expenses reasonably incurred (“the non-reasonable expenses”).
3. Taking into account the following, Hon Au-Yeung J held that the non-reasonable expenses ought not to stand in the way of a parental order in the present case:
   a. The non-reasonable expenses in the sum of about US$62,500 were quite disproportionate, but the Applicants acted in good faith and without “moral taint” or any attempt to defraud the authorities.
   b. There was no abuse of public policy by the Applicants, and there were no authorities in Hong Kong to guide them as to the court’s view.
4. Hon Au-Yeung J had to consider if the Applicants were in breach of the Human Reproductive Technology Ordinance (Cap 561) (“HRTO”) in respect of the non-reasonable expenses before she could exercise the court’s discretion to authorize such expenses.
5. The Applicants might be in breach of ss. 17 and/or 39 HRTO. Please refer to the paragraph on issue 4 below for details. As set out in the paragraph on issue 4 below, Hon Au-Yeung J refused to read down HRTO. However, she noted that any penal sanctions that might be imposed by HRTO were not targeted at the child anyway and that the Applicants did not abuse any public policy. In light of the paramount importance of the welfare of the Twins, she exercised the court’s discretion to retrospectively approve the non-reasonable expenses under s. 12(7) PCO.

Issue 4: Whether or not ss. 17 and/or 39 HRTO should be interpreted in a way consistent with the constitutional rights of the Applicants by way of “reading down” (“the HRTO issue”)?

1. S.17(1) HRTO provides, among other things, that “[n]o person shall (a) whether in Hong Kong or elsewhere, make or receive any payment for … initiating or taking part in any negotiations with a view to the making of a surrogacy arrangement …”.
2. Hon Au-Yeung J held that the 6-month period for prosecuting the Applicants pursuant to s.39 HRTO for contravening s.17(1) HRTO had expired.
3. Nevertheless, in determining whether the court would exercise its discretion to authorize the non-reasonable expenses, Hon Au-Yeung J considered whether or not ss. 17 and/or 39 HRTO ought to be interpreted in a way consistent with the Applicants’ constitutional rights by way of “reading down”.
4. After consideration, Hon Au-Yeung J refused to read down HRTO. She held that any question on reading down HRTO should be left to a more appropriate case in the future.

Whether a parental order should be granted

Hon Au-Yeung J declared the Applicants the legal parents of the Twins. She held that the grant of a parental order would be in the best interests of the Twins, taking into account the following:

1. The Applicants had no intention to delay in applying for a parental order or to conceal the identity of the Twins.
2. The requirements set out in s.12 PCO were satisfied. In particular:
   a. Hon Au-Yeung J extended the 6-month time limit for the Applicants to apply for a parental order. S.12(2) PCO was satisfied.
   b. The court authorized the non-reasonable expenses. S.12(7) PCO was satisfied.
3. The grant of a parental order would meet the lifelong welfare of the Twins and best meet their psychological, physical and social needs, without causing prejudice to anyone.
4. There was no abuse of public policy or countervailing factors.