With advances in medical technology, the process of in vitro fertilization allows a child to be born to a surrogate mother using the eggs and sperm of the intended parents (“Start-up torque“). Some couples who are infertile, over the childbearing age, or physically incapable of childbearing may view surrogacy as their last hope of having genetically connected children.
However, obstacles remain for couples in Hong Kong who intend to organize surrogacy. To name a few, commercial surrogacy is prohibited under section 17 of the Human Reproductive Technology Ordinance (Cap. 561) (the “HRTO“), even if it takes place outside of Hong Kong in a jurisdiction where commercial surrogacy is legal. Surrogacy agreements are also unenforceable under section 18 of the HRTO. This means that the courts of Hong Kong will not intervene to compel either party to carry out the agreement.
More importantly, the mere fact that the embryo is formed with the sperm and egg of the sponsoring couple does not entitle them to legal parenthood. Under section 9 of the Parents and Children Ordinance (the âBCPâ), The woman who bore the child (that is to say the surrogate mother in the context of surrogacy) is by default considered in law as the mother of the child. In addition, under article 10 of the BCP, his spouse is deemed to be the father of the child if he has consented to the pregnancy.
Parental status is important in many ways, especially when the child is born outside of Hong Kong. For example, this affects the child’s right to stay, eligibility for education and social assistance, as well as administrative issues such as who can sign consent forms for the child while he is still. minor. The uncertainty associated with acquiring parental status can be a major deterrent for the intention of commissioning couples.
Under section 12 of the BCP, the court has the power to grant a parenting order to the sponsoring couple in the context of surrogacy. However, an important requirement under Article 12 (7) is that the court must be satisfied that no sum of money or other benefit, except for expenses reasonably incurred, has been given or received by the sponsoring couple, unless authorized or subsequently approved by the court.
In light of this background, future sponsoring couples may want to ensure in advance that the court will allow their expenses to be incurred under surrogacy arrangements, in order to avoid unexpected hardships when making arrangements. the application for a parental order at the birth of the child. The question is whether and under what circumstances the Court will give such prior authorization. This was examined by the Court of First Instance in the recent case LH vs. LW  HKCFI 1998.
LH vs. LW
The applicants, a married couple and permanent residents of Hong Kong, intended to enter into a surrogacy agreement with an agency (the “”Agencyâ) In Minnesota, United States. They requested a declaration that all payments agreed to be made to the Agency are reasonably incurred, or that the Court should authorize these expenses in advance.
The questions submitted to the Court were as follows:
1. whether the Court has the power to pre-authorize expenditure under the surrogacy arrangement contemplated by the applicant; and
2. If so, what tests should be applied.
Does the Court have the power to give prior authorization
In light of the final wording of subsection 12 (7) and its legislative history, the judge concluded that the Court has the power to pre-authorize expenditures under subsection 12 (7) of PCO.
The judge established the criteria for prior authorization under subsection 12 (7) of PCO as follows:
1. whether the proposed surrogacy agreement is legal under Hong Kong law;
2. whether the proposed surrogacy agreement is legal under the law of the jurisdiction where the proposed surrogacy agreement will be made and where the baby is expected to be delivered;
3. whether the child is conceived or born;
4. in the case of commercial surrogacy, whether there is a criminal prosecution under the HRTO;
5.whether the projected expenses are reasonable; and
6.If the projected expenses (or any part thereof) are not reasonably incurred, should the Court exercise its discretion to authorize them.
The judge concluded that the surrogacy arrangement proposed by the applicants, which involves agency fees and marketing expenses, is commercial surrogacy in violation of section 17 of the HRTO. As it is illegal under Hong Kong law, the court will not allow the planned expenses, regardless of their reasonableness. Therefore, the request was rejected.
Still, the judge added that if the surrogacy agreement had been legal, she might have cleared most of the proposed spending.
Comparison with existing case authorities
In LH vs. LW, the Court took a different approach from previous judgments in which the child was already born to a surrogate mother and the sponsoring parents then applied for a parenting order and sought retrospective approval of their incurred expenses (see FH vs. WB  5 HKC 99,  HKCFI 1748; Regarding A and B  5 HKLRD 366,  HKCFI 1749).
In the latter cases, the court was most concerned with the welfare of the child, since the decision whether or not to grant a parenting order has a significant impact on the child’s life. Therefore, for the subsequent approval of expenditure, the Court considers only a two-step test, namely (1) whether the expenditure was reasonably incurred and (2) if not, whether the Court should exercise its discretion to authorize or approve them.
Yet, in the context of prior authorization, the Court does not have to consider the welfare of an imaginary child who is neither born nor conceived. It therefore places more emphasis on the policy of legislation against commercial surrogacy and is concerned not to create a defense against the criminal offense under Article 17 of the HRTO.
Take away food
The key to remember LH vs. LW is that if a couple is pursuing a commercial surrogacy, it is not possible to get any guarantee in advance that the parenting order will be granted, because the court will not pre-authorize the expenses contemplated in the context of a illegal arrangement. At the same time, the court kept the door open on the early authorization of proposed spending for altruistic surrogacy. Considering the importance of acquiring parental status as well as the potential criminal liability, prospective sponsoring couples are advised to carefully assess the risks involved.