A A
B B
FCMC 2719 / 2022
[2023] HKFC 146
C C
D
IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E MATRIMONIAL CAUSES E
NUMBER 2719 OF 2022
F F
----------------------------
G G
BETWEEN
H
HC formerly known as HWH Petitioner H
I And I
J J
WYH Respondent
K K
----------------------------
L L
Coram : Her Honour Judge Grace Chan in Chambers (paper disposal)
M M
Date of Decision : 28 July 2023
N N
-----------------------
O O
DECISION
P ( Surrogate children; Transfer to the Court of First Instance ) P
-----------------------
Q Q
R 1. This would have been a run of the mill case in the Family Court, R
had it not been the fact that two of the children involved in this case (now
S S
about 4 years old) were born by surrogate mothers pursuant to two
T commercial surrogacy agreements made respectively on 20 October 2017 and T
19 December 2017 between the parties and the relevant surrogate mother.
U U
V V
- 2 -
A A
B B
C
2. The major concern is whether the Family Court can grant custody C
of the said two surrogate children to the wife of this case, despite the fact that:
D D
(a) a parental order or an adoption order has not been put in place to
E E
legalise the parent-child relationship; and/or
F F
G
(b) the court has not sanctioned the expenses of the surrogacy G
agreements which are prohibited and unenforceable under local
H H
law in Hong Kong.
I I
Background
J J
K 3. The parties were married in 2012, but separated since in or about K
March 2019. The petitioner (“wife”) filed her petition for divorce in April
L L
2022, to which the respondent (“husband”) did not object. Decree nisi was
M granted on 27 September 2022. M
N N
4. The parties have a son born within their wedlock in 2015.
O O
5. In 2017, they decided to enter into 2 surrogacy agreements via
P P
an agency in California, the USA. Accordingly, the following children were
Q born in 2018: Q
R (a) a daughter (whom I shall call “X”) was born in September 2018 R
S
by a surrogate mother, Ms A; S
T T
U U
V V
- 3 -
A A
B B
(b) a son (whom I shall call “Y”) was born in November 2018 by a
C
surrogate mother, Ms B. C
D D
6. X and Y were born as a result of an embryo transfer procedure
E in which that the embryo(s) formed by the egg(s) of the wife and the sperm(s) E
of the husband was/were transferred to the uterus of Ms A and Ms B
F F
respectively.
G G
7. Further, prior to the birth of X and Y, the parties have obtained a
H H
Pre-birth Order from the California Court, declaring that they are the legal
I parents of the relevant unborn child, and that each of the surrogate mothers is I
not the legal parent of the relevant unborn child (“Pre-Birth Orders”).1 The
J J
parties are thus named as the “parents” of X and Y in their birth certificates
K issued by the State of California. K
L L
8. Upon the breakdown of their marriage, the parties filed a consent
M summons on 11 May 2022 to settle the custody and ancillary relief matters M
(“Consent Summons”). Among other things, the Consent Summons
N N
provides that the custody, care and control of X and Y be granted to the wife,
O and the husband shall enjoy reasonable access to them. O
P P
9. On its own motion, this court alerted the parties, in respect of X
Q and Y, of section 12 of the Parent and Child Ordinance, Cap 429 (“PCO”), Q
section 17 of the Human Reproductive Technology Ordinance, Cap 561
R R
(“HRTO”), and some of the authorities on surrogacy.2 This court raised the
S S
1
a Judgment of Parental Rights was filed on 20/7/2018 (in respect of X) and 28/9/2018 (in respect of Y)
T by the parties with the California Court. T
2
HCMP 1857/2016 [2017] HKLRD 129; HCMP 1571/2018 [2019] HKCFI 1749, [2019] 5 HKLRD 366;
HCMP 607/2021 [2022] HKCFI 556, [2022] 2 HKLRD 191; HCMP 797/2021 [2022] HKLRD 685.
U U
V V
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A A
B B
requisitions as to whether an application would be made in accordance with
C
the applicable law and if so, whether such an application would do so in the C
Family Court or the Court of First Instance (“Surrogacy Issue”).
D D
10. Further, on 14 April 2023, this court invited written submission
E E
as to whether this case should be transferred to the Court of First Instance for
F disposal (“Transfer Issue”). F
G G
11. In the result, the wife lodged her written submission, including:
H H
(a) Speaking note dated 9 January 2023 prepared by Messrs. B C
I I
Chow & Co (on the Surrogacy Issue);
J J
(b) Written submission prepared by Mr Philip Dykes SC dated 2
K K
March 2023 (which touches on the Surrogacy Issue);
L L
(c) Written submission prepared by Mr Philip Dykes SC dated 5
M M
May 2023 (on the Transfer Issue).
N N
12. The husband has not filed any written submission. In fact, after
O O
signing the Consent Summons, he has not engaged any further in this case.
P He has failed to appear in any of the hearings held in the Family Court. P
Q Q
13. So far, the parties have not applied for nor obtained a parental
R order, nor have they commenced any adoption procedures, in respect of X and R
Y.
S S
T T
U U
V V
- 5 -
A A
B B
The wife’s stance/argument
C C
14. The wife invites the court to approve the Consent Summons
D D
soonest possible, such that a declaration pursuant to section 18 of the
E Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) can E
be made, after which she may proceed to applying for decree absolute without
F F
delay.
G G
15. Simply put, Mr Dykes SC submits that the lack of a parental
H H
order or an adoption order in this case is not an obstacle to the Family Court
I to make an appropriate order in the best interest of X and Y under the MPPO. I
What the wife now seeks is simply an order based on the children’s “status”
J J
as the “children of the family” within the meaning of section 2 of the MPPO.
K On the Transfer Issue, Mr Dykes SC does not expressly object that the case K
should be transferred to the Court of First Instance. But my overall reading of
L L
his written submission is that the case needs not be transferred, since there is
M no novelty or complexity in law, and/or that it is pre-mature to transfer without M
making any findings by the Family Court into the surrogacy arrangements
N N
(See: T and anr v N and ors [2022] 3 HKC 459).
O O
Legal principles on the Transfer
P P
Q 16. In FHM v KYM & others [2015] HKFC 24, a case also cited by Q
Mr Dykes SC, I have summarised the applicable legal principles concerning
R R
transfer of cases from the Family Court to the Court of First Instance at §§ 45-
S 46 therein which are repeated below: S
T T
U U
V V
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A A
B “45. Section 32 (1) of the Matrimonial Causes Rules provides that the B
District Court may,
C C
"order that a cause or application pending in the District Court
be transferred to the Court of First Instance, where having
D regard to all the circumstances including the difficulty or D
importance of the cause or application or of any issue arising
therein, the court thinks it desirable that the cause or application
E E
should be heard and determined in the Court of First Instance”
F 46. Reference should be made to PD 15.14 which relates to the transfers F
of proceedings from the Family Court to the Court of First Instance
and useful cases such as Jack v Jack and Anor, DCCJ 3782/1995; B v
G G
B, FCMC 3105/1999, date of judgment: 11 July 2000; H v H,
FCMC 7173/2000, date of judgment: 1 February 2002.
H H
I 17. At §47 of that judgment, I listed the relevant considerations as I
follows:
J J
K (a) Whether there is a matter of public interest; K
L L
(b) Where there are novel or difficult points of law to be
M resolved; M
N N
(c) Where delay will work a clear injustice;
O O
(d) Where there is unduly complicated or conflicting evidence
P P
the resolution of which is likely to be so protracted that it
Q will unduly prejudice the Family Court lists and this work Q
against the interests of other litigants;
R R
S (e) Whether the financial limits for the time being relating to S
the jurisdiction of the District Court in other matters (but
T T
this factor alone is not decisive);
U U
V V
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A A
B B
C
(f) In general, whether there is special complexity. C
D D
Public interest
E E
18. From my experience sitting in the Family Court, the number of
F F
cases involving surrogate children are on the rise, probably due to the rapid
G development in human reproduction technology and its related market. A G
portion of these surrogacy cases take the form of an adoption application, but
H H
many more are only revealed to the Family Court, upon enquiry of the
I judge(s), during the first appointment hearings or children appointment I
hearings.
J J
K 19. Surrogacy arrangement brings into play the questions of the legal K
position of a surrogate child, and his legal relationship to the commissioning
L L
parents as well as to the surrogate mother. And it must be right that there is
M public interest in the issues or concern set out at [2] of this decision. Mr Dykes M
SC makes similar remarks in his written submission on the Transfer Issue.3
N N
O Novelty & complexity O
P P
20. To begin with, I would point out that as far as I know, most if not
Q all of the cases involving surrogate child(ren), unless they merely involve an Q
application for an adoption order, have been transferred to the Court of First
R R
Instance for disposal, due to the complexity and/or the fact that the Court of
S First Instance enjoys inherent jurisdiction that the Family Court does not have. S
T T
3
§8 of written submission dated 5/5/2023.
U U
V V
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A A
B B
For example: Re Section 12 of the Parent and Child Ordinance (Cap 429)
C
[2015] 1 HKLRD 229. C
D D
21. Next, I wish to refer to 3 local ordinances that are relevant to
E surrogate arrangements. E
F F
22. The first relevant ordinance is the HRTO. Under section 17 of
G HRTO, surrogacy agreements on commercial basis is prohibited. Further, G
section 39 makes violation of section 17 a criminal offence which is
H H
punishable with a fine and an imprisonment of 6 months on first conviction.
I Section 18 provides that no surrogacy agreement is enforceable in Hong Kong I
by or against any of the persons making it.
J J
K 23. Then, there is Part V of the PCO. Sections 9 and 10 define the K
meaning of “mother” and “father” respectively where birth or pregnancy
L L
results from medical treatment. Broadly, the surrogate mother is regarded as
M the mother of the surrogate child, no matter whether she was in Hong Kong M
or elsewhere at the time of placing in her of the embryo or sperms and eggs.
N N
And if at the time when the embryo was placed in her, she was a party to a
O marriage, then her husband shall be regarded as the father of the child; and if O
she was not married at that time, then her male partner (whom together with
P P
her obtained treatment services in the course of which the embryo or sperms
Q or eggs were placed in her) is regarded as the father of the surrogate child. Q
R R
24. There is a presumption under section 5 of the PCO, which
S provides that: S
T “5. Presumptions T
(1) A man shall be presumed to be the father of a child—
U U
V V
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A A
B (a) if he was married to the mother of the child at any time and if B
there arises by virtue of that marriage a presumption of law
C that the child is the legitimate child of that man; or C
(b) where no man is presumed to be the father under
paragraph (a), and subject to section 10(3), if he has been
D D
registered as the father of the child by an entry made after
the commencement of this section in any register of births
E kept by the Registrar of Births and Deaths under any E
Ordinance.
(2) Any presumption under subsection (1) may be rebutted by
F F
proof on a balance of probabilities.
…” (emphasis added)
G G
H 25. Section 12 of the PCO provides the legal framework for H
application of a parental order, ie an order providing for a child “to be
I I
regarded in law” as the child of the parties to a marriage if :
J J
(a) the child has been carried by a woman, ie the surrogate
K K
mother, as the result of the placing in her of an embryo or
L sperm and eggs or her artificial insemination; L
M M
(b) the gametes of either parties to the marriage, or both, were
N used to bring about the creation of the embryo; and N
O O
(c) the conditions in section 12 (2) to (7) are satisfied.
P P
26. Of note is section 12(7) in relation to expenses of commercial
Q Q
surrogacy agreements:
R R
“(7) The court must be satisfied that no money or other benefit (other
than for expenses reasonably incurred) has been given or received by
S the husband or the wife for or in consideration of— S
(a) the making of the order;
T (b) any agreement required by subsection (5); T
U U
V V
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A A
B (c) the handing over of the child to the husband and the B
wife; or
C (d) the making of any arrangements with a view to the C
making of the order,
unless authorized or subsequently approved by the court.” (emphasis
D added) D
E E
27. Finally, there is section 21 of the Guardianship of Minors
F Ordinance, Cap 13 (“GMO”), which provides that the natural father of a child F
who is illegitimate shall “not” be treated as the father of the minor unless:
G G
H (a) he is entitled to the custody of the minor by virtue of an H
order made under section 10 therein, or
I I
J (b) he enjoys any rights or authority with respect to the minor J
by virtue of an order in force under section 3(1) therein.
K K
L 28. The combined effect of the above ordinances on the facts of this L
case, according to my preliminary observation, would mean these:
M M
N (a) Despite the eggs of the wife were used, she is not regarded N
in law as the mother of X and Y. The surrogate mothers
O O
are regarded in law as the respective mother of X and Y.
P Their respective husbands (if they have one) are regarded P
in law the father of X and Y;
Q Q
R (b) The purported relinquishment of the parental rights by the R
surrogate mothers is not recognised in Hong Kong (See: S
S S
v J [2017] 5 HKLRD 129 per Queenie Au-Yeung J at §27).
T T
U U
V V
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A A
B B
(c) Although the respective surrogate mothers have warranted
C
in the surrogacy agreements that they are “legally C
unmarried”, it is unclear if each of them has a male partner
D D
that falls within the meaning of section 10 of the PCO.
E Notably, the surrogacy agreements record that both E
4
surrogate mothers have her own child(ren);
F F
G (d) Assuming that the respective surrogate mothers do not G
have a male partner that falls within the meaning of section
H H
10 of the PCO, can the husband of this case be “regarded
I in law” as the father of X and Y? In my view, the legal I
position is unclear. On one hand, the husband is presumed
J J
(but this is rebuttable) to be the father of X and Y, as he is
K named as the father in the birth certificates.5 But on the K
other hand, he can, at the most, be regarded as the father
L L
of the X and Y illegitimately-born by the respective
M surrogate mothers. Under the GMO, the custody of X and M
Y rest with the respective surrogate mothers. The husband
N N
does not enjoy any custodian rights unless an order
O pursuant to section 3(1) or section 10 of the GMO is made O
in his favour by the court;
P P
Q (e) There is no evidence suggesting that the husband has Q
obtained any court order in his favour pursuant to the
R R
GMO. When, to begin with, the custodian rights of X and
S Y do not rest with the husband, then arguably, he does not S
T T
4
See Recital B (2) of both surrogacy agreements.
5
Section 5 of the PCO.
U U
V V
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A A
B B
have the legal locus to agree to give the custody of X and
C
Y to the wife. It is trite that parties cannot by their consent C
confer jurisdiction to the court.
D D
29. Mr Dykes SC argues that when it comes to whether the Consent
E E
Summons should be endorsed, there is no need for the court to be concerned
F that a parental order or an adoption order is lacking. The court only needs to F
G
consider that X and Y are “the children of the family” within the meaning of G
the MPPO, and they were so “treated” by the parties during the marriage. The
H H
court thus has the power to make the appropriate order on the custody of X
I
and Y, pursuant to section 19 of the MPPO. I
J J
30. Mr Dykes SC seeks to rely on Re A (child of the family) [1998]
K 1 FLR 347. There, the husband and the wife were the grandparents of a minor K
girl. Upon their divorce, the trial judge ruled that this granddaughter was the
L L
child of the family within the meaning of section 52 of the Matrimonial
M Causes Act 1973, because they had “treated” the granddaughter as their child M
and cared for all her needs, and that her own natural mother was incapable of
N N
looking after her. The grandfather appealed but his appeal was dismissed by
O the English Court of Appeal. O
P P
31. Putting aside the fact that the wording of section 52 of the
Q Matrimonial Causes Act 1973 6 is slightly different from section 2 of the Q
R R
6
“child”, in relation to one or both of the parties to a marriage, includes an illegitimate child of that party
or, as the case may be, of both parties;
S “child of the family”, in relation to the parties to a marriage, means— S
(a) a child of both of those parties; and
(b) any other child, not being a child who is placed with those parties as foster parents by a local authority
T or voluntary organisation, who has been treated by both of those parties as a child of their family; T
U U
V V
- 13 -
A A
B B
MPPO, I do not think Re A can advance the wife’s case. In Re A, the court
C
found that the granddaughter was treated as the child of the family “for the C
purpose of financial provision by the husband” (ie grandfather) only. Neither
D D
the trial judge, nor the Court of Appeal made any ruling that custody of the
E granddaughter could and would be granted to the grandmother on the ground E
that the former was “treated” as the child of the family. In fact, it is recorded
F F
in the judgment that whether a residence order would be made in favour of
G the grandmother was yet to be determined. G
H H
32. Mr Dykes SC also refers me to the definition of the “child of the
I family” in section 2 of the MPPO. However, I think the definition of the I
“child” in the MPPO should also be considered. Both definitions are now set
J J
out below:
K K
(1) “child” (子女), in relation to one or both parties to a
L L
marriage, includes an illegitimate or adopted child of that
M party or, as the case may be, of both parties; M
N N
(2) “child of the family” (家庭子女), in relation to the parties
O to a marriage, means— O
(a) a child of both those parties; and
P P
(b) any other child who has been treated by both
Q Q
those parties as a child of their family;
R R
33. In my view, in order for X and Y to fall within the definition of
S S
the “child of the family”, merely the fact that they had been “treated” by the
T parties as the children of the family is not sufficient, X and Y should also T
U U
V V
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A A
B B
fulfill the definition of “child” set out at [32] above. Arguably, the said
C
definition has not expressly included surrogate children. C
D D
34. Besides, the legal position of the husband vis-à-vis the
E illegitimately-born X and Y, pursuant to section 5 of the PCO and section 21 E
of the GMO, should be further explored.
F F
G 35. The interplay between the definition of the “child” and the “child G
of the family”, and the requirements or restrictions set out in aforesaid
H H
surrogacy-related ordinances, namely the HRTO, the PCO and the GMO
I is/are important and complex legal issues that, for the development of I
jurisprudence of family law in this jurisdiction, should be better disposed of
J J
by a higher court.
K K
36. It is further hope that there will be a clearer guidance from the
L L
higher court on the aforesaid issues, in particularly those mentioned in [2]
M above. M
N Delay N
O O
37. It is fairly accepted by Mr Dykes SC in his written submission
P on the Transfer Issue that “a delay caused by a transfer will not cause injustice P
to [the wife] and the children”.
Q Q
R 38. I accept this. Although a social investigation report is not yet R
called by me, there is no contrary evidence that X and Y are not well taken
S S
care of by the wife.
T T
U U
V V
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A A
B B
Inherent jurisdiction
C C
39. Given my above preliminary observation, I express my doubt if
D D
I can grant the custody of X and Y to the wife, who is not their legal parent. I
E accept that the court cannot compel the parties to apply for a parental order or E
commence adoption procedures. Hence, I had considered at one stage if I
F F
should adjourn the Consent Summons sine die, or make an order that no order
G be made in respect of the custody of X and Y. However, on second thought, G
I come to the view that such a course will leave the position of X and Y
H H
dangling in the air, which is not in their best interest.
I I
40. As such, I do urge that the parties of this case should seriously
J J
consider applying for a parental order or commence adoption procedures.
K Until that is done, transferring this case to the Court of First Instance will K
safeguard the interest of X and Y, since the Court of First Instance enjoys an
L L
inherent jurisdiction that the Family Court lacks and may, where appropriate,
M make X and Y wards of the court in order to protect their best interest (See: S M
v J (supra)).
N N
O The Elder Son O
P P
41. The Consent Summons concerning the parties’ eldest son
Q (defined as the Elder Son in the Consent Summons) and his maintenance is of Q
no dispute and in order. So, I shall make an order in terms of those relevant
R R
parts (as amended).
S S
T T
U U
V V
- 16 -
A A
B B
Conclusion
C C
42. For all the matters set out above, I shall make the following order:
D D
E (1) Custody, care and control of the Elder Son shall be granted to the E
wife, with reasonable access be granted to the husband;
F F
G (2) The husband shall pay the wife for the maintenance of the Elder G
Son in the sum of $10,000 per month, commencing from 1
H H
August 2023 and thereafter on the 1st day of each month until the
I Elder Son reaches 18 years old or completes his full-time I
education, whichever is the later. Such payment shall be made
J J
into the designated bank account of the wife (details to be
K inserted into the draft order for approval). K
L L
(3) The proceedings, including the rest of the Consent Summons, be
M transferred to the Court of First Instance of the High Court; M
N N
(4) A social investigation report shall be prepared and ready 14 days
O before the hearing fixed before the Court of First Instance. The O
wife’s solicitors shall inform the Director of Social Welfare of
P P
the new case number within 7 days upon receipt of the same from
Q the High Court. The social investigation report shall be lodged Q
by the Director of Social Welfare in the High Court under the
R R
new case number;
S S
(5) The Official Solicitor be requested to represent X and Y. He shall
T T
lodge his report 14 days before the hearing fixed before the Court
U U
V V
- 17 -
A A
B B
of First Instance. The wife’s solicitors shall inform the Official
C
Solicitor of the new case number within 7 days upon receipt of C
the same from the High Court. The Official Solicitor shall lodge
D D
his report in the High Court under the new case number;
E E
(6) The wife’s solicitors shall serve a copy of the court orders of this
F F
decision, and a copy of this decision, on the Official Solicitor;
G G
(7) The wife’s solicitors are to lodge the First Directions Hearing
H H
Bundle within the time stipulated in paragraph 15 of PD 15.14.
I The First Directions Hearing Bundle shall contain the Petition, I
the Statement As to the Arrangements for the Children, the
J J
Consent Summons, the wife’s 2 nd Affirmation Summons, this
K Decision on the Transfer and related orders, a succinct K
chronology of events, the written submissions set out at [11] of
L L
this decision, a list of (updated) issues and the proposed
M directions; and M
N N
(8) Costs of the present proceedings be reserved and to be
O determined by the Court of First Instance. O
P P
43. It is directed that the order at [42] should be drawn up by the
Q wife’s legal team into 2 separate orders, namely sub-paragraphs (1) and (2) as Q
one order, and the rest relating to the transfer as another separate order.
R R
S S
Grace Chan
T T
District Judge
U U
V V
- 18 -
A A
B B
Mr Philip Dykes SC instructed by Messrs B C Chow & Co for the petitioner
C C
(wife)
D
The respondent (husband) acting in person and absent D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
FCMC 2719 / 2022
[2023] HKFC 146
C C
D
IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E MATRIMONIAL CAUSES E
NUMBER 2719 OF 2022
F F
----------------------------
G G
BETWEEN
H
HC formerly known as HWH Petitioner H
I And I
J J
WYH Respondent
K K
----------------------------
L L
Coram : Her Honour Judge Grace Chan in Chambers (paper disposal)
M M
Date of Decision : 28 July 2023
N N
-----------------------
O O
DECISION
P ( Surrogate children; Transfer to the Court of First Instance ) P
-----------------------
Q Q
R 1. This would have been a run of the mill case in the Family Court, R
had it not been the fact that two of the children involved in this case (now
S S
about 4 years old) were born by surrogate mothers pursuant to two
T commercial surrogacy agreements made respectively on 20 October 2017 and T
19 December 2017 between the parties and the relevant surrogate mother.
U U
V V
- 2 -
A A
B B
C
2. The major concern is whether the Family Court can grant custody C
of the said two surrogate children to the wife of this case, despite the fact that:
D D
(a) a parental order or an adoption order has not been put in place to
E E
legalise the parent-child relationship; and/or
F F
G
(b) the court has not sanctioned the expenses of the surrogacy G
agreements which are prohibited and unenforceable under local
H H
law in Hong Kong.
I I
Background
J J
K 3. The parties were married in 2012, but separated since in or about K
March 2019. The petitioner (“wife”) filed her petition for divorce in April
L L
2022, to which the respondent (“husband”) did not object. Decree nisi was
M granted on 27 September 2022. M
N N
4. The parties have a son born within their wedlock in 2015.
O O
5. In 2017, they decided to enter into 2 surrogacy agreements via
P P
an agency in California, the USA. Accordingly, the following children were
Q born in 2018: Q
R (a) a daughter (whom I shall call “X”) was born in September 2018 R
S
by a surrogate mother, Ms A; S
T T
U U
V V
- 3 -
A A
B B
(b) a son (whom I shall call “Y”) was born in November 2018 by a
C
surrogate mother, Ms B. C
D D
6. X and Y were born as a result of an embryo transfer procedure
E in which that the embryo(s) formed by the egg(s) of the wife and the sperm(s) E
of the husband was/were transferred to the uterus of Ms A and Ms B
F F
respectively.
G G
7. Further, prior to the birth of X and Y, the parties have obtained a
H H
Pre-birth Order from the California Court, declaring that they are the legal
I parents of the relevant unborn child, and that each of the surrogate mothers is I
not the legal parent of the relevant unborn child (“Pre-Birth Orders”).1 The
J J
parties are thus named as the “parents” of X and Y in their birth certificates
K issued by the State of California. K
L L
8. Upon the breakdown of their marriage, the parties filed a consent
M summons on 11 May 2022 to settle the custody and ancillary relief matters M
(“Consent Summons”). Among other things, the Consent Summons
N N
provides that the custody, care and control of X and Y be granted to the wife,
O and the husband shall enjoy reasonable access to them. O
P P
9. On its own motion, this court alerted the parties, in respect of X
Q and Y, of section 12 of the Parent and Child Ordinance, Cap 429 (“PCO”), Q
section 17 of the Human Reproductive Technology Ordinance, Cap 561
R R
(“HRTO”), and some of the authorities on surrogacy.2 This court raised the
S S
1
a Judgment of Parental Rights was filed on 20/7/2018 (in respect of X) and 28/9/2018 (in respect of Y)
T by the parties with the California Court. T
2
HCMP 1857/2016 [2017] HKLRD 129; HCMP 1571/2018 [2019] HKCFI 1749, [2019] 5 HKLRD 366;
HCMP 607/2021 [2022] HKCFI 556, [2022] 2 HKLRD 191; HCMP 797/2021 [2022] HKLRD 685.
U U
V V
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A A
B B
requisitions as to whether an application would be made in accordance with
C
the applicable law and if so, whether such an application would do so in the C
Family Court or the Court of First Instance (“Surrogacy Issue”).
D D
10. Further, on 14 April 2023, this court invited written submission
E E
as to whether this case should be transferred to the Court of First Instance for
F disposal (“Transfer Issue”). F
G G
11. In the result, the wife lodged her written submission, including:
H H
(a) Speaking note dated 9 January 2023 prepared by Messrs. B C
I I
Chow & Co (on the Surrogacy Issue);
J J
(b) Written submission prepared by Mr Philip Dykes SC dated 2
K K
March 2023 (which touches on the Surrogacy Issue);
L L
(c) Written submission prepared by Mr Philip Dykes SC dated 5
M M
May 2023 (on the Transfer Issue).
N N
12. The husband has not filed any written submission. In fact, after
O O
signing the Consent Summons, he has not engaged any further in this case.
P He has failed to appear in any of the hearings held in the Family Court. P
Q Q
13. So far, the parties have not applied for nor obtained a parental
R order, nor have they commenced any adoption procedures, in respect of X and R
Y.
S S
T T
U U
V V
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A A
B B
The wife’s stance/argument
C C
14. The wife invites the court to approve the Consent Summons
D D
soonest possible, such that a declaration pursuant to section 18 of the
E Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) can E
be made, after which she may proceed to applying for decree absolute without
F F
delay.
G G
15. Simply put, Mr Dykes SC submits that the lack of a parental
H H
order or an adoption order in this case is not an obstacle to the Family Court
I to make an appropriate order in the best interest of X and Y under the MPPO. I
What the wife now seeks is simply an order based on the children’s “status”
J J
as the “children of the family” within the meaning of section 2 of the MPPO.
K On the Transfer Issue, Mr Dykes SC does not expressly object that the case K
should be transferred to the Court of First Instance. But my overall reading of
L L
his written submission is that the case needs not be transferred, since there is
M no novelty or complexity in law, and/or that it is pre-mature to transfer without M
making any findings by the Family Court into the surrogacy arrangements
N N
(See: T and anr v N and ors [2022] 3 HKC 459).
O O
Legal principles on the Transfer
P P
Q 16. In FHM v KYM & others [2015] HKFC 24, a case also cited by Q
Mr Dykes SC, I have summarised the applicable legal principles concerning
R R
transfer of cases from the Family Court to the Court of First Instance at §§ 45-
S 46 therein which are repeated below: S
T T
U U
V V
- 6 -
A A
B “45. Section 32 (1) of the Matrimonial Causes Rules provides that the B
District Court may,
C C
"order that a cause or application pending in the District Court
be transferred to the Court of First Instance, where having
D regard to all the circumstances including the difficulty or D
importance of the cause or application or of any issue arising
therein, the court thinks it desirable that the cause or application
E E
should be heard and determined in the Court of First Instance”
F 46. Reference should be made to PD 15.14 which relates to the transfers F
of proceedings from the Family Court to the Court of First Instance
and useful cases such as Jack v Jack and Anor, DCCJ 3782/1995; B v
G G
B, FCMC 3105/1999, date of judgment: 11 July 2000; H v H,
FCMC 7173/2000, date of judgment: 1 February 2002.
H H
I 17. At §47 of that judgment, I listed the relevant considerations as I
follows:
J J
K (a) Whether there is a matter of public interest; K
L L
(b) Where there are novel or difficult points of law to be
M resolved; M
N N
(c) Where delay will work a clear injustice;
O O
(d) Where there is unduly complicated or conflicting evidence
P P
the resolution of which is likely to be so protracted that it
Q will unduly prejudice the Family Court lists and this work Q
against the interests of other litigants;
R R
S (e) Whether the financial limits for the time being relating to S
the jurisdiction of the District Court in other matters (but
T T
this factor alone is not decisive);
U U
V V
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A A
B B
C
(f) In general, whether there is special complexity. C
D D
Public interest
E E
18. From my experience sitting in the Family Court, the number of
F F
cases involving surrogate children are on the rise, probably due to the rapid
G development in human reproduction technology and its related market. A G
portion of these surrogacy cases take the form of an adoption application, but
H H
many more are only revealed to the Family Court, upon enquiry of the
I judge(s), during the first appointment hearings or children appointment I
hearings.
J J
K 19. Surrogacy arrangement brings into play the questions of the legal K
position of a surrogate child, and his legal relationship to the commissioning
L L
parents as well as to the surrogate mother. And it must be right that there is
M public interest in the issues or concern set out at [2] of this decision. Mr Dykes M
SC makes similar remarks in his written submission on the Transfer Issue.3
N N
O Novelty & complexity O
P P
20. To begin with, I would point out that as far as I know, most if not
Q all of the cases involving surrogate child(ren), unless they merely involve an Q
application for an adoption order, have been transferred to the Court of First
R R
Instance for disposal, due to the complexity and/or the fact that the Court of
S First Instance enjoys inherent jurisdiction that the Family Court does not have. S
T T
3
§8 of written submission dated 5/5/2023.
U U
V V
- 8 -
A A
B B
For example: Re Section 12 of the Parent and Child Ordinance (Cap 429)
C
[2015] 1 HKLRD 229. C
D D
21. Next, I wish to refer to 3 local ordinances that are relevant to
E surrogate arrangements. E
F F
22. The first relevant ordinance is the HRTO. Under section 17 of
G HRTO, surrogacy agreements on commercial basis is prohibited. Further, G
section 39 makes violation of section 17 a criminal offence which is
H H
punishable with a fine and an imprisonment of 6 months on first conviction.
I Section 18 provides that no surrogacy agreement is enforceable in Hong Kong I
by or against any of the persons making it.
J J
K 23. Then, there is Part V of the PCO. Sections 9 and 10 define the K
meaning of “mother” and “father” respectively where birth or pregnancy
L L
results from medical treatment. Broadly, the surrogate mother is regarded as
M the mother of the surrogate child, no matter whether she was in Hong Kong M
or elsewhere at the time of placing in her of the embryo or sperms and eggs.
N N
And if at the time when the embryo was placed in her, she was a party to a
O marriage, then her husband shall be regarded as the father of the child; and if O
she was not married at that time, then her male partner (whom together with
P P
her obtained treatment services in the course of which the embryo or sperms
Q or eggs were placed in her) is regarded as the father of the surrogate child. Q
R R
24. There is a presumption under section 5 of the PCO, which
S provides that: S
T “5. Presumptions T
(1) A man shall be presumed to be the father of a child—
U U
V V
- 9 -
A A
B (a) if he was married to the mother of the child at any time and if B
there arises by virtue of that marriage a presumption of law
C that the child is the legitimate child of that man; or C
(b) where no man is presumed to be the father under
paragraph (a), and subject to section 10(3), if he has been
D D
registered as the father of the child by an entry made after
the commencement of this section in any register of births
E kept by the Registrar of Births and Deaths under any E
Ordinance.
(2) Any presumption under subsection (1) may be rebutted by
F F
proof on a balance of probabilities.
…” (emphasis added)
G G
H 25. Section 12 of the PCO provides the legal framework for H
application of a parental order, ie an order providing for a child “to be
I I
regarded in law” as the child of the parties to a marriage if :
J J
(a) the child has been carried by a woman, ie the surrogate
K K
mother, as the result of the placing in her of an embryo or
L sperm and eggs or her artificial insemination; L
M M
(b) the gametes of either parties to the marriage, or both, were
N used to bring about the creation of the embryo; and N
O O
(c) the conditions in section 12 (2) to (7) are satisfied.
P P
26. Of note is section 12(7) in relation to expenses of commercial
Q Q
surrogacy agreements:
R R
“(7) The court must be satisfied that no money or other benefit (other
than for expenses reasonably incurred) has been given or received by
S the husband or the wife for or in consideration of— S
(a) the making of the order;
T (b) any agreement required by subsection (5); T
U U
V V
- 10 -
A A
B (c) the handing over of the child to the husband and the B
wife; or
C (d) the making of any arrangements with a view to the C
making of the order,
unless authorized or subsequently approved by the court.” (emphasis
D added) D
E E
27. Finally, there is section 21 of the Guardianship of Minors
F Ordinance, Cap 13 (“GMO”), which provides that the natural father of a child F
who is illegitimate shall “not” be treated as the father of the minor unless:
G G
H (a) he is entitled to the custody of the minor by virtue of an H
order made under section 10 therein, or
I I
J (b) he enjoys any rights or authority with respect to the minor J
by virtue of an order in force under section 3(1) therein.
K K
L 28. The combined effect of the above ordinances on the facts of this L
case, according to my preliminary observation, would mean these:
M M
N (a) Despite the eggs of the wife were used, she is not regarded N
in law as the mother of X and Y. The surrogate mothers
O O
are regarded in law as the respective mother of X and Y.
P Their respective husbands (if they have one) are regarded P
in law the father of X and Y;
Q Q
R (b) The purported relinquishment of the parental rights by the R
surrogate mothers is not recognised in Hong Kong (See: S
S S
v J [2017] 5 HKLRD 129 per Queenie Au-Yeung J at §27).
T T
U U
V V
- 11 -
A A
B B
(c) Although the respective surrogate mothers have warranted
C
in the surrogacy agreements that they are “legally C
unmarried”, it is unclear if each of them has a male partner
D D
that falls within the meaning of section 10 of the PCO.
E Notably, the surrogacy agreements record that both E
4
surrogate mothers have her own child(ren);
F F
G (d) Assuming that the respective surrogate mothers do not G
have a male partner that falls within the meaning of section
H H
10 of the PCO, can the husband of this case be “regarded
I in law” as the father of X and Y? In my view, the legal I
position is unclear. On one hand, the husband is presumed
J J
(but this is rebuttable) to be the father of X and Y, as he is
K named as the father in the birth certificates.5 But on the K
other hand, he can, at the most, be regarded as the father
L L
of the X and Y illegitimately-born by the respective
M surrogate mothers. Under the GMO, the custody of X and M
Y rest with the respective surrogate mothers. The husband
N N
does not enjoy any custodian rights unless an order
O pursuant to section 3(1) or section 10 of the GMO is made O
in his favour by the court;
P P
Q (e) There is no evidence suggesting that the husband has Q
obtained any court order in his favour pursuant to the
R R
GMO. When, to begin with, the custodian rights of X and
S Y do not rest with the husband, then arguably, he does not S
T T
4
See Recital B (2) of both surrogacy agreements.
5
Section 5 of the PCO.
U U
V V
- 12 -
A A
B B
have the legal locus to agree to give the custody of X and
C
Y to the wife. It is trite that parties cannot by their consent C
confer jurisdiction to the court.
D D
29. Mr Dykes SC argues that when it comes to whether the Consent
E E
Summons should be endorsed, there is no need for the court to be concerned
F that a parental order or an adoption order is lacking. The court only needs to F
G
consider that X and Y are “the children of the family” within the meaning of G
the MPPO, and they were so “treated” by the parties during the marriage. The
H H
court thus has the power to make the appropriate order on the custody of X
I
and Y, pursuant to section 19 of the MPPO. I
J J
30. Mr Dykes SC seeks to rely on Re A (child of the family) [1998]
K 1 FLR 347. There, the husband and the wife were the grandparents of a minor K
girl. Upon their divorce, the trial judge ruled that this granddaughter was the
L L
child of the family within the meaning of section 52 of the Matrimonial
M Causes Act 1973, because they had “treated” the granddaughter as their child M
and cared for all her needs, and that her own natural mother was incapable of
N N
looking after her. The grandfather appealed but his appeal was dismissed by
O the English Court of Appeal. O
P P
31. Putting aside the fact that the wording of section 52 of the
Q Matrimonial Causes Act 1973 6 is slightly different from section 2 of the Q
R R
6
“child”, in relation to one or both of the parties to a marriage, includes an illegitimate child of that party
or, as the case may be, of both parties;
S “child of the family”, in relation to the parties to a marriage, means— S
(a) a child of both of those parties; and
(b) any other child, not being a child who is placed with those parties as foster parents by a local authority
T or voluntary organisation, who has been treated by both of those parties as a child of their family; T
U U
V V
- 13 -
A A
B B
MPPO, I do not think Re A can advance the wife’s case. In Re A, the court
C
found that the granddaughter was treated as the child of the family “for the C
purpose of financial provision by the husband” (ie grandfather) only. Neither
D D
the trial judge, nor the Court of Appeal made any ruling that custody of the
E granddaughter could and would be granted to the grandmother on the ground E
that the former was “treated” as the child of the family. In fact, it is recorded
F F
in the judgment that whether a residence order would be made in favour of
G the grandmother was yet to be determined. G
H H
32. Mr Dykes SC also refers me to the definition of the “child of the
I family” in section 2 of the MPPO. However, I think the definition of the I
“child” in the MPPO should also be considered. Both definitions are now set
J J
out below:
K K
(1) “child” (子女), in relation to one or both parties to a
L L
marriage, includes an illegitimate or adopted child of that
M party or, as the case may be, of both parties; M
N N
(2) “child of the family” (家庭子女), in relation to the parties
O to a marriage, means— O
(a) a child of both those parties; and
P P
(b) any other child who has been treated by both
Q Q
those parties as a child of their family;
R R
33. In my view, in order for X and Y to fall within the definition of
S S
the “child of the family”, merely the fact that they had been “treated” by the
T parties as the children of the family is not sufficient, X and Y should also T
U U
V V
- 14 -
A A
B B
fulfill the definition of “child” set out at [32] above. Arguably, the said
C
definition has not expressly included surrogate children. C
D D
34. Besides, the legal position of the husband vis-à-vis the
E illegitimately-born X and Y, pursuant to section 5 of the PCO and section 21 E
of the GMO, should be further explored.
F F
G 35. The interplay between the definition of the “child” and the “child G
of the family”, and the requirements or restrictions set out in aforesaid
H H
surrogacy-related ordinances, namely the HRTO, the PCO and the GMO
I is/are important and complex legal issues that, for the development of I
jurisprudence of family law in this jurisdiction, should be better disposed of
J J
by a higher court.
K K
36. It is further hope that there will be a clearer guidance from the
L L
higher court on the aforesaid issues, in particularly those mentioned in [2]
M above. M
N Delay N
O O
37. It is fairly accepted by Mr Dykes SC in his written submission
P on the Transfer Issue that “a delay caused by a transfer will not cause injustice P
to [the wife] and the children”.
Q Q
R 38. I accept this. Although a social investigation report is not yet R
called by me, there is no contrary evidence that X and Y are not well taken
S S
care of by the wife.
T T
U U
V V
- 15 -
A A
B B
Inherent jurisdiction
C C
39. Given my above preliminary observation, I express my doubt if
D D
I can grant the custody of X and Y to the wife, who is not their legal parent. I
E accept that the court cannot compel the parties to apply for a parental order or E
commence adoption procedures. Hence, I had considered at one stage if I
F F
should adjourn the Consent Summons sine die, or make an order that no order
G be made in respect of the custody of X and Y. However, on second thought, G
I come to the view that such a course will leave the position of X and Y
H H
dangling in the air, which is not in their best interest.
I I
40. As such, I do urge that the parties of this case should seriously
J J
consider applying for a parental order or commence adoption procedures.
K Until that is done, transferring this case to the Court of First Instance will K
safeguard the interest of X and Y, since the Court of First Instance enjoys an
L L
inherent jurisdiction that the Family Court lacks and may, where appropriate,
M make X and Y wards of the court in order to protect their best interest (See: S M
v J (supra)).
N N
O The Elder Son O
P P
41. The Consent Summons concerning the parties’ eldest son
Q (defined as the Elder Son in the Consent Summons) and his maintenance is of Q
no dispute and in order. So, I shall make an order in terms of those relevant
R R
parts (as amended).
S S
T T
U U
V V
- 16 -
A A
B B
Conclusion
C C
42. For all the matters set out above, I shall make the following order:
D D
E (1) Custody, care and control of the Elder Son shall be granted to the E
wife, with reasonable access be granted to the husband;
F F
G (2) The husband shall pay the wife for the maintenance of the Elder G
Son in the sum of $10,000 per month, commencing from 1
H H
August 2023 and thereafter on the 1st day of each month until the
I Elder Son reaches 18 years old or completes his full-time I
education, whichever is the later. Such payment shall be made
J J
into the designated bank account of the wife (details to be
K inserted into the draft order for approval). K
L L
(3) The proceedings, including the rest of the Consent Summons, be
M transferred to the Court of First Instance of the High Court; M
N N
(4) A social investigation report shall be prepared and ready 14 days
O before the hearing fixed before the Court of First Instance. The O
wife’s solicitors shall inform the Director of Social Welfare of
P P
the new case number within 7 days upon receipt of the same from
Q the High Court. The social investigation report shall be lodged Q
by the Director of Social Welfare in the High Court under the
R R
new case number;
S S
(5) The Official Solicitor be requested to represent X and Y. He shall
T T
lodge his report 14 days before the hearing fixed before the Court
U U
V V
- 17 -
A A
B B
of First Instance. The wife’s solicitors shall inform the Official
C
Solicitor of the new case number within 7 days upon receipt of C
the same from the High Court. The Official Solicitor shall lodge
D D
his report in the High Court under the new case number;
E E
(6) The wife’s solicitors shall serve a copy of the court orders of this
F F
decision, and a copy of this decision, on the Official Solicitor;
G G
(7) The wife’s solicitors are to lodge the First Directions Hearing
H H
Bundle within the time stipulated in paragraph 15 of PD 15.14.
I The First Directions Hearing Bundle shall contain the Petition, I
the Statement As to the Arrangements for the Children, the
J J
Consent Summons, the wife’s 2 nd Affirmation Summons, this
K Decision on the Transfer and related orders, a succinct K
chronology of events, the written submissions set out at [11] of
L L
this decision, a list of (updated) issues and the proposed
M directions; and M
N N
(8) Costs of the present proceedings be reserved and to be
O determined by the Court of First Instance. O
P P
43. It is directed that the order at [42] should be drawn up by the
Q wife’s legal team into 2 separate orders, namely sub-paragraphs (1) and (2) as Q
one order, and the rest relating to the transfer as another separate order.
R R
S S
Grace Chan
T T
District Judge
U U
V V
- 18 -
A A
B B
Mr Philip Dykes SC instructed by Messrs B C Chow & Co for the petitioner
C C
(wife)
D
The respondent (husband) acting in person and absent D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V