In brief
- Surrogacy is becoming an increasingly common path to parenthood, despite Hong Kong’s restrictive legal framework.
- Without legal recognition of parentage, surrogate born children may face significant inheritance and succession challenges.
- Intended parents should act early to secure legal parentage and implement appropriate estate planning measures.
Under the existing legal framework, commercial surrogacy remains unlawful in Hong Kong, regardless of the jurisdiction in which the arrangement is effected. There is however no definition of what arrangement constitutes a commercial surrogacy. Despite the absence of openly available surrogacy services or public promotion within Hong Kong, we note a gradual shift in societal attitudes in recent years whereby individuals and couples including those within the LGBTQ community, irrespective of their martial status, are increasingly proactive in exploring options for parenthood, often undertaking independent research and considering cross-border arrangements in jurisdictions where surrogacy is legally permissible and regulated.
Surrogacy as a concept has gained broader social recognition and acceptance. This development is partly influenced by well-established legal regimes in jurisdictions such as the United States, where owing to it being a birthright country, remains a popular destination for surrogacy arrangements, particularly given its mature and comprehensive system. The availability of structured and regulated arrangements abroad has contributed to the perception of surrogacy as a viable and legitimate pathway to parenthood, particularly for those unable to conceive naturally.
What is the current trend in surrogacy planning?
Until recent years, Clients that required legal assistance concerning surrogacy were previously primarily focused on immigration clearance, with the objective of securing lawful residence for the surrogate-born child. Issues relating to legal parentage were often treated as secondary. Intended parents were typically reluctant to pursue parental orders or adoption orders, given the stringent requirement for full and frank disclosure. Such applications necessitate detailed disclosure of the surrogacy arrangement, including financial aspects and the circumstances under which the arrangement was entered into, thereby exposing the intended parents to potential risk of contravening the legislation against commercial surrogacy.
Historically, concerns regarding risk of contravening the legislation against commercial surrogacy deterred intended parents from formalising their legal status with their surrogate child. In bringing a parental order application, it gives rise to self-incrimination by disclosing surrogacy paperwork has further reinforced this reluctance, discouraging many intended parents from taking steps to regularise their legal position. However, there has been a noticeable shift in recent years with intended parents now adopting a more informed and strategic approach, for fear of their surrogate child not being recognised as their lawful issue. This is especially important if they already have natural born children. Parental order application is accordingly an essential mechanism for securing legal certainty, safeguarding parental rights, and promoting family stability.
Having said that, there is a recent Hong Kong judgement that reinforced the trite position of divorcing parents having treated their surrogate child as child of the family which enables the Family Court to make custody and access orders.
What are the implications for succession planning?
While succession planning may not appear to be an immediate concern at the time of a child’s birth, it is nonetheless a critical consideration of a surrogate child being entitled to inherit from his/her parents in the event of intestacy as he/she is not regarded as a child of the parents, particularly in the absence of a parental order. Early and comprehensive estate planning is essential to minimise legal uncertainty.
In contentious probate proceedings, the absence of legally recognised parentage may materially affect a child’s standing and entitlement with his/her siblings. This is especially problematic in families with multiple children, where distinctions may arise between children born by the parents and those born through surrogacy. A child without formal legal recognition may face challenges in asserting inheritance rights, thereby creating potential inequities and disputes.
The risks are amplified in cases involving high-value estates, family-owned enterprises, or complex trust arrangements. In such cases, the identification of beneficiaries and the determination of their respective entitlements are often subject to close legal scrutiny. Any uncertainty over parentage can give rise to unnecessary prolonged disputes, interrupt business operations, and place significant strain on family relationships. The financial and emotional costs associated with such disputes can be substantial, potentially undermining family harmony and long-term wealth preservation objectives.
Why is surrogacy law reform needed in Hong Kong?
In light of the evolving social landscape and the increasing prevalence of cross-border surrogacy arrangements, there is a compelling case for reform of the current legal framework in Hong Kong. The existing regime does not fully reflect modern family structures or the practical realities faced by intended parents.
By way of comparison, in England and Wales, both couples and single individuals may apply for a parental order, provided that the statutory requirements are satisfied. However, in Hong Kong, only a heterosexual couple who were married to each other at the time of the child’s birth are eligible to apply for a parental order. Families who fall outside this narrow category have no alternative but to consider applying for an adoption order. While an adoption order is capable of conferring legal parenthood and parental responsibility there is no comparison to a parental order. In particular, an adoption order does not recognise the genetic connection between the child and the intended parent(s). Reform is therefore essential to enhance legal certainty, better safeguard the welfare of children born through surrogacy, and reduce the risk of future disputes within the family.
There is currently no legislative intention to reform the current ordinances namely the Human Reproductive Technology Ordinance (Cap.561) and the Parent and Child Ordinance (Cap.429). The intended parents must in the meantime take proactive steps to safeguard their surrogate child's legal position such as applying for a parental order to establish formal legal recognition of parentage or where a parental order is unavailable, seeking an adoption order. In parallel, comprehensive estate planning, such as the preparation of wills or set up of trusts is essential to ensure the surrogate child’s rights and interests are adequately protected.
At the same time, maintaining clarity and mutual understanding within the family is equally important. Open communication and forward planning can significantly reduce the likelihood of disputes arising from uncertainty over legal status. By taking a proactive and structured approach, intended parents can better secure both legal certainty and long-term family stability.
How we can help
At Mishcon de Reya LLP, we understand that modern family-building including through surrogacy, assisted reproduction and donor conception are increasingly popular options. We have particular experience advising on the legal complexities arising from surrogacy arrangements involving Hong Kong and cross-border family structures. Our experienced Family team are able to advise you as to the legal implications of entering into such arrangements, ensuring that your journey to family building can be navigated as smoothly as possible.