HSC AND ANOTHER v. 田

HCMP 706/2025 &
HCMP 707/2025

[2025] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 706 OF 2025

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AND

MISCELLANEOUS PROCEEDINGS NO 707 OF 2025

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REASONS FOR DECISION

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A. INTRODUCTION

1.  This is the call-over hearing of 2 originating summonses (“OSs”)  that seek parental orders for 2 boys.  This case raises an alert as to having children born in Mainland China out of surrogacy arrangements.

2.  The 2 boys were born on the same date in 2024, but by different surrogates who are the Respondents (“the Surrogates”).  The boy in HCMP 706/2025 is the younger one, born about 1 hour and 5 minutes later.  The commissioning parents are the Applicants (“Husband” and “Wife”, respectively), aged about 60.  As the issues are the same, the two OSs are heard together.  The Respondents are absent as they have not been served.

3.  After the hearing, apart from usual directions on anonymity and costs, I made, amongst others, the following orders:

(1)  The application for a substituted service order is dismissed;

(2)  The application for an order for interim care and control of the boys to the Applicants is dismissed at this stage;

(3)  There be leave to the Applicants to file a further expert report to state:

(a)  Whether and how the Surrogate in each case could give up her rights and obligations as a mother over the child she gave birth to under Mainland Chinese law in favour of the Wife; and

(b)  Whether it is possible for the Surrogate in each case to assist in the application for the Hong Kong identity card or single way permits for the child she gave birth to.

(4)  There be leave to the Applicants to file and serve a further affirmation.

B.  BACKGROUND

4.  The Applicants have married for 33 years by now.  The Husband is a businessman who owns and operates factories in Mainland China and runs a business in Hong Kong.  The Wife is a housewife. 

5.  The couple are infertile.  They had attempted to conceive through vitro fertilization years ago but failed.  In 2020, the 1^st Applicant (“Husband”)  met an agent called S in Shenzhen, Mainland China, upon introduction by a friend.  She allegedly worked in an institution that assisted in birth of children.  The Husband was assured by his friend that S was trustworthy.  The Applicants were not able to go further because COVID hit.

6.  In mid-July 2023, the Husband entered into two oral surrogacy agreements with S or her institution that were about a month apart.  As a result, the Surrogates were impregnated with embryos created using the Husband’s sperms and donors’ eggs. 

7.  The boys were born on the same date in the same hospital.  Their births were registered in Shenzhen.  Each Surrogate’s name appeared on the birth certificate of the respective boy to whom she gave birth.  The boys’ biological link with the Husband is shown via DNA tests. 

8.  Each Surrogate has given written consent stating that she was not married at the time the surrogacy medical procedures were carried out and that she agreed unconditionally to the making of the parental orders freely and with full understanding of what was involved (“the Written Consent”).

9.  The boys have, since birth, been raised in the couple’s home in Mainland China, under the care of the Wife and a nanny.  The Husband shuttles between Hong Kong and Shenzhen.  The idea is to bring the boys back to the couple’s home in Hong Kong upon completion of the paperwork. 

10.  S had repeatedly assured the Husband that everything would go smoothly.  The Applicants first realized that the matter was not as simple as they thought when they applied for Hong Kong identity cards for the boys.

11.  The Applicants do not have household registration (戶籍)  in Mainland China any more, since becoming permanent residents of Hong Kong in the 1980s.  The only route through which the boys might obtain household registration was through their respective birth mother.  However, the Surrogates do not have household registration in Shenzhen and do not intend to bring up the boys in any event. There is thus no point in obtaining household registration through them.  The only residency or citizenship that the sons can obtain appears to be that of Hong Kong.

12.  The application for Hong Kong identity cards for them has to be done by filling out a form called 香港永久性居民在内地所生中國籍子女赴香港定居申請表 submitted to the Immigration Department of the Public Order Bureau of the People's Republic of China.  The Applicants are unable to submit that form because the Wife is not the birth mother.

13.  In October 2024, the Applicants sought legal advice from Hong Kong lawyers and PRC lawyers.  The Applicants then filed these OSs.

C.  SUBSTITUTED SERVICE

14.  The Applicants proposed to serve both Surrogates by way of courier of the application papers to S’s office address in Shenzhen.  It was claimed that this mode of service had obvious advantages over formal arrangements for service out of jurisdiction.  The Reasons were that:

(1)  If service out of jurisdiction had to be done through Mainland Chinese judicial authorities, it could take a long time.

(2)  Given that the family is now waiting for parental orders to be granted so that the boys could begin their lives in Hong Kong, such delay would not be in the boys’ best interests.

(3)  The Applicants did not have the direct contact of the Surrogates.  They were always contacted through S, who has confirmed that upon receipt of the papers, she would pass the papers and explain the contents to the Surrogates.  The Surrogates did not seem to understand English.  Without S’s involvement, they would not know what was going on.

(4)  The Surrogates would clearly not contest the proceedings and have no intention to participate in the children’s lives.  This was a suitable case for papers to be served in the way suggested by the Applicants.  Counsel relies on the case of FH v WB [2019] 5 HKC 99, §196, Au-Yeung J, where it was stated that the Court may be flexible with service or order substituted service in appropriate cases.

15.  With respect, seeking substituted service, which must have been suggested by legal representatives, was totally unsupported by authorities. 

16.  With regard to Reason (1), an order for substituted service is granted only after efforts to effect service in the manner prescribed by the Rules of the High Court have failed: Director of Social Welfare v HSP [2014] 2 HKC 51, §75, DHCJ B Chu (as she then was).  A mere desire for speed is not a ground for permitting substituted service out of jurisdiction.  If it were otherwise, substituted service would become the norm.  See Hong Kong Civil Procedure 2025, Vol 1, §11/5/16.

17.  In the present case, no attempt has been made to serve any of the Respondents.  No attempt has been made to apply for service out of jurisdiction (if necessary)  on them.  The fact that a necessary mode of service prescribed by law required time was not a reason to dispense with that mode.

18.  With regard to Reason (2), there was no suggestion that parental orders were needed to meet an emergency, eg urgent medical operations.

19.  With regard to Reason (3), the Applicants could have ascertained the Surrogates’ contact addresses from the birth certificates of the boys.

20.  Service through S would be most unreliable because:

(1)  The affirmation in support of the parental orders disclosed that S might have misled the Husband into thinking that having children being born out of surrogacy would go smoothly when, in reality, things did not turn out smoothly on the legal side of things.

(2)  There was nothing to show that S was conversant with English or possessed legal qualifications such that she could be relied on to explain the Hong Kong court documents to the Surrogates.

21.  With regard to Reason (4), the fact that the Surrogates had given the Written Consents was not equivalent to an agreement that they also consented to the dispensation with service of proceedings on them.  Even if they had so agreed, it would not bind the Court.

22.  FH v WB [2019] 5 HKC 99, §196 was quoted by counsel out of context.  Paragraph 197 made it clear that the default position was that the surrogate and her husband must be made parties to the proceedings.  Paragraph 196 spoke of an example when an application for parental order might be made years after the child’s birth and the surrogate and her husband had never participated in the life of the child. It was in such context that the Court mentioned about flexibility with service or ordering substituted service in an appropriate case.  FH v WB was not meant to create a shortcut that bypassed legal requirements on service.

23.  For the reasons given under this Section, I have therefore refused to grant a substituted service order.

D.  INTERIM CARE AND CONTROL

24.  The boys have been living in Mainland China, with the Wife as the main carer and the Husband visiting them regularly.  The Surrogates have disappeared from the boys’ lives.  There was no need to give any interim order for the Husband to have care and control because no one was disputing that he is the biological father.  There was no justification to give any interim order in favour of the Wife as her status as a legal mother was not yet established at this stage. There was no emergency which would have warranted an interim order.  I therefore dismissed the application at this stage.

E.  FURTHER EXPERT REPORT ON MAINLAND CHINESE LAW

25.  The legal expert on PRC laws has correctly identified several issues, amongst which are:

Question 2: who are the legal parents of a child born out of a surrogacy arrangement under PRC law and whether any legal parent can surrender his/her/their parental rights over the child;

Question 3: If the legal parents are persons other than the Applicants or any of them, what steps can the clients take to remove the parental rights of that/those persons?  What steps can the Applicants take to obtain parentage in the PRC?

26.  According to the Chinese legal expert, the Husband is, in law, the Father.  The Surrogates are, in law, the mother of the respective boy to whom they gave birth.  The Wife is the “step mother” of the boys. 

27.  The expert report raised a jurisdiction issue on Question 2 and discussed various PRC judgments.  In particular, §35 states that the People’s Court is competent to deal with a matter under Question 2.  Which court will deal with the matter may depend on the defendant’s domicile or habitual residence, the plaintiff’s domicile or habitual residence. (§35 of the Report)

28.  From the legal perspective, the Applicants are entitled to initiate a court proceeding at the court with competent jurisdiction if there is any dispute over the children.  That is where the birth mother’s domicile is located.  The expert even says that if both parties are able to settle by mediation through the PRC Court with competent jurisdiction, the court may issue a decree to affirm the custody of the children to be granted to the Applicants.  (§37 of the Report)

29.  In particular, the expert says that “if the relationship between the “stepparent” and the “stepchild” is legally established between the Wife and the children, the Wife shall enjoy the same legal rights and bear the same legal duties applicable to the biological parent.  In summary, this will be affirmed by the People’s Court through civil procedures under the PRC law.”  (§44 of the Report) 

30.  The expert, however, has not answered Question 2 or 3 or explained whether the Applicants could take advantage of the relevant civil procedures to determine the respective rights and obligations of the Surrogates and the Wife before coming to the Hong Kong Courts.

31.  It is also not clear if the Surrogates could have assisted in the application for Hong Kong identity cards for the children, which is also probably related to questions of single way permits.  I therefore gave leave for a further legal expert report to be filed.

F.  FURTHER AFFIRMATION

32.  This is to update the Court on developments and any steps taken by the Applicants pursuant to advice of the legal expert.  The Applicants should also exhibit notarized documents when they are available.