HC formerly known as HWH v. WYH

FCMC 2719 / 2022

[2023] HKFC 146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2719 OF 2022

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DECISION
( Surrogate children; Transfer to the Court of First Instance )

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1.  This would have been a run of the mill case in the Family Court, had it not been the fact that two of the children involved in this case (now about 4 years old) were born by surrogate mothers pursuant to two commercial surrogacy agreements made respectively on 20 October 2017 and 19 December 2017 between the parties and the relevant surrogate mother.

2.  The major concern is whether the Family Court can grant custody of the said two surrogate children to the wife of this case, despite the fact that:

(a)  a parental order or an adoption order has not been put in place to legalise the parent-child relationship; and/or

(b)  the court has not sanctioned the expenses of the surrogacy agreements which are prohibited and unenforceable under local law in Hong Kong.

Background

3.  The parties were married in 2012, but separated since in or about March 2019. The petitioner (“wife”) filed her petition for divorce in April 2022, to which the respondent (“husband”) did not object. Decree nisi was granted on 27 September 2022.

4.  The parties have a son born within their wedlock in 2015.

5.  In 2017, they decided to enter into 2 surrogacy agreements via an agency in California, the USA. Accordingly, the following children were born in 2018:

(a)  a daughter (whom I shall call “X”) was born in September 2018 by a surrogate mother, Ms A;

(b)  a son (whom I shall call “Y”) was born in November 2018 by a surrogate mother, Ms B.

6.  X and Y were born as a result of an embryo transfer procedure in which that the embryo(s) formed by the egg(s) of the wife and the sperm(s) of the husband was/were transferred to the uterus of Ms A and Ms B respectively.

7.  Further, prior to the birth of X and Y, the parties have obtained a Pre-birth Order from the California Court, declaring that they are the legal parents of the relevant unborn child, and that each of the surrogate mothers is not the legal parent of the relevant unborn child (“Pre-Birth Orders”).[1] The parties are thus named as the “parents” of X and Y in their birth certificates issued by the State of California.

8.  Upon the breakdown of their marriage, the parties filed a consent summons on 11 May 2022 to settle the custody and ancillary relief matters (“Consent Summons”). Among other things, the Consent Summons provides that the custody, care and control of X and Y be granted to the wife, and the husband shall enjoy reasonable access to them.

9.  On its own motion, this court alerted the parties, in respect of X and Y, of section 12 of the Parent and Child Ordinance, Cap 429 (“PCO”), section 17 of the Human Reproductive Technology Ordinance, Cap 561 (“HRTO”), and some of the authorities on surrogacy.[2] This court raised the requisitions as to whether an application would be made in accordance with the applicable law and if so, whether such an application would do so in the Family Court or the Court of First Instance (“Surrogacy Issue”).

10.  Further, on 14 April 2023, this court invited written submission as to whether this case should be transferred to the Court of First Instance for disposal (“Transfer Issue”).

11.  In the result, the wife lodged her written submission, including:

(a)  Speaking note dated 9 January 2023 prepared by Messrs. B C Chow & Co (on the Surrogacy Issue);

(b)  Written submission prepared by Mr Philip Dykes SC dated 2 March 2023 (which touches on the Surrogacy Issue);

(c)  Written submission prepared by Mr Philip Dykes SC dated 5 May 2023 (on the Transfer Issue).

12.  The husband has not filed any written submission. In fact, after signing the Consent Summons, he has not engaged any further in this case. He has failed to appear in any of the hearings held in the Family Court.

13.  So far, the parties have not applied for nor obtained a parental order, nor have they commenced any adoption procedures, in respect of X and Y.

The wife’s stance/argument

14.  The wife invites the court to approve the Consent Summons soonest possible, such that a declaration pursuant to section 18 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) can be made, after which she may proceed to applying for decree absolute without delay.

15.  Simply put, Mr Dykes SC submits that the lack of a parental order or an adoption order in this case is not an obstacle to the Family Court to make an appropriate order in the best interest of X and Y under the MPPO. What the wife now seeks is simply an order based on the children’s “status” as the “children of the family” within the meaning of section 2 of the MPPO. On the Transfer Issue, Mr Dykes SC does not expressly object that the case should be transferred to the Court of First Instance. But my overall reading of his written submission is that the case needs not be transferred, since there is no novelty or complexity in law, and/or that it is pre-mature to transfer without making any findings by the Family Court into the surrogacy arrangements (See: T and anr v N and ors [2022] 3 HKC 459).

Legal principles on the Transfer

16.  In FHM v KYM & others [2015] HKFC 24, a case also cited by Mr Dykes SC, I have summarised the applicable legal principles concerning transfer of cases from the Family Court to the Court of First Instance at §§ 45-46 therein which are repeated below:

“45. Section 32 (1) of the Matrimonial Causes Rules provides that the District Court may,

"order that a cause or application pending in the District Court be transferred to the Court of First Instance, where having regard to all the circumstances including the difficulty or importance of the cause or application or of any issue arising therein, the court thinks it desirable that the cause or application should be heard and determined in the Court of First Instance”

46. Reference should be made to PD 15.14 which relates to the transfers 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 B, FCMC 3105/1999, date of judgment: 11 July 2000; H v H, FCMC 7173/2000, date of judgment: 1 February 2002.

17.  At §47 of that judgment, I listed the relevant considerations as follows:

(a)  Whether there is a matter of public interest;

(b)  Where there are novel or difficult points of law to be resolved;

(c)  Where delay will work a clear injustice;

(d)  Where there is unduly complicated or conflicting evidence the resolution of which is likely to be so protracted that it will unduly prejudice the Family Court lists and this work against the interests of other litigants;

(e)  Whether the financial limits for the time being relating to the jurisdiction of the District Court in other matters (but this factor alone is not decisive);

(f)  In general, whether there is special complexity.

Public interest

18.  From my experience sitting in the Family Court, the number of cases involving surrogate children are on the rise, probably due to the rapid development in human reproduction technology and its related market. A portion of these surrogacy cases take the form of an adoption application, but many more are only revealed to the Family Court, upon enquiry of the judge(s), during the first appointment hearings or children appointment hearings.

19.  Surrogacy arrangement brings into play the questions of the legal position of a surrogate child, and his legal relationship to the commissioning parents as well as to the surrogate mother. And it must be right that there is public interest in the issues or concern set out at [2] of this decision. Mr Dykes SC makes similar remarks in his written submission on the Transfer Issue.[3]

Novelty & complexity

20.  To begin with, I would point out that as far as I know, most if not all of the cases involving surrogate child(ren), unless they merely involve an application for an adoption order, have been transferred to the Court of First Instance for disposal, due to the complexity and/or the fact that the Court of First Instance enjoys inherent jurisdiction that the Family Court does not have. For example: Re Section 12 of the Parent and Child Ordinance (Cap 429) [2015] 1 HKLRD 229.

21.  Next, I wish to refer to 3 local ordinances that are relevant to surrogate arrangements.

22.  The first relevant ordinance is the HRTO. Under section 17 of HRTO, surrogacy agreements on commercial basis is prohibited. Further, section 39 makes violation of section 17 a criminal offence which is punishable with a fine and an imprisonment of 6 months on first conviction. Section 18 provides that no surrogacy agreement is enforceable in Hong Kong by or against any of the persons making it.

23.  Then, there is Part V of the PCO. Sections 9 and 10 define the meaning of “mother” and “father” respectively where birth or pregnancy results from medical treatment. Broadly, the surrogate mother is regarded as the mother of the surrogate child, no matter whether she was in Hong Kong or elsewhere at the time of placing in her of the embryo or sperms and eggs. And if at the time when the embryo was placed in her, she was a party to a marriage, then her husband shall be regarded as the father of the child; and if she was not married at that time, then her male partner (whom together with her obtained treatment services in the course of which the embryo or sperms or eggs were placed in her) is regarded as the father of the surrogate child.

24.  There is a presumption under section 5 of the PCO, which provides that:

“5. Presumptions

(1) A man shall be presumed to be the father of a child—

(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b) where no man is presumed to be the father under paragraph (a), and subject to section 10(3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.

(2) Any presumption under subsection (1) may be rebutted by proof on a balance of probabilities.

…” (emphasis added)

25.  Section 12 of the PCO provides the legal framework for application of a parental order, ie an order providing for a child “to be regarded in law” as the child of the parties to a marriage if :

(a)  the child has been carried by a woman, ie the surrogate mother, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination;

(b)  the gametes of either parties to the marriage, or both, were used to bring about the creation of the embryo; and

(c)  the conditions in section 12 (2) to (7) are satisfied.

26.  Of note is section 12(7) in relation to expenses of commercial surrogacy agreements:

“(7) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—

(a) the making of the order;

(b) any agreement required by subsection (5);

(c) the handing over of the child to the husband and the wife; or

(d) the making of any arrangements with a view to the making of the order,

unless authorized or subsequently approved by the court.” (emphasis added)

27.  Finally, there is section 21 of the Guardianship of Minors Ordinance, Cap 13 (“GMO”), which provides that the natural father of a child who is illegitimate shall “not” be treated as the father of the minor unless:

(a)  he is entitled to the custody of the minor by virtue of an order made under section 10 therein, or

(b)  he enjoys any rights or authority with respect to the minor by virtue of an order in force under section 3(1) therein.

28.  The combined effect of the above ordinances on the facts of this case, according to my preliminary observation, would mean these:

(a)  Despite the eggs of the wife were used, she is not regarded in law as the mother of X and Y. The surrogate mothers are regarded in law as the respective mother of X and Y. Their respective husbands (if they have one) are regarded in law the father of X and Y;

(b)  The purported relinquishment of the parental rights by the surrogate mothers is not recognised in Hong Kong (See: S v J [2017] 5 HKLRD 129 per Queenie Au-Yeung J at §27).

(c)  Although the respective surrogate mothers have warranted in the surrogacy agreements that they are “legally unmarried”, it is unclear if each of them has a male partner that falls within the meaning of section 10 of the PCO. Notably, the surrogacy agreements record that both surrogate mothers have her own child(ren);[4]

(d)  Assuming that the respective surrogate mothers do not have a male partner that falls within the meaning of section 10 of the PCO, can the husband of this case be “regarded in law” as the father of X and Y? In my view, the legal position is unclear. On one hand, the husband is presumed (but this is rebuttable) to be the father of X and Y, as he is named as the father in the birth certificates.[5] But on the other hand, he can, at the most, be regarded as the father of the X and Y illegitimately-born by the respective surrogate mothers. Under the GMO, the custody of X and Y rest with the respective surrogate mothers. The husband does not enjoy any custodian rights unless an order pursuant to section 3(1) or section 10 of the GMO is made in his favour by the court;

(e)  There is no evidence suggesting that the husband has obtained any court order in his favour pursuant to the GMO. When, to begin with, the custodian rights of X and Y do not rest with the husband, then arguably, he does not have the legal locus to agree to give the custody of X and Y to the wife. It is trite that parties cannot by their consent confer jurisdiction to the court.

29.  Mr Dykes SC argues that when it comes to whether the Consent Summons should be endorsed, there is no need for the court to be concerned that a parental order or an adoption order is lacking. The court only needs to consider that X and Y are “the children of the family” within the meaning of the MPPO, and they were so “treated” by the parties during the marriage. The court thus has the power to make the appropriate order on the custody of X and Y, pursuant to section 19 of the MPPO.

30.  Mr Dykes SC seeks to rely on Re A (child of the family) [1998] 1 FLR 347. There, the husband and the wife were the grandparents of a minor girl. Upon their divorce, the trial judge ruled that this granddaughter was the child of the family within the meaning of section 52 of the Matrimonial Causes Act 1973, because they had “treated” the granddaughter as their child and cared for all her needs, and that her own natural mother was incapable of looking after her. The grandfather appealed but his appeal was dismissed by the English Court of Appeal.

31.  Putting aside the fact that the wording of section 52 of the Matrimonial Causes Act 1973[6] is slightly different from section 2 of the MPPO, I do not think Re A can advance the wife’s case. In Re A, the court found that the granddaughter was treated as the child of the family “for the purpose of financial provision by the husband” (ie grandfather) only. Neither the trial judge, nor the Court of Appeal made any ruling that custody of the granddaughter could and would be granted to the grandmother on the ground that the former was “treated” as the child of the family. In fact, it is recorded in the judgment that whether a residence order would be made in favour of the grandmother was yet to be determined.

32.  Mr Dykes SC also refers me to the definition of the “child of the family” in section 2 of the MPPO. However, I think the definition of the “child” in the MPPO should also be considered. Both definitions are now set out below:

(1)  “child” (子女), in relation to one or both parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;

(2)  “child of the family” (家庭子女), in relation to the parties to a marriage, means—

(a)  a child of both those parties; and

(b)  any other child who has been treated by both those parties as a child of their family;

33.  In my view, in order for X and Y to fall within the definition of the “child of the family”, merely the fact that they had been “treated” by the parties as the children of the family is not sufficient, X and Y should also fulfill the definition of “child” set out at [32] above. Arguably, the said definition has not expressly included surrogate children.

34.  Besides, the legal position of the husband vis-à-vis the illegitimately-born X and Y, pursuant to section 5 of the PCO and section 21 of the GMO, should be further explored.

35.  The interplay between the definition of the “child” and the “child of the family”, and the requirements or restrictions set out in aforesaid surrogacy-related ordinances, namely the HRTO, the PCO and the GMO is/are important and complex legal issues that, for the development of jurisprudence of family law in this jurisdiction, should be better disposed of by a higher court.

36.  It is further hope that there will be a clearer guidance from the higher court on the aforesaid issues, in particularly those mentioned in [2] above.

Delay

37.  It is fairly accepted by Mr Dykes SC in his written submission on the Transfer Issue that “a delay caused by a transfer will not cause injustice to [the wife] and the children”.

38.  I accept this. Although a social investigation report is not yet called by me, there is no contrary evidence that X and Y are not well taken care of by the wife.

Inherent jurisdiction

39.  Given my above preliminary observation, I express my doubt if I can grant the custody of X and Y to the wife, who is not their legal parent. I accept that the court cannot compel the parties to apply for a parental order or commence adoption procedures. Hence, I had considered at one stage if I should adjourn the Consent Summons sine die, or make an order that no order be made in respect of the custody of X and Y. However, on second thought, I come to the view that such a course will leave the position of X and Y dangling in the air, which is not in their best interest.

40.  As such, I do urge that the parties of this case should seriously consider applying for a parental order or commence adoption procedures. Until that is done, transferring this case to the Court of First Instance will safeguard the interest of X and Y, since the Court of First Instance enjoys an inherent jurisdiction that the Family Court lacks and may, where appropriate, make X and Y wards of the court in order to protect their best interest (See: S v J (supra)).

The Elder Son

41.  The Consent Summons concerning the parties’ eldest son (defined as the Elder Son in the Consent Summons) and his maintenance is of no dispute and in order. So, I shall make an order in terms of those relevant parts (as amended).

Conclusion

42.  For all the matters set out above, I shall make the following order:

(1)  Custody, care and control of the Elder Son shall be granted to the wife, with reasonable access be granted to the husband;

(2)  The husband shall pay the wife for the maintenance of the Elder Son in the sum of $10,000 per month, commencing from 1 August 2023 and thereafter on the 1^st day of each month until the Elder Son reaches 18 years old or completes his full-time education, whichever is the later. Such payment shall be made into the designated bank account of the wife (details to be inserted into the draft order for approval).

(3)  The proceedings, including the rest of the Consent Summons, be transferred to the Court of First Instance of the High Court;

(4)  A social investigation report shall be prepared and ready 14 days before the hearing fixed before the Court of First Instance. The wife’s solicitors shall inform the Director of Social Welfare of the new case number within 7 days upon receipt of the same from the High Court. The social investigation report shall be lodged by the Director of Social Welfare in the High Court under the new case number;

(5)  The Official Solicitor be requested to represent X and Y. He shall lodge his report 14 days before the hearing fixed before the Court of First Instance. The wife’s solicitors shall inform the Official Solicitor of the new case number within 7 days upon receipt of the same from the High Court. The Official Solicitor shall lodge his report in the High Court under the new case number;

(6)  The wife’s solicitors shall serve a copy of the court orders of this decision, and a copy of this decision, on the Official Solicitor;

(7)  The wife’s solicitors are to lodge the First Directions Hearing Bundle within the time stipulated in paragraph 15 of PD 15.14. The First Directions Hearing Bundle shall contain the Petition, the Statement As to the Arrangements for the Children, the Consent Summons, the wife’s 2^nd Affirmation Summons, this Decision on the Transfer and related orders, a succinct chronology of events, the written submissions set out at [11] of this decision, a list of (updated) issues and the proposed directions; and

(8)  Costs of the present proceedings be reserved and to be determined by the Court of First Instance.

43.  It is directed that the order at [42] should be drawn up by the wife’s legal team into 2 separate orders, namely sub-paragraphs (1) and (2) as one order, and the rest relating to the transfer as another separate order.