Why have the Hong Kong family courts effectively been cut out from the regulation of surrogacy cases – particularly in connection with the making of parental orders? Are Hong Kong surrogacy lawyers and their clients at risk of committing criminal offences in contravention of s. 17 Human Reproduction Technology Ordinance, Cap. 561?
Hong Kong surrogacy law is complex. It differs in a number of material respects from UK law, particularly on the question surrounding payments for the negotiating of surrogacy arrangements and the criminal penalties which might follow. A major issue is that regulation is considerably stiffer in Hong Kong than in the UK.
The three key pieces of legislation of relevance are the UK Surrogacy Arrangements Act 1985 (‘SA Act’) and the Hong Kong Human Reproduction Technology Ordinance, Cap. 561 (‘HRTO’) and the Parent and Child Ordinance, Cap. 429 (‘PCO’).
Surrogacy has virtually been driven underground in Hong Kong. This is illustrated by the fact that (a) according to the latest list dated 12 April 2018 published by the Hong Kong Council on Reproductive Technology, none of the seventeen fertility clinics licensed to carry out assisted reproductive technology treatment in Hong Kong is currently licensed to provide “surrogacy arrangement” treatment under the HRTO and (b) in the 25 years since 1993, when the legislation in Hong Kong which provides for the making of parental orders pursuant to s. 12 PCO came into force, it is estimated, staggeringly, that only a handful of parental orders have ever been made in Hong Kong. A parental order is a court order which makes the intended parents (‘Ips’) the legal parents of a child born through surrogacy arrangements and permanently extinguishes the parenthood of the surrogate mother and (if applicable) her spouse.
In the UK, in stark contrast, hundreds of parental orders are made every year. A vital factor is that the parental order framework and procedure ensures that the UK court oversees surrogacy arrangements and it is an important mechanism to ensure that the arrangements for the welfare of the children are satisfactory. The framework also serves as a useful tool to protect against and deter child trafficking. Essentially the same important framework exists in Hong Kong in the procedure for the making of parental orders – but as we have seen it has rarely ever been deployed.
Why have so few parental orders been made in Hong Kong resulting in many children in Hong Kong falling outside the safety net and protection of the Hong Kong family court? One answer has to be the over-restrictive and counter-productive rules in Hong Kong - which do not exist in UK law - and in particular the straight-jacket of s. 17(1)(d) HRTO which makes it a criminal offence for Ips and lawyers from making applications for parental orders when the Ips have for instance made payments of any amount to agents or middle men in any part of the world for the purposes of locating a surrogate mother at the outset of the process in contravention of s. 17(1)(a) HRTO.
Section 17(1) of the HRTO states:
No person shall –
a) whether in Hong Kong or elsewhere, make or receive any payment for –
i) initiating or taking part in any negotiations with a view to the making of a surrogacy arrangement;
ii) offering or agreeing to negotiate the making of a surrogacy arrangement; or
iii) compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;
b) seek to find a person willing to do any act which contravenes paragraph (a);
c) take part in the management or control of a body of persons corporate or unincorporate whose activities consist of or include any act which contravenes paragraph (a); or
d) carry out or participate in any act in furtherance of any surrogacy arrangement where he knows, or ought reasonably to know, that the arrangement is the subject of any act which contravenes paragraph (a).
We have to face the reality of the situation. It is clear that in the overwhelming majority of cases where Hong Kong resident Ips are engaging in surrogacy arrangements at home or abroad, contravention of s. 17(1)(a) involving illegal payments to agents is probably going to be unavoidable if they are to locate a surrogate mother who is prepared to carry a child for them through a surrogacy arrangement. As the author warned in his article in the Family Law Journal, “Avoiding the Pitfalls” in November 2001 (Fam.L.J. 2001, 11 (Nov), 8-11), “the desperation to have a child sometimes outweighs all other considerations”.
UK surrogacy law, in contrast, provides a more realistic and pragmatic framework. UK resident Ips or surrogate mothers do not commit a criminal offence by making payments to agents or middle men under UK law and they are consequently not committing a criminal offence simply by making an application for a parental order in contrast to the situation in Hong Kong where they would be committing a criminal offence.
It is of concern that some family law and also medical practitioners in Hong Kong are unaware of s. 17 HRTO and the definition of “payment” in s. 2(1) HRTO and assume that the law is exactly the same in Hong Kong as it is in the UK. It is not.
The author raised the issue of potential criminal liability of lawyers whilst speaking at several conferences globally since 2015 and of the potential criminal liability of Ips recently on BBC World News on 21 February 2018.
Where is the confusion? Some more detail
The SA Act only creates criminal liability on any commercial surrogacy arrangement which took place within the UK. The HRTO creates criminal liability anywhere in the world.
The SA Act only intends to outlaw agencies and middle men in the negotiation of surrogacy arrangements on a commercial basis – not Ips or Surrogate mothers.
The Ips and the surrogate mother are not criminally liable in the UK even if the payments had been made in the UK by virtue of s. 2(2) of SA Act.
The s. 2(2) SA Act provision is absent in the HRTO. This means that in contrast to UK law, Ips and surrogate mothers residing in Hong Kong are likely to be criminally liable under the HRTO which seeks to prohibit all commercial surrogacy payments made in Hong Kong or elsewhere – with the exception of certain payments made predominantly in connection with the payment for medical procedures and certain expenses incurred by the surrogate mother.
The HRTO also creates further criminal offences which do not appear in the SA Act.
In particular, s. 17(1)(d) HRTO prohibits anyone from carrying out or participating in any act “in furtherance of any surrogacy arrangement” where “he knows, or ought reasonably to know”, that the arrangement for example involved illegal payments being made to an agency for the purposes of finding a surrogate mother - which extends the scope of criminal liability to cover persons who are not in any way involved in the making/negotiation of the commercial surrogacy arrangement itself – for example to lawyers and other third parties who are advising and assisting with an application for a parental order in Hong Kong.
Criminal liability in the UK (under the SA Act) and Hong Kong (under the HRTO) for setting up commercial surrogacy arrangements must not be confused with the rules governing the lawful payment of expenses (including medical expenses) to the surrogate mother in connection with the procedure involved in the making of parental orders under s. 12 PCO which are allowable in both jurisdictions.
The meaning of “payment” referred to in s. 17 HRTO is defined in s. 2(1) HRTO: s. 2(1) sets out - as referred to above - certain payments which are exempted from being treated as an illegal “payment” under s. 17 (and therefore allowable) - for example payments made to the surrogate mother for any reproductive technological procedure or bona fide medical expenses.
It should be stressed that payments for example made to agents at the time the surrogacy arrangement was being negotiated for the purposes of locating the surrogate mother are not included as exempted payments in s2(1) HRTO.
Section 2(1) HRTO defining “payment” in full is as follows:
Payment in money or money’s worth but does not include any payment for defraying or reimbursing -
(a) the cost of removing, transporting or storing an embryo or gamete to be supplied;
(b) any expenses or loss of earnings incurred by a person and attributable to the person supplying an embryo or gamete from the person’s body;
(c) in the case of a surrogacy arrangement, any expenses incurred by the surrogate mother for -
i) any reproductive technology procedure; or
ii) bona fide medical expenses arising from pregnancy and delivery of a child born pursuant to the arrangement.
Some legal practitioners in Hong Kong appear to be misinterpreting the words, “unless authorised or subsequently approved by the court” set out in s. 12(7) PCO as an indication that the court has power to authorise all payments of whatever nature (including payments to agents) retrospectively and are ignoring s. 17 HRTO completely. This is wrong: as is clear from s. 2(1) HRTO, s. 12(7)PCO does not override s. 17 HRTO. The criminal offence and liability remains.
Section 12(7) is only relevant in any event to payments made by or received by the Ips post-birth and well after the surrogacy arrangement was negotiated in the context of the “making of the” parental “order” so that, for example, the court can ascertain whether or not there was any financial inducement paid for the benefit of the surrogate mother and/or her husband in return for their co-operation in providing the necessary consent for the “making of the” parental “order”. Exactly the same provision exists in the UK legislation under s. 54(8) of the Human Fertilisation and Embryology Act 2008, where, as in Hong Kong, the court has jurisdiction retrospectively to authorise payments or expenses in the context of the “making of the” parental “order”.
Expert opinion from Hong Kong criminal specialists on the interpretation of s17 HRTO
In 2016, because of his concern that s. 17 HRTO was continuing to be overlooked by practitioners, the author through his firm instructed Hong Kong leading counsel specialising in criminal law specifically to advise on the “potential criminal liability of a legal practitioner in Hong Kong who is aware that money has been illegally paid to an agent to find a surrogate mother and who furthers the surrogacy arrangement by, for example, advising the client in connection with a parental order” (‘the Scenario’).
The Advice dated 18 November 2016 analyses in detail what “in furtherance of a surrogacy arrangement” under s. 17(1)(d) HRTO means including whether the act of “advising the client in connection with a parental order” is an act in furtherance of the surrogacy arrangement and what “knew or ought reasonably to know” means in this context.
In the Advice a clear view was set out that in the Scenario provided: “the practitioner ought reasonably to know that there are acts which contravene s. 17(1)(a) of the HRTO”.
The Advice also confirmed: “it is likely that the legal practitioner in the Scenario risks being criminally liable (either as a principal or as a culpable aider, abettor, counsellor or procurer) under s. 17(1)(d) if he, aware that money has been illegally paid to an agent to find a surrogate mother, proceeds to advise the client in connection with a parental order”.
Surrogacy case law in Hong Kong?
There are only two reported cases: D (Parental Order: s. 12 Parental and Child Ordinance (Cap. 429))  HKEC 1948 and S v. J (Surrogacy: Wardship)  HKEC 1998.
The D case concerns an application for transfer to the High Court in a case where the parties were applying for a parental order. The judgment refers to s. 17 HRTO and the fact that, “s. 12 PCO allows expenses reasonably incurred or otherwise “authorized or subsequently approved by the court”” (paragraph 24). That statement in the author’s view is possibly being erroneously interpreted by some practitioners in Hong Kong as an indication that the court in Hong Kong can retrospectively authorise ALL payments made, even, for example, payments made to agents for the purposes of locating a surrogate mother contrary to s. 17(1)(a) HRTO.
In the S v. J (Surrogacy: Wardship) case, the Ips (a husband and wife) were in dispute over an application for a parental order. Two children had been born to two separate surrogate mothers in India on the same day on 7 September 2013. The wife refused to join the husband’s application for a parental order. The Director of Immigration intervened in the case. The Official Solicitor assisted as Amicus. The judge criticised the wife and ordered the wife to pay the costs of the hearing (paragraph 44) which, with the involvement of two leading counsel, would have been substantial. The judge stated, “Despite all the time given to her, the Wife apparently did not understand the significance of getting a parental order. She had declined legal aid…”
But no mention is made in the judgment about whether or not payments had been made at the outset to any middlemen for the purpose of locating either or both surrogate mothers. Indeed, surprisingly, it does not refer to s. 17 HRTO or the HRTO anywhere at all.
Key warnings for Hong Kong resident Ips and/or surrogate mothers and legal practitioners
Practitioners should warn all clients (including surrogate mothers and Ips) that they should not make any payment at all to any surrogacy agent/or third party anywhere in the world including for the purpose of locating a surrogate mother and they should first obtain legal advice in Hong Kong from a surrogacy expert before starting any treatment.
1) They should also warn all clients that a Hong Kong lawyer will not be able to provide any legal advice at all if any such payment has been made to an agent/third party anywhere in the world - otherwise he will be likely to be furthering an illegal surrogacy arrangement under Hong Kong law contrary to s. 17(1)(d) HRTO.
2) The first question a practitioner in Hong Kong should ask if he is requested to advise on surrogacy issues is whether or not any money has been paid anywhere in the world in contravention of s. 17 HRTO including for the purposes of locating a surrogate mother. He should not turn a blind eye or avoid asking questions about payments: that will not work because he is likely to be caught by the “ought reasonably to know” provision in s. 17(1)(d) HRTO.
3) If the answer is in the affirmative, then he will not be able to advise any further at all. It is immaterial whether the Hong Kong lawyer does not charge a fee or he advises outside the jurisdiction, as he will still be likely to be in contravention of s. 17(1)(d) HRTO. It is essential not to confuse the provision in s. 17(1)(d) HRTO with s. 2(1) SA Act where the UK lawyer does not commit an offence if he does not charge a fee.
Need for reform
Surrogacy law in Hong Kong is not working. The HRTO – and particularly s. 17 – is in need of review and reform. Article 20 of the Bill of Rights Ordinance, Cap 383 states: “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” It is the author’s view that the provision of a parental order is such a “measure of protection” and a right for every child born through surrogacy arrangements and residing in Hong Kong. The IBA Family Committee might well intervene in a future case involving a parental order to ensure that the rights of the child are brought to the fore.