LH v LW

Queeny Au-Yeung J in Chambers
Family Law
24 June, 8 July 2021

Facts

[Human Reproductive Technology Ordinance (Cap.561) s.17]

The applicants were a married couple. They had one child, a daughter (C) in secondary school. Not wanting C to be alone when they passed away, they wanted another child. However, the medical treatment which the wife had undergone precluded child-bearing. Wanting C and the other child to be genetically linked, they wished to resort to surrogacy. To that end, they had been in contact with a surrogacy agency abroad. They sought the court’s prior authorisation of their expenses to be incurred under their intended agreement with the surrogacy agency. They wanted such authorisation for the purpose of ensuring that such expenses were regarded as lawful and would not stand in the way of the application that they proposed eventually to make under the Parent and Child Ordinance (Cap.429) for a parental order in respect of the other child.

Held, dismissing the application, that while the applicants were acting in good faith and free from moral taint, their intended agreement with the surrogacy agency was a commercial surrogacy arrangement in breach of s.17 of the Human Reproduction Technology Ordinance (Cap.561) and the Court would therefore not accede to this application for prior authorisation of expenses, whether reasonable or non-reasonable, to be incurred under such an arrangement (FH v WB [2019] HKCFI 1748 considered).

Application

This was an application for prior authorisation of expenses to be incurred under a commercial surrogacy arrangement.


Editorial Note: The result of this application turned on the forgoing holding, but the judgment contains – and may be consulted for – much else besides on parental orders and surrogacy. Also, attention is drawn to the final paragraph of the judgment. The praiseworthy conduct of the applicants’ legal advisers commended by the Judge in that paragraph sets a worthy example.

Jurisdictions