Hong Kong protestors are fighting for their freedom, but that’s not the only story out of Hong Kong right now. Since the early 1990s, Hong Kong has had intimidating legislation in place that criminalizes any involvement in a surrogacy arrangement where negotiation payments to locate or hire a surrogate are made at the outset. It doesn’t matter whether the surrogacy happens in Hong Kong or elsewhere in the world. The language is broad, and pretty much sucks everyone in -– the surrogate, the intended parents, agencies and other intermediaries, and, yes, even attorneys!
Recently, a Hong Kong court had two surrogacy cases before it, testing the true intent and enforcement of the law. The cases are familiar stories. In the “FH Case,” a married heterosexual couple had two children but very much hoped for another child. The couple were both U.S. citizens, but maintained permanent residency in Hong Kong. Due to medical concerns, the wife was unable to carry another pregnancy, and the couple looked to surrogacy options in the United States. Using a surrogacy agency—which is common in America—the couple was matched with a California surrogate, who successfully carried twins, genetically related to both intended parents, for the couple. The intended parents’ names were listed on the U.S. birth certificates for the children, and the family soon traveled home to Hong Kong with the children on dependent visas. All things considered, it was a pretty normal surrogacy journey.
Happy ending right? Oh, not in my column. The couple realized they had an issue only when, almost two years later, they traveled back home with their children after a trip. The couple was open and truthful with the Hong Kong immigration officials as to the circumstances of the children’s conception, and they were informed that they needed to petition the Hong Kong courts for parental recognition.
Some Major Problems.
- The Parentage Application Is Time Barred. Unfortunately, they were walking into a sticky situation. Hong Kong’s Parent and Child Ordinance (PCO), Cap 429, s. 12 — under which they needed to petition to be named the legal parents of their children under Hong Kong law — required them to file a petition within six months of birth.
- The Compensated Arrangement = A Criminal Offense. The other not-so-inconsequential problem was that under the Hong Kong Human Reproduction Technology Ordinance (HRTO), Cap. 561, s. 17m, it is a criminal offense to pay money to an agency for the purposes of locating or hiring a surrogate — whether in Hong Kong or elsewhere. Uh … oops. Under their California arrangement, the intended parents had paid all the usual U.S. surrogacy negotiation fees and, therefore, committed a criminal offense.
- The Attorney May Also Be Committing A Crime! To make matters worse, if an attorney assists with the arrangement — you know, like helping the intended parents apply to the courts to be recognized as the legal parents as they are being told to do -– the attorney could also be caught by the criminal statute because the arrangement involved payment to an agency that set up the surrogacy arrangement! Fortunately for the parents, at least one BigLaw firm — my own alma mater Sidley Austin (along with Michelle and Barack Obama’s) — did not shy away from the challenge.
Think Of The Child! The court ruled that the best interests and welfare of the children must be paramount; and, therefore, the legislature could not have truly meant to ban those who missed the six-month deadline from being recognized as parents. Such a result would penalize innocent children. The court analyzed the importance of parental recognition in Hong Kong — including the usual rights such as inheritance, as well as the ability to register the children for kindergarten. The court ruled that the six-month requirement could be overlooked, and that the court could, and did, find a legal parent-child relationship, despite a late application.
What about those illegal payments? Well, in good news, the criminal statute has a six-month statute of limitations for prosecution. So, when they missed the six-month window to apply for parentage, the intended parents had also made it through the six-month window where they could have been criminally prosecuted. And while the Court waived the six-month requirement for a petition for parentage, it did not suggest that such a waiver was likely to also be given for prosecutors coming after intended parents, surrogates, or attorneys. After detailing the expenses paid by the intended parents, the court went on to authorize the expenses –- totaling over $108,000 in U.S. dollars — after the fact, as permitted by the statute.
What’s An Attorney To Do? I spoke with Marcus Dearle, a Hong Kong-based attorney with Bryan Cave Leighton Paisner and an expert in the area. Dearle explained that because of the original possibility of criminal sanctions, prior to this ruling, the compliance team at his firm would not have allowed him to represent intended parents in such a case. A major difficulty, he says, was that many lawyers in Hong Kong wrongly assumed that the restrictions in Hong Kong would be exactly the same as the UK, and were unaware of the restrictions against them which did not exist at all under UK law. Now, he and fellow assisted reproductive technology specialists are feeling more confident that they will not be subject to prosecution as a result of these judgments, and likely able to help similarly situated intended parents. Although Dearle notes he would first seek a Directions Order from the court as to a surrogacy representation involving payments made at the outset — but, now, he is cautiously optimistic that such an application would go favorably. He highlights the confusion about compensation generally that so often occurs — and that it’s perfectly legal to compensate the surrogate. It’s the original payments to agents when the surrogacy arrangement is negotiated that cause the problems.
A Second Positive Ruling. In confirmation of the Court’s new lenient stance, there was a second ruling in the past few months where the same judge once again disregarded the six-month petition deadline and retroactively authorized the payments in a compensated surrogacy arrangement. Throwing in a couple of other variables, this time the children were born in China, the embryos were formed with donor eggs, and the surrogate’s husband, curiously, did not even know about the pregnancy. Wait [record scratch], what was that last thing? I’m sure there is a story there -– but, sadly for us, the court did not go into it.
These rulings are good news all around: good news for FH and his family, good news for future surrogacy-assisted families, and great news for everyone now that attorneys have more leeway to provide legal guidance in Hong Kong without risking prison time.
For more information on best surrogacy practices when dealing with parties in Hong Kong, stay tuned for Dearle’s upcoming article in Legally Speaking, including his top ten tips for reducing the legal risk of surrogacy as it pertains to Hong Kong law.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.