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Surrogacy Shortcomings in Hong Kong

Hong Kong-based lawyer Evelyn Tsao unpacks the city’s surrogacy laws and their impact on same-sex couples.

For many couples who are struggling to conceive, surrogacy has become a promising alternative, along with other assisted reproductive technologies, such as in vitro fertilisation and intrauterine insemination. But in Hong Kong, commercial surrogacy is totally prohibited, while altruistic surrogacy (involving no compensation), is available only to married couples. 

By default, same-sex couples can’t access surrogacy legally, since Hong Kong does not recognise same-sex unions. Should they choose to arrange surrogacy regardless, they could face stiff penalties and potentially even prison time. We asked Evelyn Tsao, a partner at Patricia Ho & Associates and a member of the LGBT+ community, to unpack this issue:

Evelyn Tsao.
Lawyer Evelyn Tsao

Ariana: When did you first become interested in reproductive rights?

Evelyn Tsao: Eight years ago, I took a class on reproductive technology and the legal issues surrounding it while I was studying at Harvard. At the time, reproductive technology wasn’t as widespread in Hong Kong, so I was really interested in it… It’s something that I think a lot of people are doing, but it’s a bit hush-hush, especially for the LGBT community.

Ariana: What is the legal situation in Hong Kong? 

ET: In Hong Kong, surrogacy is legal for married heterosexual couples so long as they comply with the Human Reproductive Technology Ordinance. When obtaining a parental order, in particular, they must be able to satisfy the courts that no money or benefit (other than for expenses reasonably incurred) has been given or received in the arrangement.

Under the Human Reproductive Technology Ordinance, commercial surrogacy is illegal. It is also illegal to use donated gametes [i.e. gametes not belonging to the married couple] in a surrogacy arrangement.

This means gay male couples are excluded since the city does not recognise same-sex marriage. For a lesbian couple, it is not really a concern because usually a lesbian does not have to resort to surrogacy to have a baby. 

For gay male couples, however, it’s harder. Neither man has a womb, obviously, so they must depend on a woman to bear their child. Many male couples in Hong Kong are interested in surrogacy, but they can’t pursue it openly because of the prohibition against using donated gametes in surrogacy, even if they are in a same-sex union recognised by another country.

Ariana: So how can gay male couples have children in Hong Kong? 

ET: The legal reality is far from ideal. It is illegal for gay male couples to use donated gametes in a surrogacy arrangement, and commercial surrogacy is also dangerous grounds.

Instead of surrogacy, I’d say the other route is to adopt a child that’s not genetically related to either parent. However, it’s unclear how receptive the Social Welfare Department and the courts in Hong Kong are towards two same-sex parents adopting. The gay couple may choose to apply as single parents when adopting but, even so, they may need to wait a long time for a match because there is obviously a preference for married couples over single parents.

Ariana: What are the legal consequences if couples arrange surrogacy in Hong Kong? 

ET: If caught engaging in commercial surrogacy [except where there is court approval or authorisation] or using donated gametes, each person is liable to a fine of HK$25,000 and imprisonment for six months on the first conviction under the Human Reproductive Technology Ordinance. On a subsequent conviction, the fine increases to HK$100,000 and imprisonment for two years.  

Ariana: How common is it?

ET: There are currently no official estimates for how many LGBT+ couples in Hong Kong have had children through surrogacy. If they decide to pursue surrogacy, same-sex couples usually keep it very quiet since it’s illegal. Even though people don’t talk about it openly, I believe surrogacy is a lot more widespread than it seems. 

A lot of my gay friends, and friends of friends – particularly couples in same-sex unions – have had children through surrogacy. I think surrogacy will only become more common since it’s now easier for gay couples to get married overseas and, after marriage, some may want to raise their own children.

Ariana: Are there any risks for the child of gay parents conceived through surrogacy? 

ET: Generally, within the first six months after the child is born, at least one of the commissioning parents should seek a parental order from the court. A parental order confers permanent legal parenthood and responsibility on the commissioning parents and provides lifelong security for the child. It also removes the surrogate mother’s rights over the child. Obviously, it is paramount to a child’s best interest to have his or her parent legally defined and recognised. So gay parents and their child are hugely unprotected if left without a parental order. 

What would help the situation is for public policy to recognise that, just like heterosexual couples, same-sex couples may have the desire to start their own families and they should be allowed to enjoy family life in this way. Ultimately, the law needs to be revisited and changed to provide protection for these families.

Ariana: Is Hong Kong society becoming more accepting of same-sex families? 

ET: In general, acceptance of same-sex relationships is increasing. A recent study released in January by the Chinese University of Hong Kong’s Sexualities Research Programme found that 60 per cent of respondents supported LGBT rights in the city. 

But I can’t really comment on the general sentiment about surrogacy and adoption. Hong Kong is still so backward that we haven’t gone through the first hurdle, which is recognising same-sex marriages! 

Ariana: What can Hong Kong society do to improve awareness about LGBT+ rights? 

ET: We need to drastically revamp relevant legislation to reflect modern times. Ideally, the government should be looking at legislation from the perspectives of protecting all LGBT minorities, but it would take a lot of changes to get there.

The government rarely initiates or amends legislation to promote human rights and they usually require a ‘kick’ by the courts through judicial review or other court processes to do so. Religion plays a role too, and it’s alarming how influential the Catholic and Christian communities are when it comes to developing secular laws. I think Hong Kong is ready, it’s just that the people influencing these decisions are against it.