Episode 4 - Philip Dykes, Christina Tseng

In this episode, our Partner Lisa Wong welcomes two guests, Senior Counsel Philip Dykes and Counsel Christina Tseng, to discuss the complex issue of surrogacy and the potential legal ramifications for Hong Kong couples who choose this method of starting a family.

Lisa is part of our Family Law team while both barristers have considerable experience in handling surrogacy cases.

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Host: Lisa Wong
Director: Niall Donnelly
Producer and VO: Thomas Latter

Transcript

Lisa: Welcome Mr. Dykes and, welcome Christina, to be our guests today, for our law and more series podcast. And, before we discuss surrogacy, I think our listeners would like to know what is surrogacy and maybe Christina can give us a bit of introduction to what surrogacy is. 

Christina: Surrogacy it's actually becoming more and more common these days. And it happens when basically a couple or sometimes even individuals, placing like the embryos in another women's uterus and that you have a baby.

So a lot of times it happens when they have fertility issues or other issues. And they decided to choose that instead of given birth to their babies like themselves. So this is the area that we see that is becoming more and more common in the recent. 

Lisa: Yes. Well, we are seeing it more and more, and also we are seeing more and more problems coming out from a surrogacy arrangement and that's why we're here to talk about it just so that, listeners would know more about what surrogacy is and what kind of, things that they need to know before they decide to, make arrangements for surrogacy.

Now, before we go on, I think, listeners would be interested to know what are your connections with surrogacy and your connection with family law. Now, why don't we start with Mr. Dykes? 

Philip: Certainly. Well, my connections, surely, I assure you is purely professional. I have handled the one or two cases mainly at an advisory stage. It's not new for me. I have not practised family law for many, many, many years. I used to have a modest firm law practice when I was a Barrister in England a long, long time ago.

And that started off in an interesting way. As a very junior Barrister, you were sent to magistrates courts handling young men who couldn't keep their own bodies under control. And, it meant that I used to appear in magistrate's court on affiliation cases where, flinty hard young women caused wayward youths to be sentenced to court to fix responsibility on the youth for the maintenance of the child. Usually encouraged to do so by the social services, because the mother was a single mother relying on social benefits and the state wanted to make sure that father contributed.

But I graduated from doing that to doing modest, traditional family law work. Dealing with divorces, and, sorting out, division of resources in care and custody, but I left all that behind when I came to Hong Kong and, I had not done any kind of work like that until recently.

Lisa: Well, I think Mr. Dykes is being very modest, I know that Christina and Mr. Dykes have been doing quite a few surrogacy cases recently, and there's an appeal case, in relation to family law in Hong Kong as well that you haven't actually left that all behind.,

Philip: Yeah. Well, As I said having embarked on a few of these cases, mainly, advisory, I became first aware of surrogacy issues about 7 or 8 years ago as I had the first case advising. It's only recently they've started appearing, in the courts and I've been involved in a couple of those and it's quite clear there'll be more such cases in the future because of the growing awareness by people that surrogacy offers options that were not there before, as Christina said, in cases where there's a problem with fertility or lifestyle choices.

It's interesting to see that Hollywood, personalities make it know that they've resorted to surrogacy to have children. And this sort of enhances awareness. So yes, the reason why that came to court is because of the legislation Hong Kong, probably not being, fit for purpose. The nature of the registration in Hong Kong causes problems in surrogacy cases that are now surfacing in the courts 

Lisa: And in the cases that you've come across, what are the most common problems? 

Philip: We'll start really briefly with the Hong Kong set-up. The two pieces of legislation. So the first relates to actually the technical side of treating cases of infertility. So as to enable successful gestation, that ordinance at more than 25 years ago, the Human Reproductive Technology Ordinance, as they say, deals with the technical side of things, then the Parent-Child Ordinance deals with the consequences.

If a child has been born, pursuing surrogacy arrangements to establish, a proper, formal legal parental status, you need an order of the Parent-Child Ordinance to make it all above board. Those ordinances are showing their age and they have given rise to unpleasant surprises for some people who've embarked upon surrogacy courses and then found out later on that there are all kinds of problems in their way.

Lisa: Can you some kind of insight or details as to, what kind of problems they usually face? 

Philip: The Hong Kong law, the human reproductive ordinance applies extraterritorially, so any agreement whereby other third parties get any kind of benefit, you will not have the agreement recognized in Hong Kong. Go to the Parent-Child Ordinance and there is, again, that range from, whether or not the agreement has been altruistic or has been one of the options for commercial arrangement. There are also formal requirements that the only person that can apply would-be a husband and wife. And as you probably are aware, What with more relaxed attitudes to family structures than it might've been 25, 30 years ago, personal social units, same-sex partners, or even single people, seek to, conform to a family description of themselves. Those kinds of arrangements are not recognized by the Parent-Child ordinance and they fall outside it. So, in short, if you do not happen to have a purely altruistic surrogacy arrangement recognized under Hong Kong Law.

And conforming to a typical, family arrangement, the children born to that arrangement will not be recognized as your children, as I say, the parent or parents that have commissioned the births. And they will be in legal limbo in Hong Kong. And I've had a couple of cases dealing with that particular problem where the children who are recognized as having a basic human right to a parent to the family structure don't have that and this can crop up months or years after the children have been brought back to Hong Kong.

A typical scenario is that Hong Kong parents have resorted to surrogacy in a jurisdiction that recognizes commercial surrogacy arrangements and laws and procedures there are completely in tune with making such arrangements. They enter into an agreement which will be a commercial agreement, under the Human Reproductive Technology Ordinance, those processes a child or children are born. Under foreign law and the cases I have had have been US law, the children are recognized at birth as the children of the commissioning parents, not the birth parents.

In fact, the birth parents will be required to repudiate all parental interests in the child at birth and they then bring the children back to Hong Kong. They appear on the birth certificate as the parents of the child under US law. They will come in, for example, as US citizens on a visitor's visa, they will then stay here. The visa may be renewed and problems will then arise when, for example, they will seek to have children have a school place or exceptionally have serious medical treatment.

And, I believe the courts will be faced with more of these in the next few years until such time as legislation in Hong Kong is regularized. I say regularized because it's not a matter of uniqueness to Hong Kong, it is also a problem that's recognized in other jurisdictions where there's not perfect symmetry between the laws in country A and country B, and clever people at the Hague convention have been working for about seven, eight years trying to work out, international protocol, recognizing basic requirements for surrogacy that will be recognized between countries. But they've been at it for seven, eight years and seem no nearer to achieving a solution. So, it's not a matter of reality waiting for that to happen. I think the countries must, for themselves, address the problem and decide that the big question is, do we recognize commercial surrogacy in our own country? Because if you do that, you obviate the risk of people going overseas and bringing back children who don't have the nationality, an artificial arrangement, which can be quite fragile. Were legislation in place to properly address all these things, they would not be called for. But, in the absence of modern legislation which addresses commercial surrogacy, you have the wardship section of the Court of First Instance as a safety net, doing a job really it's not meant for. 

Lisa: Well, why do you think that we are so behind it. And also, a lot of people come back to Hong Kong with surrogate children, and they do not realize that there's a problem?

Philip: Two things. We don't have the law in Hong Kong which makes it conducive to people undergoing surrogacy treatment here. They have to go abroad. The problem is the lack of available information on the part of the government advising people of the pitfalls that can be encountered if you enter into an international surrogacy arrangement. As part of the preparation for this chat, I looked at the websites of three government websites of common law countries. 

I looked at the Australian government website to see what advice it gave to its own nationals about surrogacy. And it told them briefly what the surrogacy regimes were in Australia, but gave firm advice as to what would the consequences be overseas. I then looked at the Republic of Ireland, you might not be surprised that surrogacy is not approved there, but nonetheless the website addresses problems with surrogacy and tells Irish nationals what the problems are and what issues you may get into if you come back. 

And then finally, the United Kingdom has three or four-page information notes, running to about 50 or 60 paragraphs explaining the problems you may face if you enter into a surrogacy arrangement. 

So, I looked at the Hong Kong website with the Immigration Department. There is no mention about surrogacy. You look at the section on dependency. There's no indication that a child might not be recognized as a child that appears on your passport. So, one could wish that the Immigration Department advertise the difficulties and the potential pitfalls of entering into a surrogacy agreement and bringing children back to Hong Kong.

The government itself should look at the two ordinances I mentioned and see whether in the light of current medical developments and current social legal attitudes to the notion of family. 

I mean, when surrogacy was first developed primarily as a means of infertility in married couples. The social attitudes have changed tremendously. And you now have the concept of, single-sex relationship. A man or woman may wish to have a child with a proper legal relationship established. Single-sex couples likewise. They crop up from time to time in the courts in Hong Kong. We've had immigration cases about dependency in same-sex relationships contracted overseas, and whether or not they should be recognized. And it's unfortunate the courts do offer some kind of solution, but the courts can only offer short solutions. The only way forward in my view is to go back to the drawing board looking at these two ordinances going and see how they can be brought in.

Christina: Just a question about like, nowadays, if the child is born out of parents with Hong Kong nationality, like Chinese nationality, technically coming into Hong Kong becomes no problem, they can obtain a passport and then the ID card later. So,would that send the wrong message to these parents thinking that, oh, I'm already the parent and then, the kids already have the ID card, the permanent residency, and also the passport, we're all set. Would that actually send the wrong message? 

Philip: It's interesting that some permanent residents in Hong Kong because the basic social-political unit of Hong Kong is a permanent resident. There are some permanent residents who happen to be Chinese nationals who have the benefit of Chinese nationality law operating and we discovered in one of our cases that surrogacy issues are recognized that as a parent the person who provided as a word, genetic input into the creation of a child. So if one of the commissioning parents is a Chinese national and is also a Hong Kong permanent resident, the child will be accorded permanent resident status under the Basic Law. So you have, parental status achieved by Chinese nationality law, even though as far as the Hong Kong law is concerned there'd be no parent-child order in existence, the child's parents are still 6,000 miles away in California or whatever. It may get through life with the parent. That's probably fine but the problems will arise much further on down the road when one of the parents dies and the matter of inheritance props up. Then the question will be is the child a child of the family? And do we have any impact on, succession rights? So, this is why you really need to look at our existing legislation afresh. It's not satisfactory to have that situation.

Lisa: So really, I mean, people do not know about it, this lack of education from the government about surrogacy and they're not aware of what they need to do if they have a surrogacy arrangement arranged somewhere else. Now, why do you think there is no such education in Hong Kong? Is it because it's intentional that it should be discouraged? 

Philip: I honestly don't know, because it seems an obvious thing to do. There's no reason why the Hong Kong government should not ensure that similar advice is given. It's the kind of question that is properly raised by the Legislative Council and who knows whether or not legislative counsellors in the future will have the interest or the motivation to ask such questions.

Lisa: So with surrogacy law is very behind, compared to other jurisdictions now, I also wanted to ask for your view as to how do you see the law in relation to surrogacy itself, where is the welfare of children in these areas of legislation? It seems that it's only concerned about the rights of the parents. They are the ones who decide on whether the children should make an application for a parental order. And, it doesn't seem that the children's welfare is safeguarded by anything else apart from the decision from the parents. Now, where do you think it relates to the children's rights and how society can protect the children in this situation. 

Philip: Commercial surrogacy is a fact. There are places in the world where people are willing to be commissioned to produce children. That needs regulation because you need to ensure that the people that offer their services in this way are not exploited. And it therefore means I think recognizing commercial services as a fact. So if you don't want people going overseas and getting in all kinds of complications with foreign legal systems, the thing to do is recognize commercial surrogacy at home. And it may well be that if that's done, then you can regulate the thing properly. People will not be encouraged to go overseas. That's the way forward but at the moment you don't have symmetry at all and hence all the problems you have. 

Christina: If you do that, the law on reproductive technology also has to be changed because as of now, I think IVF is available to married couples. So if we want to change the laws on surrogacy in Hong Kong, I think the law on that part has to also be updated as well because otherwise providers for surrogacy will only be allowed for married couples, but maybe not for singles or single-sex couples.

Philip: But that's what you expect your government to tackle, to show leadership and make difficult decisions.

Lisa: Yeah. So, what kind of advice would you give to people who are thinking of getting a surrogacy arrangement?

Philip: Don't. It seems to me that if there is a real need for a couple, an individual to have a child and they make a good case for that, that can be achieved through adoption in most cases. And therefore you'll be encouraging adoption at home and you would leave surrogacy only to those cases where there are genuine infertility problems. If you do go abroad you may be able to commission a child and successfully bring it back to Hong Kong. But there would be problems in the long-term. And if there are any problems with the family. If for example, parents separate, divorce, or one dies, problems can crop up at that stage.

Lisa: So what if they can't get a parental order 

Philip: As I said before you have this rather limping substitute for parenthood by way of wardship. It's not meant to be an automatic safety net for the cases a parental order can't be made for whatever reason. But that's not a satisfactory way of going about things.

Lisa: And that when wardship is not a solution to it because it will only last until the children reach the age of 18. What about adoption? When should that come into the picture or should that come into the picture at all if they can't get parental order?

Philip: I think that adoption is the way to go. If you discover that you have a flawed legal relationship with the child that you've commissioned and brought into Hong Kong and you wish to have that properly addressed and to remove any doubts about the matter you should seek adoption of the child. 

Lisa: But there are also problems with adoption as well, yeah, getting consent. 

Philip: Well, that may not be a problem because if real parents, parents that bore the children, 6,000 miles away, they will have repudiated their interests in the child, from the outset and they're very like to sign off on an adoption order. But yes it could technically be a problem.

Lisa: And that will also need to be done as soon as possible as well, when the actual birth parents are still around because it’s always easier to find them. And also you need to do that before they reach adulthood as well. What other advice would you give to people who has already done it overseas and back in Hong Kong and they've passed the six months period to apply for a parental order and, as you said, wardship is not a permanent solution. What kind of advice would you give to them? 

Philip: Well, you seek legal advice. But it comes to a lawyer and the lawyer would say, well, look, this is a possibility for the next 15, 16 years, a child may survive in Hong Kong on the basis of one parent’s link achieved, as I say, indirectly through the provisions article 22 with the Basic Law establishing permanent residency. 

Lisa: Well, and also I think every case is different. I mean, whoever has got themselves into the situation. They should seek legal advice. 

Philip: They should have sought legal advice before they got into this thing. 

Christina: When do you think a law will be reformed in Hong Kong? 10 years, 20? What's your hope? 

Philip: I do not entertain hopes of innovation in legal matters like this, clearly not a priority. Let's say, you would hope the assembly would make a noise about it in the Legislative Council, or I'm afraid we get a court case that gets to the Court of Final Appeal where it all blows up, but that's not the way you should be making laws. Because this is a present and existing problem. It needs addressing now, not as a quick response to a headline in a newspaper caused by a court case 

Lisa: Well, I think we covered most of the stuff that we want to cover today and, I really want to thank you Mr. Dykes and Christina, to be here today to share your experience and your views. 

Philip: It's nice to have had the opportunity to get it off my chest. 

Lisa: I think we all are, thank you very much. Thank you.