Surrogacy Declaration (Hong Kong)

A Surrogacy Declaration in Hong Kong records the information the relevant body requires to process the matter.

The legal position established by Hong Kong common law and the Parent and Child Ordinance (Cap. 429) is that the woman who gives birth to the child is the birth mother and therefore the legal mother, regardless of genetic connection. Where the surrogate is married, her husband is presumed to be the legal father. Intended parents — even where both are the genetic parents through IVF — acquire no automatic legal parentage and must pursue adoption proceedings under the Adoption Ordinance (Cap. 290) or seek a parens patriae order from the Court of First Instance to obtain recognised parental status.

A Surrogacy Declaration fulfils several important practical functions within this legal framework. First, it provides a contemporaneous record of the parties’ mutual understanding at the time the arrangement was entered into, which courts in Hong Kong have regard to when determining the circumstances and intentions behind a surrogacy. Second, it sets out the financial and medical framework of the arrangement, helping to distinguish altruistic surrogacy from commercial surrogacy — a distinction that is relevant to whether a court will look favourably on a subsequent adoption application. Third, it records the surrogate’s pre-birth intention to relinquish care of the child, which forms Part of the evidential picture in adoption proceedings.

The declaration does not guarantee any outcome in subsequent legal proceedings. The Court of First Instance, the District Court, and the Director of Social Welfare all apply the welfare of the child as the paramount consideration under the Guardianship of Minors Ordinance (Cap. 13), not the parties’ contractual intentions. The surrogate retains the legal right to change her mind and refuse to relinquish the child, and no court order can be obtained in advance to compel relinquishment.

Surrogacy arrangements in Hong Kong are almost always conducted on an altruistic basis. Payments to the surrogate should be limited to genuine reimbursement of out-of-pocket expenses — medical fees, maternity clothing, loss of earnings during pregnancy and recovery, travel costs, and legal and counselling fees. Any payment that could be characterised as a fee or profit for the surrogate risks being treated as a commercial arrangement, which may affect the court’s exercise of discretion in adoption proceedings.

Both gestational surrogacy — where the surrogate carries an embryo created from the intended parents’ genetic material or donor gametes and has no genetic connection to the child — and traditional surrogacy — where the surrogate’s own egg is used — are encountered in Hong Kong practice, though gestational surrogacy is far more common. The declaration should state clearly which type of arrangement is involved, as this affects the medical protocol, the IVF clinic’s documentation, and the strength of the intended parents’ claim to genetic parentage.

All parties to a surrogacy arrangement in Hong Kong should obtain independent legal advice from solicitors experienced in family and reproductive law before signing any documentation. Both parties should also undergo counselling with a qualified counsellor, and written confirmation of counselling should be retained. The Surrogacy Declaration should be treated as the foundational document from which all subsequent legal steps proceed, including the engagement of fertility clinics, the preparation of medical consent forms, and the eventual filing of adoption or parens patriae applications before the courts.

A Surrogacy Declaration in Hong Kong is needed at the outset of any surrogacy arrangement, before embryo transfer or any medical procedure is undertaken, so that the parties’ intentions and agreed framework are documented from the earliest possible point.

Intended parents who are unable to conceive or carry a pregnancy require a surrogate to carry the child. Before proceeding to IVF clinics such as those affiliated with the Hong Kong Centre for Reproductive Medicine or private fertility centres, and before any embryo transfer is scheduled, the parties should execute a Surrogacy Declaration recording their intentions, financial terms, and understanding of the legal position.

Where one or both intended parents are not the genetic parents — for example, where donor eggs or donor sperm are used — the declaration should specify the genetic composition of the embryo, as this will be relevant to the intended parents’ application for adoption.

International surrogacy arrangements involving Hong Kong residents who travel to a surrogacy-permitting jurisdiction such as the United States, Georgia, or Ukraine require a declaration that addresses cross-border legal complexities, including the child’s nationality, right of abode in Hong Kong, and the effect of any foreign court order on Hong Kong proceedings.

Same-sex couples and single intended parents in Hong Kong face additional procedural considerations, as Hong Kong adoption law under the Adoption Ordinance (Cap. 290) contains eligibility criteria that may affect their ability to adopt. A Surrogacy Declaration documenting the arrangement from inception provides the most complete possible record for the court.

The declaration is also needed when a fertility clinic, IVF centre, or hospital requests written evidence of the parties’ intentions and consent arrangements before commencing treatment. Many clinics in Hong Kong require a written surrogacy agreement or declaration as Part of their clinical governance procedures.

Finally, where a dispute arises between the intended parents and the surrogate — over expenses, medical decisions, or the surrogate’s intention to keep the child — the declaration provides the closest thing available to a baseline record of the original agreed position. While not enforceable, it is the primary documentary reference point for any mediator, solicitor, or court dealing with the dispute.

The legal process for intended parents in Hong Kong proceeds under Section 5 and Section 12 of the Adoption Ordinance (Cap. 290), which set out who may apply to adopt and the powers of the Director of Social Welfare to conduct assessments. Section 20 of the Adoption Ordinance empowers the Court of First Instance and the District Court to make adoption orders. Section 3 of the Guardianship of Minors Ordinance (Cap. 13) requires all courts, including the Court of First Instance, to treat the welfare of the child as the paramount consideration. For overseas surrogacy cases, Section 2AA of the Immigration Ordinance (Cap. 115) governs right of abode, and the Director of Immigration has discretion under Section 11 to grant entry permits. The High Court exercises parens patriae jurisdiction under the inherent jurisdiction of the Court of First Instance to protect children within Hong Kong.

A Surrogacy Declaration in Hong Kong should address the following key elements to provide a complete and legally useful record of the arrangement.

Party Identification: Full legal names, Hong Kong Identity Card numbers or passport numbers, and residential addresses of the intended parents and the surrogate. Where the surrogate has a spouse or civil partner, their details should also be recorded, as the spouse is presumed under the Parent and Child Ordinance (Cap. 429) to be the legal father of any child born during the marriage under Hong Kong common law.

Type of Surrogacy: A clear statement of whether the arrangement is gestational surrogacy — embryo created from the intended parents' material or donor gametes, with no genetic connection to the surrogate — or traditional surrogacy, where the surrogate's own egg is fertilised. The relevant IVF clinic or fertility centre should be named, together with the treating clinician's details.

Legal Acknowledgement: Confirmation that both parties understand the declaration is not a legally enforceable contract; that the surrogate is the birth mother and legal mother under Hong Kong common law; that the Parent and Child Ordinance (Cap. 429) applies; and that legal parentage for the intended parents requires adoption under the Adoption Ordinance (Cap. 290) or a parens patriae order from the Court of First Instance.

Financial Arrangements: A schedule of the expenses the intended parents agree to reimburse, including medical and IVF costs, maternity clothing, loss of earnings, travel, legal fees, and counselling. The declaration should confirm that no profit or fee element is included and that the arrangement is altruistic in nature, consistent with the approach taken in adoption proceedings before the Court of First Instance and the District Court.

Medical and Clinical Framework: Reference to the IVF clinic or fertility centre, the embryo transfer protocol, prenatal care arrangements, the hospital or maternity unit where delivery will take place, and consent to medical treatment during the pregnancy. Many Hong Kong fertility clinics require a written declaration or agreement as Part of clinical governance procedures before commencing treatment.

Post-Birth Intentions: The surrogate's stated intention to relinquish care of the child to the intended parents following birth and to cooperate fully with birth registration correction, adoption proceedings, and any immigration steps required by the Immigration Department under the Immigration Ordinance (Cap. 115).

Counselling Confirmation: A statement that all parties have received independent counselling from a qualified counsellor prior to signing, with the counsellor's name and date of counselling recorded. Counselling is strongly recommended by family law practitioners in Hong Kong and is regarded as essential evidence for any subsequent court proceedings.

Confidentiality: Agreed terms on the extent to which the arrangement is to remain confidential and circumstances in which disclosure may be required — for example, in adoption proceedings before the court or in immigration applications to the Director of Immigration.

Independent Legal Advice: Confirmation that each party has received independent legal advice from separate solicitors, with the solicitors' names recorded. The forms-legal.com Surrogacy Declaration template provides a structured starting point, but the completed document should be reviewed by each party's own solicitor before signing.

Signatures and Witnessing: Signatures of all parties, each witnessed by an independent adult witness, together with the date and place of signing. Related documents such as a Child Custody Agreement, Guardianship Application, and Medical Consent Form may be required in subsequent proceedings before the District Court or Court of First Instance.

Statutory Context: The declaration operates under Section 3 of the Parent and Child Ordinance (Cap. 429) on presumptions of parentage, Section 5 of the Adoption Ordinance (Cap. 290) on who may apply to adopt, and Section 6 on consent requirements. The Director of Social Welfare, the High Court, the District Court, and the Court of First Instance all have roles in the process of transferring legal parentage. The Guardianship of Minors Ordinance (Cap. 13), Section 3, establishes the welfare of the child as the paramount consideration in all proceedings. Immigration matters are governed by Section 2 of the Immigration Ordinance (Cap. 115).