Surrogacy is an arrangement, supported by a legal agreement, where a woman (called a surrogate) agrees to become pregnant and give birth to a baby for another person or couple (called the intended parents), who will become the parents of the child.
There are two types of surrogacy: traditional surrogacy and gestational surrogacy.
In traditional surrogacy, the surrogate provides the egg which is fertilized with the intended father’s sperm (or sperm donor) via IUI or IVF. With traditional surrogacy, the baby is genetically linked to the surrogate.
In gestational surrogacy, IVF is used to create an embryo using the intended mother’s egg (or egg donor) and the intended father’s sperm (or sperm donor). The embryo is then transferred into the surrogate who carries the baby until birth. With gestational surrogacy, the surrogate has no genetic ties to the baby.
There are several medical reasons why a couple may consider surrogacy, including
• Medical problems affecting the health of the uterus including uterine shape abnormalities, septate uterus, uterine fibroids, and uterine scaring.
• Absence of a uterus, either from birth or due to a hysterectomy
• Medical conditions that make pregnancy high risk or prevent pregnancy, including diabetes, heart or blood disorders, maternal age, cancer, or certain sexually transmitted diseases
• Repeated IVF failure
Surrogacy in Hong Kong
Surrogacy is legal in Hong Kong under legislation enacted in 2007 that legally recognises surrogacy and the transfer of parental right to the intended parents. According to the Council of Human Reproductive Technology’s Code of Practice, to undergo surrogacy in Hong Kong:
• Applicants must be a married heterosexual couple
• The applicants must be the biological parents of the intended child, and cannot use an egg or sperm donor or the surrogate’s own eggs
• The wife of the couple is unable to carry a pregnancy to term and no other treatment is practicable to her
• The arrangement must be altruistic with no payment being made to the surrogate other than reimbursement for expenses. Commercial surrogacy is a criminal offence.
• The intended parents and the surrogate must be aware that the surrogacy arrangement is unenforceable under Hong Kong law. All contractual disputes will be decided by the courts.
Currently, no assisted reproduction clinics in Hong Kong has a licence for surrogacy arrangements. Hong Kong couples hoping to enter into a surrogacy arrangement can investigate cross-border options. Jurisdictions which recognise foreigners as the legal parents in surrogacy arrangements under binding contracts include some US states, some Canadian provinces, Ukraine, Georgia, Greece, and Russia. However, the laws against commercial surrogacy apply whether the surrogacy arrangement is undertaken inside or outside Hong Kong. Given the legal risks, it is recommended that couples consult with a lawyer before pursuing any surrogacy arrangement.