RE LH AND ANOTHER

RE LH AND ANOTHER

Although the Court has jurisdiction under s12(7) PCO to give prior authorization of payments, it will not authorize any payments under the intended Agency Agreement because that Agreement would constitute a commercial surrogacy in breach of s17 HRTO and is therefore illegal under Hong Kong law; illegality precludes authorization of the projected expenses and the originating summons is dismissed.

Citation
[2021] HKCFI 1998
Parties
1st Applicant: LH; 2nd Applicant: LW
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 July 2021
Case Number
HCMP707/2021
Procedural Posture
Originating Summons for Declaration/authorization Re Surrogacy Expenses / Decision (chambers)
Outcome
Originating summons dismissed
Legal Topics
Surrogacy, Parental Orders, Authorization of Expenses, Human Reproductive Technology Ordinance S17, Public Policy, Extra Territorial Effect
Source Language
EN
Family Law Reproductive Technology Law Medical Law Criminal Law Private International Law Surrogacy Parental Orders Authorization of Expenses +3 more

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Parties

LH

1st Applicant

LW

2nd Applicant

Procedural Posture

Originating Summons for Declaration/authorization Re Surrogacy Expenses / Decision (chambers)

Legal Issues

  1. 1 Whether the Court has jurisdiction to give prior authorization for expenses under section 12(7) Parent and Child Ordinance in respect of a contemplated surrogacy arrangement
  2. 2 Whether a commercial surrogacy arrangement governed by foreign law can be authorized where it breaches section 17 Human Reproductive Technology Ordinance
  3. 3 What tests apply to prior authorization of projected expenses and how they differ from retrospective approval

Ratio Decidendi

Although the Court has jurisdiction under s12(7) PCO to give prior authorization of payments, it will not authorize any payments under the intended Agency Agreement because that Agreement would constitute a commercial surrogacy in breach of s17 HRTO and is therefore illegal under Hong Kong law; illegality precludes authorization of the projected expenses and the originating summons is dismissed.

Court Disposition

Originating summons dismissed

Orders

  • Originating summons dismissed
  • No authorization for any of the projected expenses under the intended Agency Agreement (commercial surrogacy)