Correct! Wtbhotia you have well explained.
Correct! Wtbhotia you have well explained.
So as far as the HK government is concerned I believe the child is illegitimate and has no right to any HK visa or ID. The father is only legally a parent if he is married to the mother at the time of the birth.
Unless, of course, the two of you have legally adopted the child. Have you done that? (If not I imagine that even moving it across borders may be difficult due to child abduction laws in various countries.)
In India, if my information is correct, the organizer of the surrogate mother also organizes the birth certificate, showing the overseas woman as the natural mother. So the question of adoption does not arise. As the natural mother, she will approach her consulate, with the birth certificate and get the passport for the child. HK Government will give the dependant visa to the child.
Which, of course, is outright fraud and if you use the certificate for anything in Hong Kong and get caught then you're going to jail.
I think you may be a bit off with this given that, at present (there is pending legislation that might change things), the Indian Council of Medical Research guidelines on surrogacy govern surrogacy in India. Under these guidelines:
"A child born through surrogacy must be adopted by the genetic
(biological) parents unless they can establish through genetic (DNA)
fingerprinting (of which the records will be maintained in the clinic) that
the child is theirs."
Additionally,
"A child born through ART shall be presumed to be the legitimate child of
the couple, having been born in wedlock and with the consent of both
the spouses. Therefore, the child shall have a legal right to parental
support, inheritance, and all other privileges of a child born to a couple
through sexual intercourse."
http://icmr.nic.in/art/Chapter_3.pdf
So, if the proper steps are taken and one/ both parents are the biological parents of a child born via surrogacy in India, it would seem that India does view the parents as the natural parents. If this is the case and India issues a valid birth certificate recognizing the parents who donated the biological material, and not the surrogate mother as the legal parents, I don't see how HK can then turn around and claim that there is fraud if the Indian birth certificate is legally issued under Indian law. However, you are right in that it is a complex issue under both HK and international law and there are many pitfalls aside from "fraud" which I don't think is the real issue here.
Here is a recent (2011) HK Lawyer article discussing the status of surrogacy laws in HK at present:
http://www.hk-lawyer.com/InnerPages_.../0/3385/2011/2
Last edited by elliee; 31-10-2012 at 12:51 PM.
The whole thing sounds sketchy, but I don't think the Hong Kong government treats illegitimate children differently if there is a father that is recognized (not necessarily by marriage). There seems to be special rules for insemination, no time to read it atm.
http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/AC3447E37F59CE30482575EF00072FF9/$FILE/CAP_429_e_b5.pdf
Thanks for the link. From which:
Hence the OP will not be regarded as the legal mother of the child under Hong Kong law unless she goes through a legal adoption process, or if the child resulted from an egg from the OP fertilised by her husband and then implanted (rather than the husband's sperm and the egg of the Indian mother) then under Section 12 at the link above, the OP and her husband may apply to a court for them to be recognised as the legal parents.Section: 9 Meaning of "mother" where birth or pregnancy results
from medical treatment
(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm
and eggs, and no other woman, is to be regarded as the mother of the child.
(2) Subsection (1) does not apply to any child to the extent that the child is regarded by virtue of adoption as
not being the child of any person other than the adopter or adopters.
(3) Subsection (1) applies whether the woman was in Hong Kong or elsewhere at the time of the placing in her
of the embryo or the sperm and eggs.
Last edited by Gruntfuttock; 01-11-2012 at 12:02 AM.