VII. Bigamy

Bigamy is the act of entering into a marriage with one person while still legally married to another. It is a legal ground to nullify a marriage. A nullified marriage means the marriage is declared null and void, which means the marriage is treated as if it never existed.

According to section 20(1) of the Matrimonial Clause Ordinance (MCO), Cap. 179 , when at the time of marriage either party has already been lawfully married, the said marriage is void. For example, if a person marries a second time without first completing the formal steps of divorce for his/her first marriage, then his/her second marriage is nullified.

Section 18(1) of the MCO provides for the remarriage of divorced persons:

“Where a decree of divorce has been made absolute and either-

  1. there is no right of appeal against the decree absolute; or
  2. the time for appealing against the decree absolute has expired without an appeal having been brought; or
  3. an appeal against the decree absolute has been dismissed;

either party to the former marriage may marry again.”

If someone got married in Mainland China or overseas and is undergoing a divorce process, as long as the divorce process is not completed and the status of that person is not “single”, then the said person cannot get married again in Hong Kong, as the marriage would be void under section 20(1)(c) of the MCO .

Vice versa, if the party originally got married in Hong Kong but is getting married again in the Mainland or overseas, albeit undergoing divorce proceedings at the time the party gets married (assuming the proceedings are not yet completed), the said party commits bigamy, under section 45 of the Offences Against the Person Ordinance ( Cap. 212 ).

According to section 45 of the Offences Against the Person Ordinance ( Cap. 212 ), any person who, being married, marries any other person during the life of the former husband or wife shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for seven years.

VIII. Adultery

Adultery is the term used for voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse. When a married person has sexual relations with someone who is not his or her spouse, he or she commits adultery.

The only ground for divorce in Hong Kong is that “the marriage has broken down irretrievably”. According to section 11 of the Matrimonial Causes Ordinance (MCO), adultery is one of the five “facts” a party can use to prove that the marriage has broken down irretrievably, and the petitioner has to establish the fact of adultery.

Under section 11A(a) of the MCO , to establish the fact of adultery, the petitioner must show two things:

  1. the petitioner’s spouse has committed adultery, and
  2. the petitioner finds it intolerable to live with the spouse who has committed adultery.

Point (2) above is a test from the  subjective point of view of the adulterer’s spouse as to whether or not he/she finds it intolerable to live with the adulterer. The feeling of intolerance does not have to be related to the adultery: it may be a result of the adultery, but it may also relate to some other behavior of the adulterer.

Time limit

If the parties continue to live together for more than six months following the act of adultery, the petitioner will not be entitled to rely on the fact of adultery because the petitioner will not be able to show that he/she finds it intolerable to live with his/her spouse who has committed adultery.

Proof

It is not a requirement that the person who committed adultery with the respondent is identified. The petition and confession statement could state that the respondent committed adultery with a person unknown to the petitioner, or the petitioner can choose to disclose the identity of the person if the petitioner knows who that person is.

The petitioner must have certain knowledge that adultery has occurred , not only a belief that there has been adultery. The standard of proof is? “a preponderance of probability” and there is also a presumption of innocence to overcome. Whoever raises the allegation of adultery has to prove it.

IX. Cohabitation

Unmarried cohabitant couples do not have the legal status of married couples and thus do not enjoy the benefits attached to married couples, which includes tax, pension, medical and public housing benefits. The most important fact is that, regardless of how long the cohabitants have been living together, cohabitant couples are not recognized as married couples under the law. Thus, cohabitant couples fall outside the scope of the rights enjoyed by married couples.

A. Estate provision

According to the Intestate Estate Ordinance (IEO), Cap. 73 , if a person has not married his/her cohabiting partner, and his/her cohabiting partner dies intestate (without a will), he/she cannot share in the estate of his/her cohabiting partner( section 4 ). According to section 2 of the IEO , “intestate” also includes a person who leaves a will but dies intestate as to some beneficial interest in his/her estate.

However, the Inheritance (Provision for Family and Dependants) Ordinance ( Cap. 481 ) provides a way for a cohabiting partner to apply for financial provision from his/her deceased partner, even if the deceased partner leaves no will and no legal status of husband or wife exists. According to section 3(1)(b)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance , any person who has been maintained wholly or substantially by the deceased immediately before the deceased’s death can apply for financial provision from the deceased person’s estate. Therefore, if a cohabiting partner can prove that he/she has been maintained by the deceased partner, then he/she can still receive maintenance from the deceased’s estate.

B. Protection from violence in cohabitation

Hong Kong laws seek to protect cohabitants from violence in their relationships. The Domestic and Cohabitation Relationships Violence Ordinance ( Cap. 189 ) allows victims of violence, whether in marriage or cohabitation relationships, to seek legal remedies and apply for court injunctions. For example, a person may apply for a restraining order to prevent the perpetrator or abusive partner from entering or remaining in their residence: under ( Section 3B of the Domestic and Cohabitation Relationships Violence Ordinance ).

For more details about domestic violence, please read “ Domestic violence and assistance ”.

C. Parental Rights

Where unmarried cohabitants have children, the mother has all the rights and authority regarding the child’s custody and upbringing, while the natural father does not have automatic parental rights. To enjoy parental rights, the natural father must make an application for a Court Order under ( Section 3(1)(c) of the Guardianship of Minors Ordinance , Cap. 13 ).

D. Upon Separation

In the event of a breakdsown in their relationship, cohabitants do not enjoy any legal rights. In particular, the law does not provide unmarried separated couples the same rights that are enjoyed by divorced couples following the breakdown of their marriage.

X. Transsexual marriage

Transsexual persons are those who have changed from one sex to another. Normally transsexuals change their gender by undergoing a sex reassignment surgery. Following surgery, they will receive a new identity card with the new acquired gender.

According to section 40 of the Marriage Ordinance , marriage involves a voluntary union for life of one man and one woman to the exclusion of all others.

Prior to the latest Court of Final Appeal (CFA) decision in W v Registrar of Marriages , the law did not recognize a transsexual’s right to marriage.

W v Registrar of Marriages case

In this case, a post-operation male-to-female transsexual known as “W” was refused marriage to a man by the Registrar of Marriage, for the reason that “W” was biologically a male and hence not fit for the purpose of marriage to a man. “W” challenged the decision through judicial review: (i) challenging the interpretation of “female” under sections 21 and 40 of the Marriage Ordinance , and (ii) challenging the constitutionality of the Marriage Ordinance —claiming an infringement of her right to marry guaranteed by Basic Law Article 37 and Hong Kong Bill of Rights Article 19(2) . Both the Court of First Instance and the Court of Appeal ruled against W – however, the Court of First Instance suggested the government to conduct a public consultation on gender identity, sexual orientation and the specific problems and difficulties faced by transsexual people, including their right to marry.

CFA decision

In the latest and final decision of the Court of Final Appeal in 2013, the CFA declared that the meaning of “woman” and “female” includes a post-operation male-to-female transsexual person whose gender has been certified by an appropriate medical authority as having changed after sex reassignment surgery. Accordingly, the Court held that under the law “W” is entitled to be included as “a woman” under the relevant provisions of the Marriage Ordinance, and therefore is eligible to marry a man.

XI. Same-Sex Marriage / Civil partnership

Under the Hong Kong law, marriage shall be a Christian marriage or the civil equivalent of a Christian marriage. Section 40 of the Marriage Ordinance ( Cap. 181 ) states that marriage “implies a formal ceremony recognized by law as involving the voluntary union for life of  one man and one woman to the exclusion of all others “. Therefore, same-sex couples are excluded from the legal institution of marriage, along with the benefits of marriage.

Civil partnership (or same sex unions) is not recognized in Hong Kong. Under section 4 of the Marriage Reform Ordinance , marriage is defined as “the voluntary union for life of one man with one woman to the exclusion of all others…”

It is worthy to note that under the UK Civil Partnership Act of 2004, British Nationals and BNO citizens already have the right to register as civil partners, meaning Hong Kong residents holding BNO status actually possess the right to register for civil partnership under UK law. However, they cannot register for civil partnerships in Hong Kong as the HKSAR government raised “strong objections” with the British consulate-general. Therefore, despite their “citizenship”, Hong Kong people do not have the British constitutional rights within Hong Kong.

FAQ

1. Is there any age restriction for marriage in Hong Kong?

The minimum age for marriage in Hong Kong is 16. However, if either party is over 16, but still under 21, and is not a widow or widower, written consent to the marriage is required. The written consent is usually provided by a parent or guardian.

Any person, minister or civil celebrant who, knowing that a written consent from the proper person has not been obtained, marries or assists or procures any other person to marry a person under the age of 21 years who is not a widow or widower commits an offence and shall be liable to a fine and imprisonment.

For more details, please go to Matrimonial Matters > Marriage and co-habitant issues > An overview .

2. My wife is an Australian. I want her to come to Hong Kong and live with me. What do I have to do?

For spouses from overseas (other than Mainland China), if they wish to enter Hong Kong to reside, they need to apply for a dependant visa. They must show that they are dependants of their spouses who are either Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay).

The following conditions must be satisfied for a successful dependant visa application:

  • Reasonable proof of a genuine relationship between the applicant (“dependant”) and the spouse residing in Hong Kong (“sponsor”);
  • the applicant should be of clear criminal records and raise no security or criminal concerns for the HKSAR;
  • the sponsor can substantially support the dependant and provide suitable accommodation during his/her stay in Hong Kong.

For more details, please refer to Matrimonial Matters > Marriage and co-habitant issues > Marrying non-HK residents .

3. I got married in the Mainland China a few years ago but my husband has left me and disappeared. I want to marry another man in Hong Kong now. Is there any risk that I may be committing bigamy?

If you got married in Mainland China, as long as the divorce process is not completed and your status is not “single”, then you cannot get married again in Hong Kong.

Vice versa, if the party originally got married in Hong Kong but is getting married again in the Mainland or overseas, albeit undergoing divorce proceedings at the time the party gets married (assuming the proceedings are not yet completed), the said party commits bigamy.

Any person who, being married, marries any other person during the life of the former husband or wife shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for seven years.

For more about bigamy, please visit Matrimonial Matters > Marriage and co-habitant issues > Bigamy .

4. I suspect that my wife is having an affair with another man. Can this be a reason for divorce?

Adultery is one of the reasons a party can use to prove that the marriage has broken down irretrievably, which is the legal grounds for divorce in Hong Kong. You have to establish the fact of adultery. You have to show that your wife has committed adultery, and you find it intolerable to live with her. However, if you and your wife continue to live together for more than six months following the act of adultery, you will not be entitled to rely on the fact of adultery. Besides, you must have certain knowledge that adultery has occurred, not only a belief that there has been adultery.

To know more about this, please go to Matrimonial Matters > Marriage and co-habitant issues > Adultery .

5. I am a woman cohabitating with my boyfriend. We have no plans of getting married. Would this jeopardize us in the legal sense?

Unmarried cohabitant couples do not have the legal status of married couples because they do not enjoy the benefits attached to married couples, which include tax, pension, medical and public housing benefits. The most important fact is that, regardless of how long the cohabitants have been living together, cohabitant couples are not recognized as married couples under the law. Thus, cohabitant couples fall outside the scope of the rights enjoyed by many married people.

If you want to know more, please refer to Matrimonial Matters > Marriage and co-habitant issues > Cohabitation .

6. I am getting married very soon. My father is very rich and he does not trust my fiancée. He has suggested me to make a nuptial agreement with my fiancée. What is a nuptial agreement?

Agreements made between couples before or after marriage are known as nuptial agreements. Nuptial agreements are contracts, entered into by couples, which determine the rights and obligations of each of them in the event their marriage fails. Premarital agreements are drawn up and signed before marriage, while post-marital agreements are made during the marriage. Post-marital agreements can be made either while the couple is still together, or when they separate. Post-marital agreements entered into during separation are known as “separation agreements”.

The content of nuptial agreements normally include terms for

  • division of property
  • maintenance for support of a spouse
  • other financial arrangements such as trusts, company share transfers etc.

More complex agreements may arise where specific terms for a financial award result in the breakdown of the marriage.

For more about nuptial agreements, please visit Matrimonial Matters > Marriage and co-habitant issues > Nuptial agreements.

7. Do nuptial agreements have any legal status?

Nuptial agreements, other than separation agreements, are not as a general rule considered binding in the usual contractual sense in law in Hong Kong. There is no specific legislation concerning nuptial agreements, and not many court cases have addressed the topic of nuptial agreements.

However, such agreements (not being separation agreements) could be taken into account when deciding the outcome in divorce proceedings in Hong Kong courts involving ancillary relief and division of financial assets under the Matrimonial Proceedings and Property Ordinance as “circumstances of the case” or “conduct”, and may be upheld in part or in whole.

When the court needs to determine whether or not to make an order in accordance with a nuptial agreement, the question of fairness is a key issue. As ruled in an English case, nuptial agreement should be given effect (that is, enforced) if it was “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.” This principle was followed in Hong Kong.

On the other hand, according to the Matrimonial Property and Proceedings Ordinance, separation agreements (agreements entered between couples once they have separated or on the occasion of their separation) are valid contracts.

To understand more about this, please visit Matrimonial Matters > Marriage and co-habitant issues > Nuptial agreements.

I. An overview

A. The Human Reproductive Technology Ordinance

The relevant legislation is the Human Reproductive Technology Ordinance , Cap. 561 , Laws of  Hong Kong.

The Ordinance is designed to regulate reproductive technology procedures, and the use of embryos and gametes for research and other purposes; to confine the provision of reproductive technology procedures to infertile couples, subject to any express provision to the contrary in any code; and to regulate surrogacy arrangements (whereby the woman to whom it relates would be a surrogate mother if she carries a child pursuant to the arrangement).

Reproductive technology procedures are medical, surgical, obstetric or other procedures (whether or not provided to the public or a section of the public) assisting or otherwise bringing about human reproduction by artificial means, and include–

  1. in vitro fertilization;
  2. artificial insemination;
  3. the obtaining of gametes;
  4. manipulation of embryos or gametes outside the body;
  5. a procedure specified a procedure specified by the Secretary of Food by notice in Gazette to be a reproductive technology procedure; and
  6. gender selection achieved or intended to be achieved by means of a procedure which falls within this definition, but excludes a procedure specified a procedure specified by the Secretary of Food by notice in Gazette not to be a reproductive technology procedure.

The Ordinance states that no person may carry on any activity which consists of or involves–

  1. providing a reproductive technology procedure;
  2. conducting embryo research; or
  3. handling, storing or disposing of a gamete or embryo used or intended to be used in connection with a reproductive technology procedure or embryo research;

unless the person has a licence issued by the Council on Human Reproductive Technology ( section 13 and Part IV of the Human Reproductive Technology Ordinance ).

B. The Council on Human Productive Technology

The Council on Human Productive Technology was established under section 4 of the Human Reproductive Technology Ordinance to regulate the issues discussed above. It is responsible for regulating and issuing licences on reproductive technology procedures and related activities. The requirements and fees payable relating to the implementation of the licensing system are set out in the Human Reproductive Technology (Licensing) Regulation , Cap. 561A and the Human Reproductive Technology (Fees) Regulation , Cap. 561B , Laws of Hong Kong.

The Council also prepares and maintains a code of practice giving guidance about the proper conduct of any relevant activity authorized by any licence and the proper discharge of the functions of the person responsible, as well as any other persons to whom the licence applies ( sections 5 and 8 of the Human Reproductive Technology Ordinance ).

For more information about the Council on Human Productive Technology, please visit the official website .

II. Surrogacy

An important aspect of the Human Reproductive Technology Ordinance is the regulation of surrogacy arrangements.

A “surrogate mother” means a woman who carries a child–

  1. pursuant to an arrangement–
    1. made before she began to carry the child; and
    2. made with a view to any child carried pursuant to the arrangement being handed over to, and the parental rights being exercised (as far as practicable) by, another person or persons; and
  2. conceived by a reproductive technology procedure.

A person must not, for the purposes of a surrogacy arrangement, use gametes other than the gametes of two persons who are–

  1. the parties to a marriage; and
  2. the persons to whom the surrogate mother, pursuant to the arrangement, hands over any child carried and persons who will exercise parental rights over the child

( Sections 14 of the Human Reproductive Technology Ordinance )

The suitability of a woman to be a surrogate mother should be assessed by a registered medical practitioner who is not responsible for the reproductive technology procedures regarding the surrogacy, by taking into account the woman’s marital status, history of pregnancy, and physical and mental fitness to carry a baby.

Counselling must be provided by a multi-disciplinary team of the reproductive technology centre for the commissioning couple, and surrogate mother and her husband (if any) to ensure that all parties concerned understand the medical, social, legal, moral and ethical implications of surrogacy. In assessing the surrogate mother (and her husband, if any) and the commissioning couple, the welfare of the child is of paramount importance.

The assessment should take into account their physical, mental and social well-being, including the following factors:

  1. their commitment to having and bringing up a child or children;
  2. their ability to provide a stable and supportive environment for any child born as a result of surrogacy;
  3. their medical histories and the medical histories of their families;
  4. their ages and likely future ability to look after or provide for a child’s needs;
  5. their ability to meet the needs of any child or children who may be born as a result of surrogacy, including the implications of any possible multiple births or disability;
  6. any risk of harm to the child or children who may be born, including the risk of  inherited disorders, problems during pregnancy, and of neglect or abuse; and
  7. the possible attitudes of other members of the family towards the child.

A surrogate mother is not a “parent” of the child in law.

Section 12 of the Parent and Child Ordinance , Cap. 429 , Laws of Hong Kong, provides that:–

  1. The court may make an order providing for a child to be regarded in law as the child of the parties to a marriage (referred to in this section as “the husband” and “the wife”) if–
    1. the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination;
    2. the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo; and
    3. the conditions in subsections (2) to (7) are satisfied.
  2. The husband and the wife must apply for the order within six months of the birth of the child or, in the case of a child born before the commencement of this section, within six months of such commencement.
  3. At the time of the application and of the making of the order–
    1. the child’s home must be with the husband and the wife or either of them; and
    2. the husband or wife, or both of them, must-
      1. be domiciled in Hong Kong;
      2. have been habitually resident in Hong Kong throughout the immediately preceding period of one year; or
      3. have a substantial connection with Hong Kong.
  4. At the time of the making of the order both the husband and the wife must be at least 18 years old.
  5. The court must be satisfied that both the father of the child (including a person who is the father by virtue of section 10), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
  6. Subsection (5) does not require the agreement of a person who cannot be found or is incapable of giving agreement, and the agreement of the woman who carried the child is ineffective for the purposes of that subsection if given by her less than six weeks after the child’s birth.
  7. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of-
    1. the making of the order;
    2. any agreement required by subsection (5);
    3. the handing over of the child to the husband and the wife; or
    4. the making of any arrangements with a view to the making of the order,

    unless authorized or subsequently approved by the court.

  8. Subsection (1)(a) 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 or her artificial insemination.
  9. Where an order is made under subsection (1), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner as may be prescribed, of the making of that order.

For more details about surrogacy, please refer to Part XII of the Revised Code of Practice issued by the Council on Human Reproductive Technology .

III. Acts prohibited by the Human Reproductive Technology Ordinance

Section 15 of the Human Reproductive Technology Ordinance sets out prohibitions in connection with embryos, against sex selection and against the provision of reproductive technology to unmarried couples:

    1. No person shall-
      1. for the purposes of embryo research-
        1. bring about the creation of an embryo; or
        2. combine human and non-human gametes or embryos or any part thereof such as to give rise to a two-cell zygote;
      2. keep or use an embryo after the appearance of the primitive streak;
      3. place any non-human gametes or embryo or any part thereof in any human;
      4. place any human gametes or embryo or any part thereof in any animal;
      5. replace the nucleus of a cell of an embryo with a nucleus taken from any other cell; or
      6. clone any embryo.
    2. No person shall, for the purposes of a reproductive technology procedure, keep or use any fetal ovarian, or fetal testicular, tissue.
    3. No person shall, by means of a reproductive technology procedure, cause the sex of an embryo to be selected, whether directly or indirectly (including by the implantation of an embryo of a particular sex in the body of a woman), except where-–
      1. the purpose of such selection is to avoid a sex-linked genetic disease specified in Schedule 2 which may prejudice the health of the embryo (including any foetus, child or adult which may arise from the embryo); and
      2. not less than two registered medical practitioners each state in writing that such selection is for that purpose and such disease would be sufficiently severe to a person suffering it to justify such selection.
    4. For the purposes of subsection (1)(b), the primitive streak shall be taken to have appeared in an embryo not later than the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored.
    5. Subject to subsections (6), (7) and (8), no person shall provide a reproductive technology procedure to persons who are not the parties to a marriage.
    6. Without prejudice to the operation of section 14 , subsection (5) shall not apply in the case of a reproductive technology procedure provided to a person who is to be a surrogate mother where the procedure is provided pursuant to the surrogacy arrangement under which she is to be the surrogate mother.
    7. It is hereby declared that-
      1. subject to paragraph (b), subsection (5) shall not operate to prohibit the continuation of a reproductive technology procedure provided to persons who were the parties to a marriage when gametes were, or an embryo was, placed in the body of a woman pursuant to the procedure;
      2. paragraph (a) shall not operate to permit any further gametes or further embryo to be placed in the body of that woman pursuant to that procedure.
    8. Subsection (5) shall not apply in the case of ‘the obtaining of gametes

Section 16 of the Ordinance prohibits commercial dealings in prescribed substances (“prescribed substance” means ” “a gamete or embryo” or “ fetal ovarian, or fetal testicular tissue”):

    1. No person shall-
      1. whether in Hong Kong or elsewhere, make or receive any payment for the supply of, or for an offer to supply, a prescribed substance intended to be used for the purposes of any reproductive technology procedure, embryo research or surrogacy arrangement;
      2. seek to find a person willing to supply for payment a prescribed substance referred to in paragraph (a);
      3. initiate or negotiate any arrangement involving the making of any payment for the supply of, or for an offer to supply, a prescribed substance referred to in paragraph (a); or
      4. take part in the management or control of a body of persons corporate or unincorporate whose activities consist of or include the initiation or negotiation of any arrangement referred to in paragraph (c).
    2. Without prejudice to the generality of subsection (1)(b), no person shall cause to be published or distributed, or knowingly publish or distribute, an advertisement-
      1. inviting persons to supply for payment a prescribed substance referred to in subsection (1)(a) or offering to supply any such prescribed substance for payment; or
      2. indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in subsection (1)(c).

Most importantly, section 17 of the Ordinance prohibits surrogacy arrangements on a commercial basis:

  1. No person shall-
    1. whether in Hong Kong or elsewhere, make or receive any payment for-
      1. initiating or taking part in any negotiations with a view to the making of a surrogacy arrangement.
      2. offering or agreeing to negotiate the making of a surrogacy arrangement; or
      3. compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangement;
    2. seek to find a person willing to do any act which contravenes paragraph (a);
    3. take part in the management or control of a body of persons corporate or unincorporate whose activities consist of or include any act which contravenes paragraph (a); or
    4. carry out or participate in any act in furtherance of any surrogacy arrangement where he knows, or ought reasonably to know, that the arrangement is the subject of any act which contravenes paragraph (a).
  2. Without prejudice to the generality of subsection (1)(b), no person shall cause to be published or distributed, or knowingly publish or distribute, an advertisement relating to surrogacy arrangements, and whether or not the advertisement invites persons to do any act which contravenes subsection (1)(a).

A person who contravenes sections 13 , 14 , 15 , 16 or 17 commits an offence and is liable to a fine at level 4 (currently $25,000) and to imprisonment for six months on the first conviction; and on a subsequent conviction, to a fine at level 6 (currently $100,000) and to imprisonment for two years ( section 39 of the Human Reproductive Technology Ordinance ).

FAQ

1. Is surrogacy regulated in Hong Kong?

In Hong Kong, surrogacy is regulated by the Human Reproductive Technology Ordinance.

The Ordinance is designed to regulate reproductive technology procedures, and the use of embryos and gametes for research and other purposes; to confine the provision of reproductive technology procedures to infertile couples, subject to any express provision to the contrary in any code; and to regulate surrogacy arrangements (whereby the woman to whom it relates would be a surrogate mother if she carries a child pursuant to the arrangement).

The Ordinance states that no person may carry on any activity which consists of or involves:

  1. providing a reproductive technology procedure;
  2. conducting embryo research; or
  3. handling, storing or disposing of a gamete or embryo used or intended to be used in connection with a reproductive technology procedure or embryo research;

unless the person has a licence to do so.

The Council on Human Productive Technology was established to regulate the issues discussed above.

It should be noted that a surrogate mother is not a “parent” of the child in law.

For more information about the Ordinance and the Council on Human Productive Technology, please visit Matrimonial Matters > Surrogacy and artificial insemination > Overview .

2. Can any adult female be a surrogate mother?

The suitability of a woman to be a surrogate mother should be assessed by a registered medical practitioner who is not responsible for the reproductive technology procedures regarding the surrogacy, by taking into account the woman’s marital status, history of pregnancy, and physical and mental fitness to carry a baby.

Counselling must be provided by a multi-disciplinary team of the reproductive technology centre for the commissioning couple, and surrogate mother and her husband (if any) to ensure that all parties concerned understand the medical, social, legal, moral and ethical implications of surrogacy. In assessing the surrogate mother (and her husband, if any) and the commissioning couple, the welfare of the child is of paramount importance.

It should be noted that a surrogate mother is the legal mother of the child unless a parental order made by the court says otherwise.

For more details, you may refer to Matrimonial Matters > Surrogacy and artificial insemination > Surrogacy .

3. Can I pay someone to be a surrogate mother?

The Human Reproductive Technology Ordinance prohibits surrogacy arrangements on a commercial basis.

Any person must not make or receive any payments for initiating or taking part in any negotiations with a view to the making of a surrogacy arrangement; offering or agreeing to negotiate the making of a surrogacy arrangement; or compiling any information with a view to its use in making, or negotiating the making of surrogacy arrangements, whether in Hong Kong or elsewhere.

To understand more about this issue, please go to Matrimonial Matters > Surrogacy and artificial insemination > Acts prohibited by the Human Reproductive Technology Ordinance .

4. Can I choose the gender of my baby by making use of human reproductive technology?

The Human Reproductive Technology Ordinance sets out prohibitions in connection with embryos, against sex selection and against the provision of reproductive technology to unmarried couples.

No person shall, by means of a reproductive technology procedure, cause the sex of an embryo to be selected, whether directly or indirectly (including by the implantation of an embryo of a particular sex in the body of a woman), except where the purpose of such selection is to avoid a sex-linked genetic disease specified in the Ordinance which may prejudice the health of the embryo (including any foetus, child or adult which may arise from the embryo); and not less than two registered medical practitioners each state in writing that such selection is for that purpose and such disease would be sufficiently severe to a person suffering it to justify such selection.

If you want to know what other acts are prohibited by the law, please go to Matrimonial Matters > Surrogacy and artificial insemination > Acts prohibited by the Human Reproductive Technology Ordinance.