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 .

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 .

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. 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. 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 ).