LCQ2: Human Reproductive Technology Ordinance

     Following is a question by the Hon Cyd Ho and a reply by the Secretary for Food and Health, Dr York Chow, in the Legislative Council today (December 1):


     It has been reported that a male Hong Kong permanent resident has recently issued a press release on the triplets born to him in the United States through a surrogate mother using human reproductive technology, and brought back to Hong Kong.  It has also been reported that the man may have contravened the relating sections of the Human Reproductive Technology Ordinance (the Ordinance) (including section 16 on "Prohibition against commercial dealings in prescribed substance" and section 17 on "Prohibition against surrogacy arrangements on commercial basis, etc.").  The incident has aroused concerns in the Hong Kong community about regulation of the use of human reproductive technology, the child adoption system, and the extra-territorial jurisdiction of Hong Kong.  In this connection, will the Government inform this Council:

(a)  whether the authorities have assessed if the aforesaid surrogacy arrangement, which was extensively reported by the media, has contravened the Ordinance; if so, whether they consider this incident a suspected case of contravening the Ordinance, and whether they will initiate an investigation into the case if the incident is assessed as a suspected case; if they have assessed but have not initiated any investigation, whether they consider this incident to be a suspected case of contravening the Ordinance, and whether such practice is consistent with their general practice in dealing with other suspected cases of contravention of other criminal laws; if they have not assessed, of the reasons for that, and whether the authorities are still upholding the Ordinance and the policy of prohibiting the use of human reproductive technology on commercial basis and for economic gains;

(b)  whether the authorities will explain if the extra-territorial effect of the aforesaid section 17 will be restricted by factors such as nationality, permanent resident status, ordinary place of residence, domicile and place of occurrence of the suspected contravention, etc.; whether this provision has ever been invoked for initiating extra-territorial prosecution; whether the authorities will review if this provision can be effectively enforced outside Hong Kong in the light of this incident; and

(c)  in each of the past five years, of the respective numbers of pairs of married spouses, unmarried companions of the opposite sex, male spouses/companions of the same sex, female spouses/companions of the same sex who had applied in Hong Kong for adopting local and overseas children, the respective numbers of single men and women who had done the same, and the respective numbers of approved and rejected applications, and the reasons for rejecting those applications (please provide a breakdown by applicants' age group in the form of a table in an annex); whether the authorities will consider reviewing the restrictions on child adoption to make it easier for the applicants with a view to reducing the possibility of these applicants' resorting to commercial surrogacy arrangements; if they will, of the details; if not, the reasons for that?



     The Human Reproductive Technology Ordinance (HRTO) aims at ensuring that reproductive technology (RT) services and researches are safe and appropriate.  It seeks to ensure that human life is respected, and to safeguard the role of family, the rights of service users and the welfare of children born as a result of human reproductive technology.  The HRTO mainly regulates reproductive technology procedures and surrogacy arrangements as well as the use of embryos and gametes, and prohibits commercial dealings in substances such as gametes or embryos and surrogacy arrangements.  Through the establishment of a licensing system and formulation of a code of practice, the HRTO also regulates the use of human reproductive technology and provision of RT services.  A Council on Human Reproductive Technology, comprising members from different sectors of the community, is established under the HRTO to regulate matters related to human reproductive technology, prepare and maintain a code of practice on human reproductive technology, keep under review information about human reproductive technology and surrogacy arrangements, and provide the public with relevant information.

     My reply to the three different parts of the question is as follows:

(a)  Section 17 of the HRTO prohibits surrogacy arrangements on a commercial basis which includes, amongst the others, the following:-

firstly, make or receive any payment for any of the following three acts -

(i)  initiating or taking part in any negotiations for the making of a surrogacy arrangement;

(ii)  offering or agreeing to negotiate the making of a surrogacy arrangement; or

(iii) compiling any information for its use in making, or negotiating the making of, surrogacy arrangements;

secondly, seek to find a person willing to do any of the three acts stated above;

thirdly, cause to be published or distributed, or knowingly publish or distribute, an advertisement relating to surrogacy arrangements.

     The Ordinance was passed in 2000 after detailed deliberation and scrutiny by the Legislative Council.  Section 17 of the HRTO reflects the Administration's policy on surrogacy arrangements.

     As regards the general arrangements for law enforcement under the HRTO, on knowing that any act that may be in contravention of a criminal provision under the HRTO has taken place, the Council on Human Reproductive Technology will refer the case to the Police, as the law enforcement agency, for consideration as to whether investigation and enforcement action should be conducted.  The Department of Health will provide the relevant professional advice when needed.

     While we will not comment on individual cases reported in the media, we can confirm that referral concerning suspected surrogacy arrangements has been made to the Police for consideration as to whether investigation and law enforcement action are required.  We do not consider it appropriate to comment on the content of the case and whether there is any violation of the law, as there might be investigation, enforcement and further legal proceedings in future.

(b)  Section 17 of the HRTO should be construed against the presumption in statutory interpretation that an enactment is taken not to apply to foreigners and foreign matters both outside the territory to which it extends (section 130 of Bennion on Statutory Interpretation).  Against the background of the above presumption, section 17(1)(a) expressly prohibits the making and receiving of any payment for any of the purposes specified therein relating to surrogacy arrangement, whether the payment is made or received in Hong Kong or elsewhere.

     As records on the drafting of the provision indicated, there was discussion in the Bills Committee over a possible loophole in law enforcement in cases where payment was made or received outside Hong Kong.  Amendment was thus made to include "whether in Hong Kong or elsewhere" upon resumption of the second reading of the Bill to state clearly that even if the payment is made outside Hong Kong, the provision still applies.  This legislative intent is reflected in the current provision.

     According to our records, there has been no prosecution made under section 17 of the HRTO so far.  Since the content and nature of each individual case vary, we are not in a position to make any generalised comments on the enforcement of the provision.  For any suspected violation of the HRTO, the law enforcement authority will deal with it with prudence and seriousness, taking into account the circumstances of each case.

(c)  The main objective of adoption service is to find permanent and stable homes for children whose parents are unable or unwilling to take care of them until they reach adulthood.  When considering applications for child adoption, the prime consideration of the Social Welfare Department (SWD) and the Court is the best interests of the children rather than those of the applicants.  Upon receipt of an adoption application, social workers of the Adoption Unit of SWD will thoroughly assess whether the applicants are suitable to serve as adoptive parents.  The assessment covers the applicants' personality, life experience, parenting attitudes and capacities, adoption motivation, abilities in meeting the needs and developing the potentials of the child to be adopted, etc.  Applicants are also required to undergo a mandatory criminal record check.  The Court will determine, on the basis of the best interests of the child, whether an adoption order should be granted in respect of the application.

     To protect the children to be adopted, the Administration will not relax the requirements imposed on adoptive parents for reasons (including reducing commercial surrogacy activities) irrelevant to the best interests of these children.

     The number of applications for adopting local children handled by SWD in the past five years by married spouses, single men and women, and the number of applications approved and withdrawn by the applicants are at Annex.  SWD has not rejected any adoption applications during the period.  Since spouses/companions of the same sex are not relationships legally recognised in Hong Kong, they cannot make joint applications for adoption.  SWD does not have statistical information on the adoption applicants by age groups.

     As for applications submitted in Hong Kong for adopting overseas children, the Administration does not have the relevant information as applicants may directly submit their applications to the relevant overseas authorities without the need to file with or report to SWD.

Ends/Wednesday, December 1, 2010
Issued at HKT 15:49