III. Acts prohibited by the Human Reproductive Technology Ordinance

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 ).