According to the State of World Population 2023: 8 Billion Lives, Infinite Possibilities: the Case for Rights and Choices, released on April 19 by the United Nations Population Fund, the Hong Kong Special Administrative Region has the lowest fertility rate in the world, with the average woman giving birth to 0.8 children. The low birthrate and an aging population are flashing warning lights for the city’s future. The government needs to formulate a new population policy, as a matter of urgency, that effectively promotes childbearing by Hong Kong couples.

While childbearing is a personal choice and there are many married Hong Kong couples who do not want to raise a child or raise more than one child, there are married couples in Hong Kong who cannot give birth to children because of their physical condition. These couples need assisted reproductive healthcare services such as in vitro fertilization or surrogacy arrangements to realize their dream of becoming parents.

However, it seems that the current legal framework, as outlined by the Human Reproductive Technology Ordinance (Cap 561) (HRTO), makes lawful surrogacy arrangements in Hong Kong extremely difficult for average couples. Rather than providing a legitimate pathway for them to become the legal parents of a child born by way of surrogacy, the legislation dampens the desire of couples with fertility problems to bear children through lawful surrogacy arrangements in Hong Kong by holding up a stringent standard almost impossible to fulfill.

To start with, Sections 17 and 18 of the HRTO stipulate more than just the prohibition of surrogacy arrangements on a commercial or enforceable basis as well as advertisements relating to such commercial dealings. The HRTO makes it a crime for a person to 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 surrogacy arrangement. The UK law, by contrast, recognizes the legitimate need for the commissioning couple to bear reasonable expenses for the surrogate: You cannot pay a surrogate in the UK, except for their reasonable expenses.

The HRTO also makes it a crime for a person (such as a medical institute or a lawyer) to make or receive any payment for initiating or taking part in any negotiations with a view to the making of a surrogacy arrangement.

Under such circumstances, Section 14 of the HRTO, which allows for surrogacy arrangements on a noncommercial or unenforceable basis with gametes from married couples, operates as a narrow exception. This is evident by the fact that, while a surrogacy arrangement is one of the specified activities that can be provided under the treatment license issued by the Council on Human Reproductive Technology (the CHRT, established under Section 4 of the HRTO in April 2001), among the 12 public and 24 private healthcare institutions in Hong Kong that have been licensed to provide assisted reproductive services by the CHRT as of May 1, 2023, 16 of these institutions are treatment license-holders. Not surprisingly, none of them is allowed to provide surrogacy arrangements as a specified activity according to the government’s reply to the author’s question in last week’s Legislative Council meeting. Even though there are clear guidelines for the license holders to make it happen, the threshold is on the higher end. According to the Code of Practice formulated by the CHRT, applicant institutions that intend to provide surrogacy arrangements or holders of the relevant license must comply with a set of requirements and regulations on surrogate arrangements. In particular, Paragraph 12.2 mandates that the wife commissioning the surrogate arrangements is required to prove that there is no other practicable and feasible alternative option for her to be pregnant till term. This condition alone is not easy to prove.

Now with the resumption of border-crossing, not only will local couples benefit from Hong Kong’s efforts to develop human reproductive technology and provide surrogacy on a commercial and enforceable basis, so too will couples with fertility problems from the Chinese mainland and the rest of Asia. This will boost the local economy and strengthen Hong Kong’s status as Asia’s medical hub

Regarding the above arrangements, the Code of Practice formulated by the CHRT requires the commissioning couple, the surrogate mother (and her husband if they are married) to sign a standard consent form before such arrangements are made, demonstrating their understanding of the legal process involved in the arrangements concerned. And even with the signed consent form, the court may deny the commissioning couple’s parentage for various reasons; for example, if the court finds payment of any kind being made from the couple to the surrogate.

Indeed, for the commissioning Hong Kong couple, another hurdle is to be recognized by Hong Kong law as the child’s legal parents. Pursuant to Section 9 of the Parent and Child Ordinance (Cap 429), a woman who is pregnant as a result of surrogacy arrangements is deemed as the legal mother of the child to be born. In order to become the legal parents of the child, the commissioning couple may apply for a court order within six months of the birth of the child as stipulated in Section 12 of the HRTO. Not all “intended parents” were eventually determined by the court to be the legal parents of the babies born through surrogacy arrangements. This gives rise to another social problem, i.e., when surrogate mothers become the legal mothers of the babies whose legal parentage with “intended parents” cannot be determined by the court; who will raise the children; and who shall monitor the arrangements for the growth, welfare, etc, of such babies.

All of the above makes surrogacy in Hong Kong more of a theoretical possibility than a reality. As the population is declining and aging, it is high time to critically examine the legitimacy and modernity of the statutory framework to regulate human reproductive technology established by the HRTO, which came into being almost 23 years ago.

In the past two decades, the world has experienced tremendous changes in attitude to reproductive technology and assisted reproductive services. More economies have started to embrace modern reproductive technology to promote population growth. And more jurisdictions have begun to recognize the need for humanity in surrogacy arrangements. For example, the UK government has observed that surrogacy is becoming a more-likely option for starting a family among those who are unable to conceive a child themselves — be they heterosexual or same-sex couples in a marriage, civil partnership or living together/cohabiting, or individuals regardless of their relationship status — who explicitly support surrogacy as part of the range of assisted conception options.

In contrast, the HKSAR government exhibits a more-ambivalent attitude, whose prevailing policy stance to this day is “to neither oppose nor encourage the use of surrogacy arrangement”, as quoted from the written reply to the author’s written question raised in the Legislative Council on May 24.

The past two decades have seen the rapid advancement of reproductive technology in making healthy babies. The Guardian reported on May 9 that the first UK baby created with DNA from three people has been born after doctors performed a groundbreaking IVF procedure that aims to prevent children from inheriting incurable diseases. The technique, known as mitochondrial donation treatment (MDT), uses tissue from the eggs of healthy female donors to create IVF embryos that are free from harmful mutations their mothers carry and are likely to pass on to their children.

While other countries are actively developing and refining the human reproductive technology within a relaxed regulatory framework and a more-supportive attitude, it seems that Hong Kong is still constraining the needs for surrogacy arrangements by enforcing an ordinance made 23 years ago. The modernity of the HRTO regarding surrogacy arrangements is seriously in doubt when Hong Kong is facing a severe population decline while its population ages at an accelerating rate.

If, on the other hand, Hong Kong could adopt a more-open and supportive view on assisted reproductive services including surrogacy on a commercial basis, the city could foster a multibillion-dollar industry of assisted reproductive services based on its leading status in medical education, clinical practice and medical research.

Now with the resumption of border-crossing, not only will local couples benefit from Hong Kong’s efforts to develop human reproductive technology and provide surrogacy on a commercial and enforceable basis, so too will couples with fertility problems from the Chinese mainland and the rest of Asia. This will boost the local economy and strengthen Hong Kong’s status as Asia’s medical hub.

The author is a Hong Kong deputy to the National People’s Congress and a member of the Legislative Council.

The views do not necessarily reflect those of China Daily.