Hong Kong Ordinances

HUMAN REPRODUCTIVE TECHNOLOGY ORDINANCE - SECT 2

Interpretation

(Past version on 01/07/2002).
(Past version on 17/11/2000).

For the saving and transitional provisions relating to the amendments made by
the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph
(12) of that Resolution.

(1) In this Ordinance, unless the context otherwise requires-

"advertisement" (廣告) includes any form of advertising whether to the
public generally, to any section of the public or individually to selected
persons;

"artificial insemination" (人工授精) means a procedure under which sperm
are introduced into the vagina or uterus of a woman otherwise than by sexual
intercourse;

"authorized person" (獲授權人士) means-

   (a)  a member of the Council or of a committee; or

   (b)  a designated public officer;

"code" (守則) means a code of practice prepared and maintained under
section  8 , as in force from time to time;

"code of practice" (實務守則) includes-

   (a)  a standard;

   (b)  a specification; and

   (c)  any other documentary form of practical guidance;

"committee" (委員會) means a committee established under section 6(1) or a
provision of Schedule 1;

"Council" (管理局) means the Council on Human Reproductive Technology
established under section 4(1);

"designated public officer" (指定公職人員) means a public officer, or a
public officer belonging to a class of public officer, designated in a notice
under subsection (10);

"embryo research" (胚胎研究)-

   (a)  means any research involving the creation, use or manipulation of an
        embryo, whether or not the embryo is to be implanted into the body of
        a woman;

   (b)  includes a procedure specified in a notice under subsection

(2)(a)(i) to be embryo research;

   (c)  excludes a procedure specified in a notice under subsection

(2)(b)(i) not to be embryo research;

"function" (職能) includes a duty;

"in vitro fertilization" (體外受精)-

   (a)  means the fertilization of an egg by sperm outside the human body,
        whether or not the egg was originally removed from the body of that or
        any other woman;

   (b)  includes any procedure involving the induction or aspiration of an
        egg, or the culture of an egg for the purposes of any such
        fertilization;

"licence" (牌照) means a licence granted under section 23(1)(a);

"licensee" (持牌人), in relation to a licence, means the holder of the
licence;

"negotiate" (商議), in relation to a surrogacy arrangement, includes any bid
or offer in relation to the arrangement;

"notice" (公告、通知) means notice in writing;

"payment" (付款) means payment in money or money's worth but does not
include any payment for defraying or reimbursing-

   (a)  the cost of removing, transporting or storing an embryo or gamete to
        be supplied;

   (b)  any expenses or loss of earnings incurred by a person and attributable
        to the person supplying an embryo or gamete from the person's body;

   (c)  in the case of a surrogacy arrangement, any expenses incurred by the
        surrogate mother for-

        (i)    any reproductive technology procedure; or

        (ii)   bona fide medical expenses arising from pregnancy and delivery
               of a child born pursuant to the arrangement;

"person responsible" (負責人), in relation to a licence, means the
individual specified in the licence as the individual under whose supervision
the activities authorized by the licence shall be carried on;

"practicable" (切實可行) means reasonably practicable;

"Register A" (甲登記冊) means the register kept and maintained under
section  33 (1);

"relevant activity" (有關活動) means an activity which consists of or
involves-

   (a)  the provision of a reproductive technology procedure;

   (b)  the conducting of embryo research; or

   (c)  the 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;

"reproductive technology procedure" (生殖科技程序) means a medical,
surgical, obstetric or other procedure (whether or not it is provided to the
public or a section of the public) assisting or otherwise bringing about human
reproduction by artificial means, and includes-

   (a)  in vitro fertilization;

   (b)  artificial insemination;

   (c)  the obtaining of gametes;

   (d)  manipulation of embryos or gametes outside the body;

   (e)  a procedure specified in a notice under subsection (2)(a)(ii) to be a
        reproductive technology procedure; and

   (f)  a gender selection achieved or intended to be achieved by means of a
        procedure which falls within this definition, but excludes a procedure
        specified in a notice under subsection (2)(b)(ii) not to be a
        reproductive technology procedure;

"surrogacy arrangement" (代母安排) means an arrangement by virtue of which
a woman to whom it relates would be a surrogate mother were she to carry a
child pursuant to the arrangement;

"surrogate mother" (代母) means a woman who carries a child-

   (a)  pursuant to an arrangement-

        (i)    made before she began to carry the child; and

        (ii)   made with a view to any child carried pursuant to the
               arrangement being handed over to, and the parental rights being
               exercised

(so far as practicable) by, another person or persons; and

   (b)  conceived by a reproductive technology procedure.

(2) The Secretary for Food and Health may, by notice in the Gazette, specify a
procedure- (Amended L.N. 106 of 2002; L.N. 130 of 2007)

   (a)  to be-

        (i)    embryo research; or

        (ii)   a reproductive technology procedure;

   (b)  not to be-

        (i)    embryo research; or

        (ii)   a reproductive technology procedure, subject to such terms and
               conditions, if any, as are specified in the notice.

(3) It is hereby declared that a notice under subsection (2) is subsidiary
legislation.

(4) For the purposes of this Ordinance-

   (a)  in determining whether an arrangement is made with such a view
as is referred to in paragraph (a)(ii) of the definition of "surrogate mother"
regard may be had to the circumstances as a whole (and, in particular, where
there is a promise or understanding that any payment will or may be made to
the woman or for her benefit in respect of the carrying of any child pursuant
to the arrangement, to that promise or understanding);

   (b)  an arrangement may be regarded as made with such a view though subject
        to conditions relating to the handing over of any child;

   (c)  a woman who carries a child is to be treated for the purposes of
        paragraph (a)(i) of that definition as beginning to carry it at the
        time of the placing in her of an embryo, of an egg in the process of
        fertilization or of sperm and eggs, as the case may be, that results
        in her carrying the child.

(5) This Ordinance, so far as it governs bringing about the creation of an
embryo, applies only to bringing about the creation of an embryo outside the
human body, and in this Ordinance-

   (a)  references to embryos the creation of which was brought about in vitro
        (in their application to those where fertilization is complete) are to
        those where fertilization began outside the human body whether or not
        it was completed there; and

   (b)  references to embryos taken from a woman do not include embryos whose
        creation was brought about in vitro.

(6) This Ordinance, so far as it governs the keeping or use of an embryo,
applies only to keeping or using an embryo outside the human body.

(7) In this Ordinance, except where otherwise stated-

   (a)  embryo means a live human embryo where fertilization is complete; and

   (b)  references to an embryo include an egg in the process of
        fertilization, and, for this purpose, fertilization is not complete
        until the appearance of a 2 cell zygote.

(8) References in this Ordinance to gametes, eggs or sperm, except where
otherwise stated, are references to live human gametes, eggs or sperm, but
references to gametes or eggs do not include gametes or eggs in the process of
fertilization unless otherwise stated.

(9) References in this Ordinance to keeping, in relation to embryos or
gametes, include keeping while preserved, whether preserved by
cryopreservation or in any other way, and embryos or gametes so kept are
referred to in this Ordinance as "stored" (and "store" and "storage" shall be
construed accordingly).

(10) The Secretary for Food and Health may, by notice given to the Council,
designate a public officer, or a public officer belonging to a class of public
officer, specified in the notice to be a public officer available to assist
the Council subject to such terms and conditions, if any, as are specified in
the notice. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

(11) For the avoidance of doubt, it is hereby declared that the provisions of
the Employment Ordinance ( Cap 57) shall not operate differently between a
woman who is pregnant or confined as a result of a surrogacy arrangement (and
whether or not the surrogacy arrangement is lawful) and a woman who is
pregnant or confined otherwise than as the result of a surrogacy arrangement.

"advertisement" (廣告)

"artificial insemination" (人工授精)

"authorized person" (獲授權人士)

"code" (守則)

"code of practice" (實務守則)

"committee" (委員會)

"Council" (管理局)

"designated public officer" (指定公職人員)

"embryo research" (胚胎研究)

"function" (職能)

"in vitro fertilization" (體外受精)

"licence" (牌照)

"licensee" (持牌人)

"negotiate" (商議)

"notice" (公告、通知)

"payment" (付款)

"person responsible" (負責人)

"practicable" (切實可行)

"Register A" (甲登記冊)

"relevant activity" (有關活動)

"reproductive technology procedure" (生殖科技程序)

"surrogacy arrangement" (代母安排)

"surrogate mother" (代母)