Hong Kong’s failed attempt at criminalising commercial surrogacy: Tale of a flawed legislative transplant

The article examines the failure of section 17 of Hong Kong’s Human Reproductive Technology Ordinance (Cap. 561) to criminalise commercial surrogacy, despite clear legislative intent to that effect. Through an in-depth analysis of the legislative debates and a series of illustrative vignettes, it demonstrates that section 17 only renders unlawful the act of making or receiving payments for negotiations leading to a commercial surrogacy arrangement, rather than the act of entering into such an arrangement itself. Such predicament stems from a flawed process of legislative transplantation. Section 17 was modelled on section 2(1) of the United Kingdom’s Surrogacy Arrangements Act 1985, the primary aim of which was to combat the proliferation of intermediary surrogacy agencies, instead of outlawing the practice of commercial surrogacy itself. Incomplete understanding of this legislative context likely led the drafters to misjudge the Surrogacy Arrangements Act 1985 as a suitable model for transplantation into the Hong Kong context. The article underscores the importance of careful legislative transplantation, and how crucial it is that law drafters and legislators be attuned to the original intent, domestic policy, and socio-legal context of the foreign rule being considered.