In this final chapter, we offer some comparative analysis and tentative concluding comments. We begin with an examination of different aspects of the law and practice of advance directives (ADs) in these jurisdictions, identifying similarities and trends. With this summary of the various connections between these jurisdictions, we then offer some broader reflections on two key features common to Asian jurisdictions, the role of religion and the role of the family. We conclude with a critical examination of this emerging picture of ADs in Asia, arguing that these insights suggest that distinctive patterns of “generative accommodation” are observable as a way of aligning international consensus with localised traditions and expectations in a more nuanced account of the meeting ground between the East and the West.

Hong Kong currently lacks both a statute and local case law clarifying the legal status of advance directives, although a legislative framework has recently been proposed by the government. This chapter begins by tracing the development of advance directives in Hong Kong, leading up to the government’s legislative proposal. After a detailed discussion of this proposal, we consider the legal obstacles that must be overcome for advance directive legislation to be successfully introduced in Hong Kong, including deficiencies in mental capacity law. We then explore the local practice of advance directives, as well as the sociocultural values and influences that shape this practice, and the practical challenges in promoting wider use of advance directives in Hong Kong.

In this chapter, we provide an explication of advance directives (ADs) in a broad, international context, laying out the origins of the concept and how this is developing over time, as well as some of the conceptual and practical challenges that arise when ADs are implemented. We then put forward the two key rationales for our focus on the Asian context of advance directives and conclude with an introduction of the typology of jurisdictions that is employed in this volume.

In 2010, the Hong Kong public was shocked by media reports of Peter Lee, son of renowned tycoon Lee Shau Kee, and the triplets born to him in the United States through a surrogate mother. Surrogacy was catapulted to the forefront of public discussion. The particular controversy surrounding Peter Lee's triplets was due to multiple factors. For example, there was the fact that Peter Lee was a single father and that the triplets would thus grow up motherless, 1 as well as speculation that he had undergone sex selection to ensure that the triplets would be sons. 2 Given that the triplets had been born pursuant to a commercial surrogacy arrangement in the United States, there was also a question as to whether Peter Lee may have contravened any prohibition contained in the relevant legislation and committed an offence (discussed further below).

The following chapter aims to provide an overview of the regulation of surrogacy in Hong Kong. It begins with the general legal framework, tracing the historical development of the relevant legislation and then setting out its main provisions and prohibitions in relation to surrogacy. This is followed by an examination of the Council on Human Reproductive Technology and the Code of Practice it publishes, together with the eligibility requirements contained within. The latter half examines parenthood in Hong Kong and how it is transferred for the purposes of surrogacy arrangements.

GENERAL LEGAL FRAMEWORK

The legal framework for surrogacy in Hong Kong is largely contained within the Human Reproductive Technology Ordinance (Cap. 561) (‘HRTO’).

HISTORY OF THE HUMAN REPRODUCTIVE TECHNOLOGY ORDINANCE

Background

The historical development of the HRTO can be traced back to the 1980s. The first donor insemination service in Hong Kong was established in 1981, which led to the birth of the first baby conceived using in vitro fertilisation (‘IVF’) technology in 1986. 3 In response to these developments, the Secretary for Health and Welfare at the time set up a multidisciplinary Committee on Scientifically Assisted Human Reproduction in 1987.