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Hong Kong Succession Guide – What Happens to Hong Kong Assets When a Mainland Entrepreneur Passes Away

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When a mainland Chinese entrepreneur dies, leaving assets in the Hong Kong SAR, the assets do not automatically transfer to family members. The Hong Kong SAR has its own legal system and probate process, which must be followed before assets can be accessed or distributed to the deceased’s heirs. This article briefly explains the Hong Kong SAR legal process to distribute a deceased’s assets.

First step: Are there assets in Hong Kong?

The first step would be to determine which assets fall within the legal jurisdiction of the Hong Kong SAR. These assets may include bank accounts held with Hong Kong banking institutions, shares held in Hong Kong companies, real property (real estate) held in Hong Kong and/or securities traded on the Hong Kong Stock Exchange. The administration of the above types of assets would be dealt with through the Hong Kong court process and Hong Kong law will generally govern Hong Kong real estate, regardless of the deceased’s nationality or place of residence.

The legal authority to deal with the deceased’s Hong Kong assets is granted by the High Court of Hong Kong either in the form of a grant of probate (if the deceased left a valid will naming an executor who is willing to act) or a type of letters of administration, if the deceased left no will, the will is invalid or no executor is able to act.

Did the deceased leave a will?

If the deceased left a will, the Hong Kong court will need to decide whether the will is valid under Hong Kong law and whether it covers Hong Kong assets. Hong Kong recognises wills executed in accordance with the law of the place of execution or the deceased’s domicile. If the will was executed in the People’s Republic of China (“PRC”), issues that sometimes arise include the differences in formal requirements between the two jurisdictions, lack of clarity over asset coverage and the absence of an appointed executor. If an executor is named in the will, the executor (usually with the help of his/her Hong Kong solicitor) applies for probate in Hong Kong.

What if the deceased left no will or an invalid will?

If the deceased left no will or an invalid will, this is deemed an intestacy and the deceased’s estate will be distributed in accordance with Hong Kong’s intestacy rules pursuant to the Intestates’ Estates Ordinance Cap 73.

Who are the heirs in an intestacy?

Very broadly speaking, the surviving spouse (with a fixed statutory legacy in specific situations) and children take priority and extended family members such as parents and siblings inherit only if closer relatives do not exist.  A suitable family member (often the surviving spouse or an adult child) applies for Letters of Administration in order to administer the estate.

What are the documents generally required of PRC heirs?

PRC heirs are typically required to present the following documentation – death certificate issued by mainland Chinese authorities, resident identity cards of the deceased and heirs, hukou registration records to prove family relationships, marriage or divorce documents if applicable and notarial certificates confirming identity and kinship. In practice, Hong Kong courts usually require these documents to be notarised by a notary public in the PRC and properly authenticated (for example, via current apostille/legalisation arrangements).

What if probate proceedings have already been completed in the PRC?

Even if probate proceedings have already been completed in the PRC, it is not possible to apply for recognition of these probate documents in Hong Kong. Unfortunately the PRC is not listed as a country under Hong Kong’s statutory resealing regime as the listed countries are all common law regimes. A fresh application in Hong Kong is required.

Are there estate duties and estate taxes in Hong Kong?

Estate duties have been abolished in Hong Kong for deaths occurring after 11 February 2006 and there have never been estate or inheritance taxes. However, tax issues may arise in the PRC and other applicable jurisdictions.

What are some practical challenges faced by PRC heirs?

As a result of the numerous complications mentioned above, some common challenges faced by PRC heirs include delays due to incomplete documentation, difficulty proving family relationships where hukou registration records differ from actual family relationships, translation (from Chinese to English) as well as notarisation requirements and disputes over the validity or interpretation of wills (the latter complication is not unique to PRC heirs but occurs across all jurisdictions).

It is important to note that if the deceased was domiciled in the PRC, PRC succession law may be relevant in deciding who inherits movable assets in Hong Kong, although the Hong Kong court issues the grant and supervises the administration.

What is the expected timeline?

A straightforward probate application in Hong Kong takes a few months to complete. Complex cross-border estates take longer, particularly where there is no will, documents must be obtained from mainland authorities and/or heirs are in dispute about their entitlements.

Does planning ahead help?

For PRC citizens with assets in Hong Kong, advance planning can significantly reduce complications in the probate process. Many have opted to execute separate Hong Kong wills to cover their Hong Kong assets to streamline the legal process in Hong Kong, appointed executors familiar with Hong Kong laws and maintained clear records of bank accounts, shareholdings, property and other assets.

Conclusion

The passing of a loved one is one of the most difficult times in a person’s life. With the benefit of advance legal planning, heirs will be able to navigate the complicated process of probate more smoothly and avoid unnecessary stress during a time of immense grief. And with a properly drafted will, one can generally choose who should inherit one’s assets, without regard to fixed intestacy rules in Hong Kong.

In conclusion, it is advisable to seek professional legal advice if one’s estate involves Hong Kong assets.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Reproductive Technology in Hong Kong – Legal Framework, Ethics and Emerging Judicial Trends

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(This article was published in the August 2026 Issue of the Hong Kong Lawyer)

Introduction

Louise Joy Brown, born in Manchester on 25 July 1978, was the world’s first baby conceived via in vitro fertilisation (“IVF”). Eight years later, Hong Kong’s first IVF baby was born in December 1986 at a private hospital in Happy Valley. His birth at the time was so controversial that his parents declined to reveal his and their identities, as well as his birthdate. As reported in the South China Morning Post, the Catholic Church had condemned the procedure as “an artificial manoeuvre to create life”.

Today it is estimated that 57 IVF babies are born every hour globally. Technological advancements over the years have rendered IVF procedures more mainstream, safer and success rates much higher.

Meanwhile in Hong Kong, the total fertility rate has been below the replacement level of 2.1 for decades, and even plunged to a record low in 2025. The HKSAR government’s recent efforts to reverse this trend include a one-off cash allowance of $20,000 for babies born between 25 October 2023 – 24 October 2026, increased child tax allowance, a “families with newborns allocation priority scheme” for public housing, increased childcare centres, increased quota for  IVF treatment within the public medical system and a new tax deduction for medical expenses related to assisted reproductive services.

In December 2025, the Human Reproductive Technology (Licensing) (Amendment) Regulation 2025 L.N. 160 of 2025 removed the previous 10-year statutory limit on own-use gamete and embryo storage. This is a significant change that aligns with modern international norms and advances reproductive autonomy.

Another area of reform that has been debated is updating the Human Reproductive Technology Ordinance, Cap 561 (“HRTO”). Enacted in 2000, the HRTO is the principal legislation that governs human reproductive technology (“RT”) procedures in Hong Kong. The HRTO at present effectively ringfences access to RT procedures (other than egg freezing) to “parties to a marriage”. Same sex marriage is not yet recognised under Hong Kong laws, leaving access to infertile, married heterosexual couples. Commercial surrogacy is also prohibited under the HRTO.

Principal Legislation

The HRTO preamble states that it is an ordinance “to regulate reproductive technology procedures, and the use, for research and other purposes, of embryos and gametes; to confine the provision of reproductive technology procedures to infertile couples subject to any express provision to the contrary in any code; to regulate surrogacy arrangements; to establish a Council on Human Reproductive Technology; and to provide for matters incidental thereto or connected therewith”.

Regulatory Body and Licensing

Pursuant to the HRTO, s.5, the Council on Human Reproductive Technology (“CHRT”) is the statutory body charged with a number of statutory functions under the HRTO, including licensing and policy-related duties..

Definitions

Reproductive technology procedures are defined in the HRTO as,

“…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;”.

The HRTO does not define infertility. There is a general reference in the preamble to confining reproductive technology procedures to infertile couples. The World Health Organization defines infertility as “a disease of the male or female reproductive system defined by the failure to achieve a pregnancy after 12 months or more of regular unprotected sexual intercourse” and this is a generally accepted definition for practical purposes.

Code of Practice and Professional Standards

Pursuant to the HRTO, s.8, the CHRT shall issue and maintain a Code of Practice on Reproductive Technology and Embryo Research (“Code”), which sets out detailed guidelines for RT service providers and embryo researchers. The Code first came into effect on 1 August 2007. 

The preamble of the Code states that while it provides guidance and minimum standards to safeguard the health and interests of service users and to protect the welfare of children born via RT, professionals concerned should still follow the codes of practice and professional ethics of their own disciplines, which the Code does not supersede.

Eligibility

The HRTO, s.15(5) restricts RT procedures being provided to persons who are parties to a marriage. Read in conjunction with the preamble to the HRTO and the Code paragraph 4.2 which refer specifically to infertile couples, in general only infertile married couples are treated in practice as able to avail themselves of RT procedures except this shall not apply to surrogate mothers pursuant to section 15(6) or couples who are permitted to use embryo sex selection for medical conditions e.g., to avoid serious sex linked diseases, pursuant to section 15(3) and as specified in Schedule 2 of the HRTO.

Since the preamble of the HRTO and Chapter IV of the Code state that RT procedures should only be made available to infertile couples, RT procedures for social or non medical reasons are not generally permitted except in very limited circumstances.

Specific Exclusions and Exceptions

Single persons, cohabiting heterosexuals who are not married and same sex couples are not eligible to receive RT procedures as the HRTO generally limits treatment to persons who are parties to a marriage as interpreted under current laws (the Code paragraph 4.1 note 12).

Within that framework, the HRTO allows for narrowly defined exceptions such as under section 15(7) which allows the continuation of an RT procedure where the couple was married at the time gametes or an embryo were first placed in the woman’s body, even if the marriage has subsequently ended. Another example is embryo sex selection to avoid serious sex linked diseases. Schedule 2 (and its amendment) of the HRTO specifies the sex linked diseases for which embryo sex selection is permitted.

While it appears that those who are legally allowed to avail themselves of RT procedures in Hong Kong are adequately protected and supported, those who do not fit within the current legal framework (such as singles, unmarried heterosexual couples, same sex couples) remain effectively excluded, regardless of their reproductive circumstances and Hong Kong’s alarming birth rate.

​The HRTO and the Code restrict the provision of RT procedures, in general, to infertile, married heterosexual couples. Same sex couples and single persons are excluded from the vast majority of RT procedures under current legislation.

Commercial transactions in (the buying and selling of) embryos, gametes and surrogacy are prohibited. Hence, only altruistic donations of embryos, gametes and surrogacy arrangements are permitted although reimbursement of legitimate expenses is allowed, in accordance with the HRTO, s.16 and s.17. Appendix II of the Code sets out guidelines on reimbursing donors.

Emerging Judicial Trends

While legislation has been updated at a slow pace, case law sits at the intersection of law, evolving ethics and current public policy. In Re A and Another HKCFI 1749; 5 HKLRD 366 (HCMP 1571/2018, Au-Yeung J, 14 October 2019), the court had extended the statutory 6 month time limit in the Parent and Child Ordinance Cap 429 s.12(2) and retrospectively approved commercial surrogacy payments despite the illegality of commercial surrogacy arrangements in Hong Kong because 1) the applicants acted in good faith without moral taint or intent to defraud, 2) the payments were not so disproportionate as to offend public policy and 3) the A & B v E ** HKCFI 3143** (HCMP 731/2023…) parental order was in the best interests of the children vis-a-vis their lifelong welfare and legal identity. Au-Yeung J applied and elaborated the same analytical framework in A & B v E HKCFI 3143 (HCMP 731/2023, Au-Yeung J, 4 December 2023).

The above two cases, together with CS v SW HKCFI 2326 (HCMP 1731/2023, Au-Yeung J, 25 September 2024) and HSC v T; HSC v D HKCFI 770 (HCMP 706–707/2025, Au-Yeung J, 2 February 2026) form an emerging body of case law that points to Hong Kong courts granting parental orders and approving commercial surrogacy payments made in good faith, always with an overriding concern for the lifelong welfare of the child. In the latter case, the court again granted parental orders and approved separate commercial surrogacy payments for two oral surrogacy arrangements made in Shenzhen with two surrogates and extended the deadline of the statutory 6 month time limit in the Parent and Child Ordinance Cap 429, s.12(2). The lifelong best interests of the two children were considered. Rather than deliberately committing a breach, the commissioning parents had unfortunately acted without obtaining proper legal advice and had been ignorant of the law.

Surrogacy and Legal Parenthood

Surrogacy arrangements fall within the purview of the HRTO. The preamble of the HRTO sets out its mandate to “to confine the provision of reproductive technology procedures to infertile couples subject to any express provision to the contrary in any code”. Pursuant to the Code paragraph 12.2(b), a RT procedure may only be provided if the wife in that marriage is unable to carry a pregnancy to term and no other treatment option is practicable. In accordance with the Code paragraph 12.7, counselling by a multi-disciplinary team must be provided to all parties in the surrogacy arrangement, including the husband of the surrogate, if any.

Surrogacy is only permitted in altruistic circumstances and not on a commercial basis. Pursuant to the HRTO, s.17, there is a prohibition on surrogacy arrangements on a commercial basis. The Code paragraph 12.1 cross references the prohibition.

No surrogacy arrangement is enforceable by law under the HRTO, s.18 and as set out per the Code paragraph 12.6. As well, all parties to a surrogacy arrangement should be informed that the surrogacy arrangement is not enforceable.

The Code paragraph 12.8 sets out the suitability criteria by which commissioning couples and their surrogates must be assessed, taking into account their physical, mental and social well being. The surrogate must be at least 21 years of age (the Code paragraph 12.4).

The Parent and Child Ordinance Cap 429, s.9 states that the woman who gives birth is treated by law as the child’s mother (and if she is married and her husband has consented, he is treated by law as the child’s father) despite any surrogacy agreement that is in place. Section 12(2) prescribes that a commissioning couple must apply to the court within six months of their child’s birth for a parental order, and the court may make such a parental order provided all the conditions of subsections 12(1) – (7) have been met.

In the case of HC v WYH HKCFI 1157 (HCMC 3/2023, Chu J, 30 April 2024), the parties were married but subsequently separated. The issue before the court was whether the lack of parental orders or adoption orders (the two children in question were born out of commercial surrogacy arrangements made in California) were obstacles to the Family Court making orders in the best interests of the children as they were “children of the family”.

The court ruled that the statutory definition of “child of the family” as set out in section 2 of the Matrimonial Proceedings and Property Ordinance Cap 192 is broad and autonomous and children born of commercial surrogacy arrangements fall within the definition (without adoption or parental orders in place), giving the court jurisdiction to make custody and maintenance orders in divorce proceedings.

In the case of CS v SW HKCFI 2326, HCMP 1731/2023 (25 September 2024, Au-Yeung J), the court ruled that the children’s best interests and the need for secure lifelong legal status with their de facto parents outweighed the serious breaches of Cambodian, Thai and Hong Kong laws regarding commercial surrogacy and a delay of over 4 years beyond the statutory limit specified in the Parent and Child Ordinance Cap 429 s.12(2).

Sanctions and Enforcement

Breaching the HRTO may be a criminal matter and may lead to fines, imprisonment and regulatory sanctions including the loss of professional licences for practitioners and researchers.

Conclusion

Hong Kong’s legal framework in respect of RT was enacted a quarter century ago. The December 2025 removal of the 10-year limit on gamete and embryo storage was a welcome modernisation although the foundational framework for eligibility and access to RT remains the same.

The more significant developments have come from the judicial rather than legislative front – the four seminal cases discussed above have established that the courts will grant parental orders and approve commercial surrogacy payments made by commissioning parents where they acted in good faith (often in ignorance of their legal positions), the payment amounts were not disproportionate and the child’s best interests were taken into account.

The gap between what the HRTO prohibits and what courts have been willing to regularise is widening. Children born into this tenuous legal environment deserve legal certainty beyond what the courts have been able to grant. Hong Kong’s record low birth rate should tilt economic and social policy towards inclusive legislative reforms that follow judicial developments. Until then, those who are being denied access to RT procedures in Hong Kong will continue to search overseas for solutions.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Family Offices in Hong Kong: Tax Concessions, Re-domiciliation, and Proposed 2026 Reform

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Hong Kong stands out as a premier destination for family offices, offering a unique blend of business-friendly policies, robust legal frameworks, and strategic advantages.

1. Business-Friendly Tax Regime

Hong Kong imposes low and simple taxes with no VAT, capital gains, dividend, or inheritance taxes. As at June 2026, Hong Kong holds 58 comprehensive avoidance of double taxation agreements, with another 16 under negotiation.

2. Robust Legal System

The city operates under a Common Law framework, providing strong rule of law and investor protection.

3. World-Class Financial Services

As a leading global hub for private banking, asset management and professional advisory services, Hong Kong offers tailored solutions for HNWIs and families.

4. Skilled Talent Pool

Hong Kong is home to a highly skilled, multilingual workforce.

5. Government Support

The Hong Kong government actively supports family offices through initiatives like FamilyOfficeHK under InvestHK and tax concessions for single-family offices.

6. Strategic Location

Hong Kong serves as a gateway to Mainland China and the Asia-Pacific region.

Re-Domiciliation of Family Offices

As of May 2025, non-Hong Kong incorporated companies, including family offices, can re-domicile to Hong Kong under a new statutory regime. This allows family offices to relocate their operations while retaining their legal identity and continuity. The streamlined process involves an application to the Companies Registry, with approvals typically granted within two weeks.

Key highlights:

  • The family office retains all assets, rights, obligations, and legal standing post-transfer
  • The family office obtains the same rights as family offices incorporated in Hong Kong
  • A fixed application fee (HK$6,050 electronically / HK$6,725 in hard copy)
  • Upon approval, the family office becomes a Hong Kong-incorporated entity and must deregister in its original jurisdiction within 120 days

Regulatory and tax implications:

  • Tax continuity is preserved – profits tax applies only to income sourced in Hong Kong
  • Relief and credits are available to avoid double taxation during transition
  • No stamp duty is triggered by re-domiciliation

Tax Concessions for Family-owned Investment Holding Vehicles (FIHVs)

Hong Kong’s Inland Revenue (Amendment) (Tax Concessions for Family-owned Investment Holding Vehicles) Ordinance 2023 introduced a 0% profits tax concession for qualifying FIHVs.

Who qualifies:

  • ≥ 95% beneficial interest held, in aggregate, by one or more than one member of the family (charities ≤ 25%, outsiders ≤ 5%)
  • Normally managed and controlled in Hong Kong, outsourcing is permissible
  • Holds ≥ HK$240 million specified assets (shares, stocks, bonds, debentures, etc.)
  • Carries on all core income-generating activities in Hong Kong with ≥ 2 qualified full-time staff and ≥ HK$2 million local operating spend
  • Not a business undertaking

What’s covered:

  • Transaction in specified assets (qualifying transactions): trading securities, FX, private-company shares, derivatives, etc.
  • Transactions incidental to the carrying out of qualifying transactions (receipts capped at 5% of total receipts)

Practical steps to obtain tax certainty:

  1. Map ownership to confirm ≥ 95% family control (with any charity/unrelated shareholding within limits).
  2. Elect for the concession – once, in writing – before filing the first relevant tax return.
  3. Verify substance annually: head-count, spend, and asset NAV.
  4. Monitor transactions for the 5% incidental threshold and private-company anti-avoidance triggers.
  5. Maintain documentation (family tree, group chart, management agreements, NAV calculations) ready for audit or advance-ruling submission.

Legislative Update: 2026 Preferential Tax Regimes Bill

  • On 12 June 2026, Hong Kong gazetted the Inland Revenue (Amendment) (Preferential Tax Regimes for Funds, Family-owned Investment Holding Vehicles and Carried Interest) Bill 2026.
  • The Bill proposes to expand Hong Kong’s preferential tax regimes for:
    • funds;
    • Family-owned Investment Holding Vehicles;
    • carried interest.
  • Expanded qualifying asset classes
    • The 0% profits tax concession would be expanded to cover additional asset classes, including:
      • digital assets;
      • gold and other precious metals;
      • specified commodities;
      • carbon credits;
      • private credit.
  • Broader eligible fund structures
    • Eligibility would be extended beyond traditional open-ended fund structures to include:
      • certain “fund-of-one” structures;
      • wholly-owned investment vehicles;
      • pension funds;
      • charity funds.
  • Carried interest tax relief
    • The Bill would enhance tax relief for performance-linked returns, including carried interest, for private equity and venture capital funds.
    • This is intended to strengthen Hong Kong’s competitiveness as a private capital and asset management hub.
  • Removal of 5% incidental threshold
    • The existing draft memo states that the concession covers transactions in specified assets and that receipts from incidental transactions are capped at 5% of total receipts.
    • The Bill proposes to remove this 5% incidental threshold, giving family offices greater flexibility in treasury, cash management and interest-earning activities.
  • Interaction with non-tax incentives
    • Hong Kong’s Capital Investment Entrant Scheme provides a residency pathway for individuals making a qualifying HK$30 million investment, including at least HK$3 million into a government-managed investment portfolio.
    • The scheme may also allow family members to be included, facilitating relocation alongside the family office structure.

Anti-Avoidance Measures

Hong Kong has implemented anti-avoidance measures to ensure that tax concessions are not abused. These measures include tests for immovable property, holding periods, and control and short-term asset tests.

Anti-Avoidance Measures

With its favourable tax regime, robust legal system, world-class financial services, skilled talent pool, and strong government support, Hong Kong is the ideal location for family office. Whether you are looking to establish a new family office or re-domicile an existing one, Hong Kong offers the perfect environment for long-term wealth planning and growth. Please contact us for further information.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Oldham, Li & Nie Launches Family Office Services to Support International Families in Hong Kong

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Oldham, Li & Nie (OLN) is pleased to announce the launch of its dedicated Family Office Services practice, expanding its capabilities in private wealth, trusts, succession planning, and cross-border structuring to meet the growing needs of international families.

Hong Kong has established itself as a premier destination for family offices, underpinned by common law system, attractive tax regime, and government-backed initiatives such as FamilyOfficeHK, tax concessions for Family-Owned Investment Holding Vehicles (FIHVs), and the New Capital Investment Entrant Scheme (New CIES). In 2026, the city has become the world’s largest cross-boundary wealth management centre, according to the Boston Consulting Groupi, reinforcing its appeal for global wealth planning,

OLN’s new Family Office Services practice will provide integrated legal support across the following areas:

  • Family Office Establishment and Structuring
  • Wills and Succession Planning
  • Trusts and Asset Protection
  • Complex Estate Planning
  • Cross-Border Tax and Structuring Advice, including the US and France elements
  • International Family Office Coordination
  • Ongoing Accounting and Reporting
  • Outsourced CFO and COO Support
  • Strategic Business Advisory Services Tailored to Family Offices and Private Investment Structures
  • Litigation Support
  • Immigration Law

“Hong Kong offers an exceptional platform for families seeking to build a lasting presence in Asia while staying closely connected to opportunities around the world,” said Gordon Oldham, Senior Partner. “At OLN, we understand that every family’s journey is unique. Drawing on our longstanding strengths across private client, tax and corporate services – as well as our dedicated US tax and French practices – we take a truly personal approach. We work alongside our clients to create tailored structures that not only protect and grow their wealth, but also reflect their values, aspirations and long-term legacy.”

The firm’s Family Office Services practice adopts a multidisciplinary approach, working closely with third-party fund managers and financial advisers.

For more information about the Family Office Services practice, please visit https://oln-law.com/practice-areas/family-office-services/

i https://www.info.gov.hk/gia/general/202605/27/P2026052700809.htm

Hidden US Tax Risks for Hong Kong Families – What Happens If Your Child Is a US Green Card Holder/ US Citizen?

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Many Hong Kong families today have children who were born in the United States or educated there and have become US citizens. At the same time, it is increasingly common for Hong Kong individuals to invest in US listed stocks given the depth and liquidity of the US market. What is often overlooked is that these two factors – US‑citizen family members and US investments – can create significant and unexpected US tax exposure.

A common misconception is that “US tax does not apply because I do not live in the US.” In reality, the combination of US‑citizen beneficiaries and US‑situs investments can bring Hong Kong families within the US tax net in ways that are not immediately obvious.

To start with, the United States operates a fundamentally different tax system than that of Hong Kong, in the sense that a US citizen is subject to tax on worldwide income regardless of where they live. As a result, a child who is a US citizen will have ongoing US tax and reporting obligations even if he or she has no intention of living in the US long term.

Separately, many Hong Kong individuals assume that because they are not US residents, US tax is not relevant to their succession planning while in fact US estate tax may kick in because such individual may have assets which are treated as “US‑situated assets”. A typical example would be US shares (including US‑listed ETFs). This gives rise to a common but frequently misunderstood risk: even if the parent is not a US person, holding US stocks directly can expose their estate to US estate tax.

This is particularly significant because the estate tax regime for non‑US individuals is extremely strict. The exemption is only USD 60,000, and any excess may be taxed at rates of up to 40%. Many Hong Kong investors holding US shares through brokerage accounts (even if such account sits in Hong Kong) may therefore have an unintended US estate tax exposure.

The risk becomes more acute in a typical family scenario – where parents hold US investments, and upon their passing, those assets are intended to pass to a US‑citizen child. Without proper structuring, US estate tax may be imposed at the estate level before any distribution is made, and the child may also face ongoing US tax and reporting obligations thereafter.

To understand more, please discuss with our professional team:

Anna W.K. Chan, Partner, Head of Tax & Private Client
Email: anna.chan@oln-law.com

Joshua D. Maxwell, US Tax Attorney
Email: joshua.maxwell@oln-law.com

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

A Review of In Vitro Fertilisation Regulations in Different Jurisdictions

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(This article was published in the February 2025 Issue of the Hong Kong Lawyer)

In vitro fertilisation (“IVF”) has emerged as a cornerstone of assisted reproductive technology, offering hope to same sex couples, single people, couples facing infertility and/or mothers in high-risk pregnancies. With advancements in medical science, the procedure has become more accessible with increasingly higher success rates, yet the legal frameworks governing IVF vary significantly around the world. This article examines the legal landscape of IVF across a number of jurisdictions, highlighting key regulations, ethical considerations as well as societal implications.

The Rising Importance of IVF

The dawn of IVF began in 1978 with the birth of Louise Joy Brown, the world’s first “test-tube baby”. By 1982 when Brown’s sister was born, the latter was already the world’s 40th IVF baby. Since then, the procedure has evolved, becoming a common solution for men and women struggling to become parents due to various factors as diverse as age, medical conditions and/or lifestyle choices. Since 2001, the World Health Organization has recognised infertility as a significant global health issue affecting millions of people, estimating that worldwide, one of every six persons of reproductive age will experience fertility at some point in their lives; it emphasises the need for equitable access to reproductive technologies.

Jurisdictional Variations and Legal Considerations
Australia

Australia has established a comprehensive legal framework for IVF through the Reproductive Technology Accreditation Committee and the National Health and Medical Research Council. The Assisted Reproductive Technology Act 2007 in New South Wales allows IVF for both medical and social reasons. Publicly supported and private IVF clinics may impose their own age limits on IVF patients. One of the stated objects of the legislation is to prevent the commercialisation of human reproduction – hence the sale of human embryos is not legal in Australia. If donated embryos are used in IVF, they must be donated as altruistic gifts, although the payment of reasonable expenses is allowed. Consent is also a critical component, requiring both partners to agree on the use of their gametes. In New South Wales, providers must seek the approval of the Secretary of the Ministry of Health if embryos over 15 years old are to be used.

Canada

In Canada, the Assisted Human Reproduction Act (“AHRA”) regulates IVF practices, emphasizing patient safety and informed consent. The Act permits IVF for medical reasons, while social IVF is less clearly defined. Storage of embryos is limited to a maximum of 10 years and public healthcare coverage for IVF varies by province, with some offering partial public funding or tax credits for IVF treatments. In the province of Ontario, for example, the government provides treatment for one IVF cycle for one patient per lifetime, provided the patient is a resident of Ontario under 43 years of age. The AHRA prohibits the sale of ova, sperm and/or embryos and specifically states that altruistic donations are in line with Canadian values.

Germany

Germany maintains a conservative stance on IVF. The Embryo Protection Act dates back to 1990 and prohibits egg donation, surrogacy, the creation of embryos for non-medical reasons and limits the number of embryos that can be transferred in one cycle. A few states offer subsidies for IVF to same sex couples and unmarried couples, but the vast majority of states only provide assistance to heterosexual couples. The outdated legal framework reflects societal values that have apparently evolved. The current German coalition government set up an expert commission which in April 2024 recommended legalising and regulating egg donation and making surrogacy legal in limited circumstances.

Hong Kong SAR

Hong Kong’s Code of Practice on Reproductive Technology & Embryo Research was published by the Council of Human Reproductive Technology in 2002 and also reflects conservative values. Since same sex marriage is not yet legally recognised in Hong Kong, couples in same sex marriages and single women are not yet able to access post egg freezing services leading to live pregnancies. Only altruistic IVF is allowed in Hong Kong – commercial surrogacy is not legal. A few public hospitals provide public IVF services to couples where the wife is a Hong Kong permanent resident under the age of 40 years with no biological children. Unfortunately, the waiting period for the initial IVF appointment could be up to three years.

Japan

Japan has seen a rise in IVF popularity – in 2021, 1 in every 11.6 babies born was an IVF baby. Yet legal support for IVF remains limited. The Act on Regulation of Human Cloning Techniques governs IVF practices, only allowing the procedure under strict regulations. Embryo storage is permitted, but the law emphasizes that embryos should not be created for non-medical reasons. Due to the declining birth rate, IVF and other infertility treatments were added to national health insurance in 2022 but are only available to married couples. There are no legal provisions regulating surrogacy in Japan.

United Kingdom

The United Kingdom offers a progressive legal environment for IVF pursuant to the Human Fertilisation and Embryology Act 1990, which also established the Human Fertilisation and Embryology Authority. IVF is permitted for both medical and social reasons, with no age restrictions for women, although clinics may impose their own policies. Public funding for IVF is available depending upon where a patient lives but typically reserved for couples facing medical infertility. Altruistic surrogacy with paid expenses is legal in the UK, but surrogacy agreements are not enforceable.

United States

In the United States, IVF and surrogacy laws are primarily regulated at the state level, leading to significant variations and a complex landscape. While many states have adopted supportive legislation for IVF and commercial surrogacy, others impose restrictions based on ethical or religious beliefs. Insurance coverage for IVF also varies widely, with some states mandating coverage for infertility treatments. In February 2024, IVF treatments came to a standstill in Alabama when the state’s supreme court ruled that frozen embryos should enjoy the same rights as children. Fertility providers paused IVF treatments for fear of prosecution for “wrongful death” in the event any embryos were destroyed during treatment. It was not until certain protections were carved out for fertility providers that IVF treatments resumed.

Conclusion – Ethical and Societal Implications

The legal frameworks surrounding IVF vary considerably across jurisdictions, guided by significantly different cultural, ethical and societal values. Issues such as embryo rights, consent and access to reproductive technologies are at the forefront of public discourse and legislation. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.