(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.