(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.