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Recent updates on IP practices in Hong Kong

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1. IPD new forms

The Intellectual Property Department (“IPD”) of Hong Kong has announced that a new set of Trade Marks Forms, Patents Forms and Designs Forms (“the new forms”) will be effective from 16 May 2025.

A key feature of all the new forms is the inclusion of a declaration requiring agents to confirm their local physical presence and residency or their engagement in business activities at the specified address in Hong Kong.

Additionally, the forms include a warning that providing false information or declarations constitutes an offence. The primary purpose of this requirement is to mitigate the risk of missed communications or deadlines if an agent lacks a physical presence in Hong Kong.

Therefore, IP owners should ensure they engage an agent with an actual physical presence in Hong Kong, rather than one that merely maintains a mailing address without conducting business activities.

Another notable feature of some of the new forms—specifically T8, T10, T11, P9, P10, P19, D5, and D11 – is the addition of data fields to capture the type and place of incorporation of IP owners, grantees, licensees/sub-licensees, mortgagees, and other relevant parties. This enhancement is designed to facilitate due diligence processes in relation to IP transactions.

IPD has provided the draft versions of the new forms for information purpose, see https://www.ipd.gov.hk/en/home/whats-new/index_id_628.html.

2. Absolute Grounds for Refusal of Trade Marks

IPD has revised the Chapter on “Absolute Grounds for Refusal of Trade Marks” with the aim to elaborating the Registry’s examination practice primarily focus on Sections 11(4)(a), 11(4)(b) and Section 11(5)(a) of Trade Marks Ordinance, summarize as follows:

Section 11(4)(a) –

marks contrary to accepted principles of morality, if the marks are: –

  • Offensive or vulgar
  • Threatening national security
  • Containing offensive or hateful content
  • Imitating official symbols
  • Containing references to tragedies or disturbing events

Section 11(4)(b) –

marks that are likely to deceive, if they: –

  • contain words “made/made in/imported from” or “exported from” a geographical place but in fact the goods are imported/exported from or made elsewhere; or
  • suggested official approval but without any actual endorsement.

Section 11(5)(a) –

use prohibited in Hong Kong by virtue of any law, if:

  • the use of the trade mark constitutes an offence under the PRC Law on Safeguarding National Security in the HKSAR and/or the Safeguarding National Security Ordinance.

Our firm could assist clients to assess the chance of refusal of the intended trade mark on the above grounds as well as other grounds before filing to avoid potential refusal of the marks.

3. Shortening the time of issuing hearing notice

Previously, IPD often took a year or more to schedule a hearing after the close of pleadings. However, in recent trends, IPD has significantly reduced the time required to issue a hearing notice, often scheduling hearings in less than a year. In some cases, hearing notices are issued within just one or two months.

This improvement is beneficial, as it allows parties involved in proceedings to anticipate a faster resolution of their cases, ensuring a more efficient legal process.

How We Can Help

As a Hong Kong law firm, we can serve as the client’s authorized agent in handling the registration of their IP rights, including the preparation and submission of the necessary IP forms to the IPD.  Additionally, we provide expert assistance in assessing the risk of trade mark refusal based on various legal grounds. By conducting this evaluation before filing, we help minimize the likelihood of rejection and ensure full compliance with applicable laws and regulations.

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.

The Legalities of Surrogacy: Complex Conceptions

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

Surrogacy is generally known as the act wherein an individual agrees to become pregnant and give birth on behalf of another person or persons who will become the child’s legal parent(s) after birth. It is controversial because of various reasons, including the potential exploitation of vulnerable surrogates, lack of clarity with respect to child rights and the fact that it may be contrary to societal and/or religious values in certain societies. Questions which often arise include whether a woman has a right to make autonomous decisions about her own body and whether surrogacy would lead to the further objectification of children and/or women’s bodies, countered by the principle that reproduction is a basic human right.

Altruistic surrogacy is defined as surrogacy without monetary compensation (other than the payment of medical expenses), most likely done out of the goodness of the surrogate’s heart. On the other hand commercial surrogacy is defined as a surrogacy arrangement that involves the payment of money for services rendered as a surrogate.

Possible Parental Rights

When a child is born via surrogacy, it is entirely conceivable that the child has up to five types of individuals with varying and sometimes conflicting claims to parental rights – the sperm donor, the egg donor, the surrogate, the intended parents (if they were not the sperm donor and/or egg donor) and where divorce occurs, the step parents. The legal issues which arise with each type of individual and their parental rights are complex and often fraught with uncertainty.

Emotional and Psychological Factors

The surrogacy journey can be emotionally taxing for all parties involved. Intended parents may experience a range of emotions, from excitement to anxiety about the process and perhaps even a change of heart in extreme circumstances. Surrogates also face significant physical and emotional hurdles, including potential health complications during or after pregnancy, as well as the risk of forming an emotional bond with the child they are carrying. Awareness, open communication, counseling and robust institutional support systems are essential for societies to accommodate surrogacy arrangements from pre pregnancy to post birth.

Financial Considerations

The financial implications of surrogacy can be considerable, often ranging from tens of thousands to well over a few hundred thousand US dollars. Costs can include medical procedures, legal fees, agency fees and compensation for the surrogate. Many intended parents find themselves traversing a landscape where insurance coverage is limited, and financial planning becomes essential.

The Ethics of Surrogacy

There are many divergent points of view that highlight the complexities of this reproductive arrangement. Central to the discussion are the power dynamics which may emerge between wealthy intended parents and economically disadvantaged surrogates, raising concerns about exploitation and informed consent in commercial surrogacy agreements. The roles of surrogacy agencies and other brokers may create potential conflicts of interest, prioritising profit over the well-being of surrogates and even children. More recently, the ethical implications of genetic enhancement and selection further complicate the landscape, as they challenge notions of fairness and equity in reproduction. Moreover, medical practitioners must uphold their professional responsibilities to ensure that all parties are fully informed and supported, emphasising the need for ethical guidelines that prioritise the health and rights of surrogates and children while respecting the intentions of intended parents.

Legal Environment and Considerations

The legalities surrounding surrogacy can be complex and vary significantly by jurisdiction. In some countries, surrogacy is fully supported by the law, while in others, it remains highly regulated or even prohibited. Understanding these legal frameworks (which are often reflective of different societal values), is crucial for legal practitioners, would-be surrogates, intending parents and relevant health care providers.

In many jurisdictions, complex legalities beyond the actual surrogacy may not have been legislated as yet, such as rights of the child vis-a-vis immigration and citizenship when born abroad, their access to genetic/biological information, right to maintain a relationship with their surrogate mother as well as rights to other disclosure requirements.

Well drafted surrogacy agreements may provide for unforeseen circumstances such as prenatal testing decisions and potential conflicts, medical emergencies or even the termination of a pregnancy, but in many jurisdictions, surrogacy agreements are not enforceable. The results may be unpredictable in many surrogacy arrangements.

Australia

All Australian states prohibit commercial surrogacy, citing concerns about the exploitation of surrogates as well as parental rights and best interest of the child. Altruistic surrogacy is allowed, with some states being more restrictive than others. Reimbursement for verifiable, out-of-pocket expenses may be made where the expenses are directly associated with the surrogacy procedure, pregnancy or birth.

Pursuant to the  Ethical guidelines on the use of assisted reproductive technology in clinical practice and research 2017 (updated 2023), expenses which are allowed include the following:

  • medical and counselling costs, before, during, and after the pregnancy or birth;
  • travel and accommodation costs within Australia;
  • loss of earnings from unpaid leave;
  • insurance;
  • child care costs when needed to allow for attendance at appointments and procedures related to the surrogacy arrangement; and
  • legal advice.

The legal recognition of intended parents depends on the state where the surrogacy arrangement takes place. In the state of New South Wales, the Surrogacy Act 2010 stipulates that at birth, the surrogate is recognised as the birth mother of the child and if she is married or has a partner, that person is recognised as the other parent. The intended parents must then apply to the Supreme Court for a Parentage Order before they can be recognised as the legal parents.

Surrogacy arrangements made in New South Wales are not legally enforceable.

Canada

The federal Assisted Human Reproduction Act (“AHRA”) governs surrogacy in Canada, where only altruistic surrogacy is permitted. Compensation for expenses is permitted but commercial surrogacy is strictly prohibited. The AHRA does not affect the legality of any surrogacy agreement that has been signed in Canada, which must follow the law of the province where the agreement was signed.

Legally reimbursable items include:

  • ravel expenditures;
  • expenditures for the care of dependants or pets;
  • expenditures for counselling services;
  • expenditures for legal services and disbursements;
  • expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;
  • expenditures for obtaining products/services that are provided or recommended in writing (and the cost of such recommendation) by an authorised person to assess, monitor and provide health and postpartum care to a pregnant woman;
  • expenditures for the services of a midwife/doula;
  • expenditures for groceries, excluding non-food items;
  • expenditures for maternity clothes;
  • expenditures for telecommunications;
  • expenditures for prenatal exercise classes;
  • expenditures related to the delivery;
  • expenditures for health, disability, travel, or life insurance coverage; and
  • expenditures for obtaining or confirming medical or other records.

The legal process through which intended parents obtain legal parental status varies by province. Pursuant to the Children’s Law Reform Act in the province of Ontario for example, intended parents establish parentage through a simple administrative process provided the surrogacy agreement was entered into prior to conception, each party received independent legal advice, there are no more than four intended parents and conception was achieved via assisted reproductive technology.

Hong Kong SAR

Pursuant to section 17 of the H (Cap. 561), Hong Kong prohibits commercial surrogacy arrangements. In altruistic arrangements, bona fide medical expenses arising from the pregnancy and the delivery of the child born via surrogacy are legally reimbursable.

To establish legal parentage, the intended parents may obtain a parental order under section 12 of the Parent and Child Ordinance (Cap. 429). Unfortunately only legally married heterosexual couples can apply. When considering the application, the court will retrospectively authorise and approve surrogacy expenses.

Where the intended parent or parents are not legally married heterosexual couples, the only option may be to seek judicial approval for the child to be privately adopted outside the Social Welfare Department. This limitation arises from Hong Kong’s current lack of recognition for same sex marriages.

Hong Kong’s regime is one where an altruistic arrangement with intended parents who are legally married to each other is the only legal pathway for surrogacy. Furthermore, surrogacy agreements are not enforceable in Hong Kong, making it a challenging jurisdiction for surrogacy arrangements.

United Kingdom

In the UK, surrogacy is regulated under the Surrogacy Arrangements Act 1985. Surrogates can be compensated for reasonable expenses, but surrogacy agreements cannot be enforced. Commercial surrogacy is prohibited.

There is no definition of what constitutes reasonable expenses – this has led to generous interpretations by the courts for allowable expenses, yet commercial surrogacy is strictly prohibited. The Law Reform Commission of England and Wales published a joint report with the Scottish Law Commission in 2023 that recommended clarifying categories of payments that intended parents will be permitted to make and conditions for intended parents to become legal parents upon the birth of a child born via surrogate.

At present, the surrogate is the child’s legal parent at birth in the UK. If the surrogate is married or has a partner, the spouse/partner will be the child’s other legal parent, unless they did not give their consent. Intended parents may apply for a parental order at the family court after the child’s birth to gain legal recognition as the parents but only if one of the intended parents is genetically related (i.e., the egg or sperm donor) to the child. If not, the only route to becoming legal parent(s) is adoption.

United States

In the U.S., surrogacy laws differ from state to state. States like California and Illinois have permissive regulations that support both altruistic and commercial surrogacy arrangements, often providing legal recognition of the intended parents as the child’s legal guardians. Conversely, Arizona’s Revised Statute § 25-218 prohibits surrogacy. In many other states, their legislatures have not yet legislated for or against surrogacy.

New York’s Family Court Act Chapter 686 Article 5-C allows for reimbursement and compensation for surrogates, enforceable surrogacy agreements and judgement of parentage prior to the child’s birth, which becomes effective upon the child’s birth.

This patchwork of laws often leads intended parents to “venue shop,” opting for states or regimes with more favorable legal conditions for surrogacy. But arranging for surrogacy in one venue and then taking the child to live in another venue may lead to a more complex route when the intended parent(s) seek to become legal parent(s) of the child.

Other Jurisdictions

Countries like India, Russia and Ukraine have become popular destinations for international commercial surrogacy due to their more permissive laws. However, intended parents must make themselves aware of the legal challenges they may face when they wish to return to their home country with a child born via surrogacy.

Conclusion

Both altruistic and commercial surrogacy offer a viable pathway for many individuals and couples hoping to create a family despite their financial, legal, physical and/or psychological obstacles. Navigating these complex landscapes requires careful consideration, maturity and professional planning. Understanding the specific laws and regulations governing surrogacy in various jurisdictions, alongside their associated costs and support systems, is essential for the intended parent(s).  

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.

入住香港安老院：不可忽视的法律与合约考量

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2024年4月15日，消费者委员会发布了一份 重要報告，深入检视香港安老院的标准、费用及透明度。报告中揭示了多项问题，例如隐藏费用、不一致的护理标准以及含糊的合约条款。同时，报告也突显出一个更深層次的问题：含糊的合约条款及许多家庭选择安老院所涉及的法律和财务复杂性缺乏认知。

入住养老院，无论是政府补贴的还是私人的，都是一个重大决定，不仅涉及评估设施、人员配备和服务是否足够。合约的条款规范了从费用到护理服务以及作为住户的权利等一切事项。这一点在私人安老院尤为重要，因为家庭通常需要承担更多大的财务责任，所以必须更加谨慎地审视所签署的协议内容。

在本文中，我们将探讨在香港选择安老院时每个人都应该注意的主要法律和合同考量。

牌照与认证照

无论你考虑的是私人还是资助的安老院，第一步是确保该设施拥有合法牌照。在香港，所有安老院（RCHEs）均受《安老院条例》（第459章）规管，该条例为住宿、员工配置和护理服务设立了最低标准。

除了牌照外，还应考虑该安老院是否获得像香港认证服务（HKAS）等认可机构的认证。认证意味着该机构遵守更严格的标准，这可能会转化为更好的护理服务和更安全的环境。正如消费者委员会指出的，获得认证的安老院更有可能投资于持续改进。

费用：透明度至关重要

报告显示，私人安老院的费用差异巨大，从每月6,000港元到超过80,000港元不等。然而，这些数字往往不包括消耗品、医疗护理，甚至基本的空调费用等额外费用。因此，仔细检查合同并确保以下事项清楚明确是至关重要的：

  • 基本费用：清楚了解每月收费包含哪些项目
  • 额外收费：常见的额外费用包括医疗陪诊、特殊膳食需求或失禁用品如尿片。这些费用可能迅速累积，因此务必要求提供详细清单
  • 退款和押金政策：如果住户住院或选择提前离开安老院，未使用的费用是否会退还？许多合同对于退款有严格的规定，或者根本没有相关条款，因此这一点需要特别注意。
  • 费用调整：查看是否有允许调整费用的条款。虽然生活成本上涨是常见的，但合同应明确规定通知期限以及允许的涨幅百分比。

在私人安老院中，家庭需承担全部财务负担，因此费用透明度尤为重要。

护理服务：安老院能否满足不断变化的需求？

消费者委员会的一大关注点是安老院在应对住户健康状况变化时的灵活性有限。无论安老院提供的是基本护理、护理服务还是专门的失智护理，合同都应清楚列明可提供的服务以及如果护理需求随时间发生变化时的应对方式。

例如：

  • 该设施是否提供24小时全天候护理服务？
  • 如果住户出现行动问题或需要临终护理，会怎样处理？
  • 如果需要，安老院是否会协助安排转介至更高护理级别的设施？

私人安老院可能提供更具个性化的护理服务套餐，但这些通常需要支付相当高的费用。事先了解安老院是否能持续满足你亲人的需求，或者是否可能需要将其转介至其他设施，这是非常重要的。

终止政策

终止条款在不同的安老院之间差异很大，消费者委员会的调查结果显示，安老院在处理合同终止方面缺乏一致性。务必注意合同中有关以下方面的具体条款：

  • 自愿终止：如果你决定离开安老院，需要提前多长时间通知？退款政策是怎样的？
  • 安老院主动终止：在什么情况下安老院可以解除住户合同（例如，无法支付费用或健康问题无法处理）？
  • 驱逐程序：这些程序应与消费者保护法相符，以防止不公平或突然的驱逐。

私人安老院，可能会有更严格的条款偏有利于安老院，因此仔细审查这些条款至关重要。

争议解决：你的选择是什么？

许多合同中包含要求争议通过仲裁或调解而非法院诉讼解决的条款。虽然这些程序可能较为快速，比较昂贵，也可能会限制你采取法律行动的权利。确保合同中规定了清晰、公正和透明的解决程序，并了解像香港消费者委员会等资源，该机构可以调解争议并提供建议。

住戶權利：應注意的法律保護

根据《安老院（长者）条例》，住户有权享有基本权利，如隐私、尊严以及参与护理决策。私人安老院经常以提供“高端”服务为卖点，但这些基本权利不应该受到妥协。在审查合同时，确保它反映了对以下承诺的支持：

  • 医疗服务：现场医疗人员和紧急应对系统的可用性。
  • 安全与卫生：感染控制、清洁和定期健康检查的政策。

消费者委员会还鼓励家庭询问员工与住户的比例，因为较低的比例通常会带来更好的护理服务。

数据隐私与法律监护

消费者委员会强调，保护住户的个人和医疗信息至关重要，特别是在可能涉及外部服务的私人设施中。确保合同符合《个人资料（隐私）条例》（第486章），并包含有关资料共享或使用的明确指引。

如果住户有法律监护人或授权书，请确认安老院承认这些安排并尊重指定代表的决策权。

结论：保持知情，保障权益

消费者委员会的报告强烈提醒人们，在香港入住安老院是一个具有重大法律和财务影响的决定。

如果您想了解更多关于这方面的保障，请联络我们的合伙人，赵君宜律师，（+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。

OLN “Legal Eagles” Take on the Peak Race 2025: Running for Freedom

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OLN is proud to announce that our team, the “Legal Eagles”, will participate in the Peak Race 2025 in Hong Kong! Set for Saturday, 22 March 2025, this inspiring race, organised by 24 Hour Race, aims to raise awareness and funds to combat human trafficking and modern-day slavery, while empowering youth and supporting at-risk children in Thailand.

OLN team is lacing up not just to race but to actively support the cause through fundraising efforts. This year, we will directly support The Freedom Story , an organisation dedicated to protecting vulnerable children in Thailand from trafficking and exploitation.

With your generous support, we can help fund initiatives that will create long-term, life-changing impact:

1. Educational scholarships

Keeping vulnerable children in school by covering tuition and school supplies.

2. Financial management training

Empowering families with the skills to manage resources and build financial stability.

3. Youth leadership camps

Equipping young leaders to educate their peers through anti-trafficking outreach programs.

4. Mentorship programs

Providing emotional support and guidance to children facing crisis situations.

Gordon Oldham, our Senior Partner and an avid ultramarathon runner, shared his enthusiasm: “I’m thrilled that OLN is supporting such a great initiative. As both a runner and organiser of numerous Hong Kong trail races, I’ve seen first-hand the immense dedication and effort that goes into making a race happen – especially for a meaningful cause. I’m proud to be part of it this year.”

How You Can Help

We invite you to stand with us in the fight against human trafficking. You can contribute by:

  1. Donating – Every contribution is tax-deductible and, big or small, makes a direct impact on a vulnerable child’s future.
  2. Spreading the word – Share our fundraising page with your friends, family, and colleagues to expand our reach.

If you wish to donate, click here.

OLN’s Commitment to Community

Our participation in the Peak Race 2025 is part of OLN’s broader dedication to corporate citizenship. Beyond the legal world, we dedicate ourselves to our community – whether it’s through providing pro bono legal services to the elderly via our partnerships with Helping Hand, SAGE and other organisations, or participating in environmental sustainability projects.

At OLN, we believe our responsibility extends beyond legal practice. We are committed to making a difference where it is needed most – supporting vulnerable communities and fostering positive change in Hong Kong and beyond.

Beijing Internet Court: A Landmark in China’s Legal System for Cyber Disputes

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The Beijing Internet Court (“BIC”), established on September 9, 2018, stands as a pioneering institution in the global legal landscape, designed to address the growing challenges posed by the digital economy. As one of the first courts in the world dedicated entirely to internet-related disputes, it represents a significant step forward in adapting legal frameworks to the realities of the digital age. In the first 4 years, the BIC has concluded 150,000 cases. 

Background and Purpose

In China, where e-commerce, digital communication, and online platforms have expanded at an unprecedented rate, disputes related to the internet have surged. From intellectual property rights violations and contract disputes to online defamation and cybersecurity concerns, these cases often involve complex technical issues and a need for specialized legal expertise.

To address this, the Chinese government established the Beijing Internet Court with the aim of providing a streamlined, efficient, and transparent legal process for resolving internet-related cases. Its creation is part of a broader effort to improve the legal environment for internet development, as well as to ensure that the rule of law keeps pace with rapid technological advancements.

Jurisdiction and Scope

The Beijing Internet Court primarily handles four types of cases:

Online Purchase Contracts that signed online through e-platform;Online services contracts signed, performed online;Loan agreement online contracts;Copyright dispute published online.

Samples of cases :  

  1. Disputes arising from the conclusion or performance of online shopping contracts through e-commerce platforms;
  2. Online service contract disputes where the conclusion and performance are completed on the Internet;
  3. Disputes over financial loan contracts and small loan contracts where the conclusion and performance are completed on the Internet;
  4. Disputes over the ownership of copyright or neighboring rights of works published on the Internet for the first time;
  5. Disputes arising from the infringement of copyright or neighboring rights on the Internet of works published or communicated online;
  6. Disputes over Internet domain name ownership, infringement and contracts;
  7. Disputes arising from the infringement of the personal rights, property rights or other civil rights of others on the Internet;
  8. Product liability disputes arising from the infringement of the personal or property rights of others due to the defects of products purchased through an e-commerce platform;
  9. Internet public interest litigations filed by the procurator;
  10. Administrative disputes arising from administrative actions taken by administrative organs such as Internet information service management, Internet commodity trading and relevant service management;
  11. Other Internet civil and administrative cases designated by the people’s court at a higher level.

Technological Integration and Innovations

One of the most notable features of the BIC is its embrace of technology. The court uses various digital tools to streamline the judicial process and make it more accessible to both parties and the public:

  • Online Filing and Proceedings: Litigants can file cases, submit evidence, and attend hearings online, making the process more efficient and accessible, especially for those located far from Beijing.
  • E-Evidence: In many internet-related disputes, traditional forms of evidence such as physical documents are not always available. The BIC has pioneered the use of digital evidence, such as screenshots, website records, and blockchain-based data, to support claims.
  • AI Assistance: The court has incorporated AI tools to help with case management and even provide initial judgments on simpler cases. This technology helps expedite decision-making and reduce the administrative burden on judges.

These innovations reflect China’s broader efforts to modernize its legal system and make it more efficient in the face of new challenges posed by digital technologies.

Transparency and Accessibility

The BIC is also notable for its commitment to transparency. In line with China’s push to modernize its judicial system, the court makes its proceedings and rulings publicly available online. The court has even adopted a system for livestreaming trials, allowing citizens and legal professionals to observe the process in real time. This openness is intended to enhance public trust in the judicial process and ensure accountability.

Additionally, the use of online dispute resolution platforms provides an easy-to-access method for parties to resolve conflicts without the need for physical court appearances. This is especially important in a country as large as China, where access to courts can sometimes be geographically prohibitive.

Impact on Global Legal Systems

The BIC’s establishment has had a significant influence on the development of cyber law. China’s approach to internet-related legal matters also raises important questions about the role of the state in regulating the internet.

For global businesses, the BIC presents both challenges and opportunities. On one hand, companies operating in China must navigate a legal system that is closely integrated with government policy and regulatory frameworks. On the other hand, the court’s specialization offer a more predictable environment for resolving disputes, particularly those related to e-commerce and intellectual property.

Conclusion

The BIC offers a new model for addressing internet-related disputes. Its integration of technology, commitment to transparency, and focus on efficiency make it a significant step in the evolution of the Chinese legal system.

For more information you may refer to the BIC’s official website at Beijing Internet Court

OLN IP – Vera Sung (vera.sung@oln-ip.com) and Angel Luo (angel.luo@oln-ip.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

by

(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.