Hong Kong legal experts have praised a ruling that has awarded a lesbian couple equal parental status for their son conceived through fertility treatment, calling it a step forward for the LGBTQ community despite major questions remaining unanswered.
Twin lawyers Jocelyn Tsao Chiao-lin and Evelyn Tsao Chiao-yin, who handled the case, said the practical implications of the move to grant one of the women the status of “parent at common law” were still unclear.
“But I would think that given the court has recognised that the current legislation is discriminatory towards people like this couple, for sure, it will help in advancing other LGBTQ couples’ through their difficulties,” said Jocelyn Tsao, adding the case would serve as a “precedent”.
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The lawyers described the ruling as an unprecedented victory for same-sex couples.
The pair at the centre of the Court of First Instance ruling, which was made public last month, were married in South Africa four years ago and underwent reciprocal in vitro fertilisation (RIVF), a medical treatment for lesbian couples that allows one woman to provide an egg while her partner carries the child.
In the case, a woman identified as “R” provided an egg, while her partner, referred to as “B”, carried the baby and gave birth to a boy, named “K”, in Hong Kong in 2021. But only B was identified as the mother on the birth certificate, as the Parent and Child Ordinance defines a mother as the woman who carries and delivers the baby.
The court declared R as “parent at common law”, but it did not elaborate what rights she could enjoy.
Judge Queeny Au Yeung Kwai-yue wrote in her judgment that it had been proven the couple were in a committed relationship, intended to be co-parents and had used RIVF to give birth to their child.
“I have referred to R as a genetic parent to show how she is related to K,” she said.
“Whilst it was the choice of B and R that K should be ‘fatherless’, K is still discriminated as to his birth in the sense that, unlike other children, he does not have a co-parent, genetically linked to him.”
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Family law specialist Lisa Wong Wai-yin said the ruling would not bring any immediate changes to the city’s policies in recognising parental rights of such partners.
“The declaration made by the court for R to be recognised as the ‘common law parent’ is just another example for the court to fill the legislative gap when a situation such this happens, where the children are born to same-sex couples with modern technology involved, ” said Wong, who is a lawyer at Charles Russell Speechlys and chairwoman of the Hong Kong Family Law Association.
The judge also acknowledged that her hands were tied, saying she had “every sympathy” for children such as K but that it was “not for the court to rewrite the legislation”.
“Doing the best I can, I can only hold R to be a ‘parent at common law’,” she said.
Jocelyn and Evelyn Tsao said the court chose the common law wording in a bid to help determine the parental status of R without being caught by restrictions under current ordinances.
The city’s laws relating to parental matters are based on the recognition of marital status. Same-sex marriage is not recognised under the Marriage Ordinance, and the Human Reproductive Technology Ordinance restricts procedures to married couples.
Jocelyn Tsao said the concept of common law parent had been adopted in some common law countries, such as Canada, the United States and Australia.
For example, common law parents in Canada refers to people living together without getting married and raising a child together, and they share the same duties and rights as married couples in areas relating to the custody of, access to and adoption of a child.
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Despite a lack of clarity about what the latest ruling in Hong Kong meant for same-sex couples, the twin lawyers were optimistic the case would spur advances for equality in parental rights.
“We definitely envisage and hope there will be further efforts to push for parental rights,” Evelyn Tsao said.
Wong said the couple in the case, following the ruling, should in principle enjoy the right to take care of and make decisions for their son, but added further study would be needed to determine whether their entitlements were exactly the same as those for parents recognised under legislation.
She said she believed the latest court decision could signal a step forward.
“This will hopefully serve as a relief for future cases in similar situations which I believe is good news for the children born in those circumstances,” she said.
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Lawyer Alfred Ip, experienced in handling LGBTQ-related issues, said the ruling showed the Parent and Child Ordinance, which came into effect in 1993, was not equipped to deal with the evolution of families.
He anticipated other same-sex couples who wished to seek a similar declaration from the court would have to share the “exact background” of the pair in the case, otherwise it would need to consider each application using different principles.
Wong said Hong Kong could consider revising its laws to allow access by same-sex couples to reproductive technology, with changes made on other relevant services and infrastructure, such as a commitment by the government to running fertility clinics.
“Society has changed,” she said. “Our law needs to catch up with the development of society to cater for the needs of modern families.”
More from South China Morning Post:
- Hong Kong LGBTQ rights: court upholds rulings that favour housing benefits for same-sex couples
- How much should Hong Kong pay for IVF treatments? Couples must weigh cost of test-tube babies as city reluctant to raise subsidies
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