2 days ago
Same-sex couples should have ‘right to found family,' lawyer tells Hong Kong court in reciprocal IVF case
Same-sex couples should have 'the right to found a family,' a lawyer has told a Hong Kong court after lesbian parents who had a child via reciprocal in vitro fertilisation (RIVF) were barred from including both their names on their son's birth certificate.
Hong Kong's High Court heard arguments in a judicial review related to the legal parental rights of same-sex couples with children born via RIVF on Wednesday and Thursday.
The case relates to a lesbian couple, R and B, who underwent RIVF – a procedure allowing two women to take part in pregnancy – in South Africa in 2020. The egg was extracted from R, and B carried and gave birth to the baby, K, in Hong Kong in 2021.
Hong Kong, which does not recognise same-sex marriage, views only a child's birth mother and her husband as legal parents. In R and B's case, only the birth mother, B, is the legal parent of their son.
The couple went to court in 2023 to seek a declaration under the Parent and Child Ordinance that R is also a legal parent. The judge declined but, in her ruling, stated that R was a 'parent at common law' – a first in the common law world.
Representing K, barrister Nigel Kat said on Wednesday that the 'parent at common law' status is not recognised in the Parent and Child Ordinance, and the child does not have a birth certificate showing that R is a legal parent.
'Therefore, R can walk around and tell everybody, 'I'm a parent,' [but] she can't prove it,' he said, adding that gay people 'are not excluded from the right to found a family.'
Kat argued that the birth certificates of children born via RIVF should reflect both parents' names, and that references to parents in the Parent and Child Ordinance should be amended to include 'parents at common law' where their children were born via RIVF.
'Demeaning' discrimination
During the hearing on Wednesday, barrister Isabel Tam – who is representing the birth mother, B, as an interested party in the case – said her client faced discrimination because of her sexual orientation.
If B and R were a heterosexual couple who had undergone IVF, they would 'not be in this position,' Tam said. 'This has quite a disproportionate impact on the development of her family life as well as how she presents herself to the outside world.'
The discrimination was 'particularly demeaning' because it was based on personal characteristics that could not be changed, the barrister said.
'B and R cannot change their… sexual orientation,' Tam said. 'K cannot change the manner of his birth.'
Stewart Wong, representing the Department of Justice, said on Thursday that while he accepted that the easiest way to prove parental status was a birth certificate, the suggestion that K's family would encounter embarrassing situations was 'exaggerated.'
One would not have to prove to the school that you are the parent every day, Wong said, adding that it would only need to be done when applying. For 'regular check-ups' at the hospital, the nurse would just require proof at registration, he said.
It is 'not as if you need to prove or bring… [the child's] birth certificate every day of your life when the child is a minor,' Wong said.
Guardianship order
There is already an existing framework – a guardianship order from the court – if one is seeking parental rights and status, he said.
'The guardianship order offers clear and absolute proof on occasions that legal rights and obligations… [are] necessary,' Wong said.
In response, Judge Russell Coleman said having to apply for a guardianship order may make the parents feel 'like less of a parent or a second-class parent.'
Barrister Azan Marwah, representing K, raised other issues that may not be addressed by guardianship orders. In the event of a separation, B would not be able to demand maintenance payments from R, who can 'simply get away,' he said on Thursday.
K would also have the 'lifelong disability' of not being able to inherit from R under the city's intestate ordinance, Marwah said, referring to the set of laws that regulate inheritance arrangements when one dies without a will.
On Thursday, Coleman challenged Wong's view that those seeking parental rights could simply apply for a court guardianship order.
The judge said 'what bristles with people' was the assumption that 'people like R and B… can't be perfectly good parents,' and questioned why a 'licence' was required.
Wong said such same-sex relationships could be 'too variable' as the parties may not be stable.
Coleman replied that the same could be said for heterosexual relationships.
The judge said he would hand down a decision by August 22.
The hearing comes ahead of the government's October deadline to provide a framework for recognising same-sex partnerships, per a top court ruling in 2023. No public consultations, however, are known to have taken place yet.
