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For Better or Worse? Judicial Decisions Shed New Light on Development of Same-sex Couple Rights

Written by Gregory Wong for the Hong Kong Legal/ Politics Section.



It is not uncommon for same-sex couples to start a family using reciprocal in vitro fertilisation (RIVF). How Hong Kong percieves same-sex relationships both socially and legally naturally has lasting impacts on the ability of same-sex couples to start a family; this was the case in NF v R. Using this case, this article explores same-sex relations and the rights conferred to them.

With the call for equality for sexual minorities echoing worldwide, Hong Kong finds more of its citizens rallying behind the cause. A survey jointly published by Hong Kong and American universities found that 71% of respondents in 2023 said Hong Kong should have a law protection against sexual orientation discrimination, an uptick of 13% compared to statistics ten years ago[1]. This article aims to examine the recent judicial decisions concerning gay couple rights in Hong Kong, specifically the decision of NF v R [2023] HKCFI 2233. It will then go on to scrutinise the challenges of pushing for legislation for the rights of queer individuals. Other than accounting for the cultural differences with respect to UK case law, this article will discuss the intricacies of the mentioned case.

 

The case of NF v R revolves around the legality of same-sex couples as parents[2]. A lesbian couple, consisting of B and R, had the next friend (NF) give birth to a child (K) who possessed R’s genes due to the medical procedure of reciprocal in vitro fertilisation (RIVF). Despite K being genetically related to R and left under the care of R’s stable family, R was not legally recognised as K’s parent due to legislation that nullified her position, as it states that the woman who carries the child is to be regarded as the mother with no exception[3]. The role of a parent is not as straightforward as one might assume it to be in the eyes of the law, with Baroness Hale giving three interpretations of a “natural” parent in her judgement in another same-sex partner case, which include genetic, gestational and social/psychological parenthood[4]. Despite R being the genetic and social parent of K, Hong Kong legislation assigns the gestational parent as the mother, thus unravelling the main point of conflict. 

 

Multiple challenges were brought up by NF to contest the position of parent for R, many of which had been shot down during judicial decision-making. The arguments provided by NF surrounding Part V of the Parent and Child Ordinance (PCO) mainly consisted of the fact that the RIVF was not known to the UK and Hong Kong legislature previously and the difference of no surrogate being involved in gestation was enough for further examination[5]. Such claims were dismissed by the judge for a handful of reasons, leaving the contentions ultimately uncountable. The special provision provided in Part V prevails over the general section, meaning it takes priority over section 6 of the PCO in ascertaining the parentage of a child. Part V also does not target any specific technology, nor does it only apply to infertile heterosexual couples that NF believed it to be. The Chinese definition of parent (父母) further hinders NF’s cause. As both Chinese and English are used in conjunction for the construction of ordinances, both texts are regarded as equally authentic and the ordinance is construed accordingly[6]. Since 父母 literally translates to father and mother and was the expression employed, there would simply be no room for any other interpretation[7]. Alternatively, the term 家長 could be substituted for an appropriate replacement to describe parenthood, given its lack of mention of a specific gender[8]. Unfortunately, no such wording was utilised in the relevant ordinance. As such, the policy of the legislature strictly confines the legal boundaries of parents, leaving same-sex couples less access to their rights.

 

The issue of the parens patriae jurisdiction, which supposedly gives the court the right to establish a wardship order over the child, also could not be held as it was proven R was not the legal parent. However, in the issue of relief for R, the judge made the pronouncement of R as a parent of K at common law. Given B and R’s commitment as co-parents in relation to K, it was found that R can be considered a parent under binding adjudication. Even under the multitude of legislative restrictions that worked against R, it is commendable that a positive outcome could be reached for the security of a stable family life for K to flourish.

 

The lack of up-to-date legislation reflecting societal values and the constraints of a bilingual court system proves the difficulty that same-sex couples face in securing their rights in the changing modern landscape. Current Hong Kong legislation is simply inadequate in protecting sexual minorities at a fundamental level, where even same-sex marriage is not legally recognised[9]. This mission to rectify gaps in the law falls under the legislation and the fact that R could be found as a parent relied only on the goodwill of the judge. Continual change is more than needed for the future of the LGBTQ cause. Small as the judicial decision may seem today, this development bears good tidings for the legacy of same-sex couples, as it is expected that relevant legislation will surface within 2 years[10]. For now, we can only hope for the day of change to come swiftly and surely.







References

[1] Holning Lau, Kelley Loper, Yiu Tung Suen, ‘Support in Hong Kong for Same-sex Couples’ Rights Grew Over Ten Years (2013-2023): 60 Percent Now Support Same-Sex Marriage’ (2023)

[2] [2023] HKCFI 2233

[3] Parent and Child Ordinance, Cap 429, s6 

[4] Re G (Children) (Residence: Same-sex Partner) [2006] 1 W.L.R. 2305 33.

[5] ibid

[6] Interpretation and General Clauses Ordinance, Cap. 1, s10B 

[7] NF v R [2023] HKCHI 2233 E5.4 

[9] Hong Kong Bill of Rights Ordinance, Cap. 383, s19(2)

[10] Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 

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