The Hong Kong Court of First Instance ruled Tuesday that the failure to provide proper recognition for a child born as a result of reciprocal in-vitro fertilization (RIVF) is unconstitutional. However, Judge Coleman will rule later on the question of relief, awaiting further arguments from counsel.
The case concerns provisions from the Births and Deaths Registration Ordinance and the Parent and Child Ordinance. In cases when artificial insemination is involved, the current law considers the male partner of the gestational mother as the father of the child, regardless of the marital status, even if the male partner is not genetically related to the child. However, the city’s current legal framework does not recognize the parentage of the genetic mother of a child born as a result of RIVF. The applicant challenged that the provisions discriminate against families founded on a female same-sex relationship.
Judge Coleman sided with the applicant. He reasoned that the law interfered with the applicant’s right to family life, rights in respect of marriage and family, rights of children and right to equality, all of which stem from the Hong Kong Bill of Rights Ordinance.
The government argued that the court’s inherent jurisdiction can grant the genetic mother the legal parental status, which provides for flexibility to protect the best interest of the child when the commitment and stability of the relationships may vary, and best protects the interest of the child.
Judge Coleman rejected the argument, stating that categorically denying the legal parental status of a genetic mother is not a flexible scheme. He also highlighted the question of why the legal scheme does not provide for the same flexibility to the court for heterosexual couples.
The government also raised a concern that “dual motherhood” may not be a widely accepted notion in the city. Judge Coleman also rejected the argument, stating that it would only provide material benefits to the child if parents could share their duties and responsibilities. In any case, withholding the parental rights and obligations from the genetic mother could not prevent the occurrence of “dual motherhood.”
In his postscript, Judge Coleman quoted the story of King Canute and the Waves. He wrote, “Either way, the inexorable event occurred, and the tide came in. When it did, it was of course necessary to take steps to recognise that fact and to take steps to provide for or accommodate it.”
The applicant is the child of a female same-sex couple. The couple underwent reciprocal in-vitro fertilization in South Africa and gave birth to the child in Hong Kong. However, the Birth Registry refused to register the genetic mother as a parent on the child’s birth certificate.
The city is witnessing the first deadlock between the legislature and the judiciary on the issue of same-sex rights. The city’s top court required the government to introduce an alternative framework that recognizes same-sex relationships two years ago. However, the legislature voted against the government bill on Wednesday. Same-sex rights remain a developing story in Hong Kong.