Same-sex parents can now apply for equal parental rights over their children, a Hong Kong court has ruled, a big step forward for the city’s LGBT+ community in its pursuit of equality.

The landmark judgement by the Court of First Instance has been welcomed by rights groups, as a victory. It could end legal challenges often faced by same-sex partners with children, only one of whom is the biological parent.

File photo: HKFP.

The court ruled late last month that a non-biological mother should be granted joint custody of her children with her ex-partner, who is the biological mother.

Following the separation of the couple, the children’s birth mother sought to formalise the non-biological mother’s parental rights to guarantee her legal status to her children. Given that both partners always shared the care of their children, the court said it would not be in the children’s best interests if the application was unsuccessful.

“The decision is encouraging and a step forward for same-sex couples, who now have a way to apply for joint guardianship of their children,” Jerome Yau, CEO of the LGBT+ NGO Pink Alliance, told HKFP. “It will put an end to a lot of issues faced by the community.”

Same-sex unions or civil partnerships are not recognised in Hong Kong, and couples cannot enjoy many of the benefits that come with matrimony, including some assisted reproductive services. Couples who chose to have children with the assistance of a sperm or egg donor faced numerous obstacles since only the biological partner would be listed as the legal parent.

Evelyn Tsao. Photo: Patricia Ho & Associates.

Evelyn Tsao of Patricia Ho & Associates, one of the lawyers in the case, told HKFP: “This ruling means that LGBT+ parents who are a de facto family unit will enjoy full guardianship over their children. It’s a big step as the non-biological mother will be recognised as well.”

While it will now become easier for lesbian mothers to apply for parental rights, practical difficulties may remain for gay fathers since commercial surrogacy is illegal.

‘Psychological and mental distress’

Yau said that failure to recognise both parents as legal guardians can be “incredibly problematic” for both the parents and the children involved.

“Children growing up with same-sex parents are often disheartened to learn later in life that one of their parents is not ‘legally recognised’,” Yau said. “It’s sad to see and can result in psychological and emotional distress for them, as well as the parents, certainly.”

A child playing in the park. File photo: GovHK.

Despite growing public support, same-sex marriage is still a long way from becoming legally recognised in Hong Kong. The reason, according to Yau, is a mix of conservative views and a lack of leadership from the government.

“Same-sex marriage is controversial in many societies but public support is rising,” Yau said. “Now it’s time for the government to catch up. They need to stop digging their heels in and take the lead.”

A ‘huge relief’, a ‘huge victory’

Rachael, together with her wife, changed their last names to a common one by a deed poll, a legal document that proves change of name, before their child was born, as a way to work around the issue: “My understanding is if we did it after the birth, only my wife’s name would be on the birth certificate as she is the birthing mother and I would have to legally adopt my own child,” Rachael, who wished to only use her first name, told HKFP. “This we have heard can be a lengthy and stressful process.”

Rachael added that the judgement is a “huge relief” for the LGBT+ community: “Not having legal rights to your own child can present stress in many situations that can sometimes be taken for granted,” she said. “We have family in the UK, South Africa and Hong Kong. If I was not legally recognised as a parent to my own child and I travelled solo with our child, this would present many problems. Of course in the event that anything happens to either of us we want to make sure that our child is looked after by family.”

File Photo: Pexels.

Amber, together with her fiancée are thinking about starting a family, and also called the ruling a “huge victory”.

“It’s an awful thought, but one concern would be if something happened to myself, as the birth mother, my partner would have no parental rights to our child,” she said. “If something happened to our child, my partner would have no rights to make decisions based on their care. It would be as if she was a stranger. If the law had not changed, we would have considered leaving Hong Kong and raising children elsewhere.

“We love Hong Kong, it is our home, but we would not be comfortable being here if we could not have equal rights as parents… Change is happening slowly, but the big hurdle at the moment is marriage equality,” Amber said. “Giving same-sex couples the right to marry in Hong Kong would be fantastic, we just want to be able to marry the person we love.”

Small steps forward

The courts have given the city’s LGBT+ community some small victories in the past. In 2015 a gay British expatriate known in court as QT challenged the law after she was denied a dependent’s visa after her spouse SS had taken up a job in Hong Kong under a work visa. The Director of Immigration rejected the application on the grounds that QT was not legally the “spouse” of SS.

The couple challenged the decision, claiming that they had been discriminated against due to their sexual orientation. In July 2018, following a three-year legal battle, Hong Kong’s Court of Final Appeal issued a landmark ruling in favour of QT. Immigration authorities, as a result, can now grant same-sex partners spousal visas previously available only to heterosexual couples.

Hong Kong’s Court of Final Appeal. Photo: GovHK.

In June 2019 the city’s top court once again set a precedent, ruling in favour of Angus Leung, a gay immigration officer who challenged the courts after his spouse was denied spousal benefits, including medical care and joint tax assessment, which are available to heterosexual couples. 

While these are steps in the right direction, Yau said that it should not be up to individuals and couples to ensure progress.

“It’s rather unfair to these couples, to subject them to long drawn-out legal proceedings,” Yau said. “These are time-consuming, not to mention financially draining. Perhaps the most important is the emotional energy that these individuals will exhaust during the process. The government must do something to bring Hong Kong forward with the times.”

Discrimination and social stigma

According to a 2018 poll by the University of Hong Kong, more than half of Hongkongers support same-sex marriage. By last year, opposition to legal rights for LGBT+ people reached a record low, with 60 per cent agreeing that there should be legal safeguards against discrimination based on sexual orientation.

Yet, at a legislative level, discrimination persists.

Junius Ho. File photo: Legislative Council, via Flickr.

Some lawmakers said on Wednesday the government should not help the organiser of Gay Games Hong Kong (GGHK) in securing venues. Pro-establishment lawmaker Junius Ho said the residents he represents oppose same-sex marriage but he “respects one’s sexual orientation.”

“It is your business what you do in your own room, but if you go out and do it in public, it’s disgraceful,” said Ho.

“The point is simple, the officials should not get involved in this, it’s the civil society’s business if they want to do it, it’s wrong [for the government] to throw money into this, and I don’t want to earn this type of dirty money. It doesn’t matter if we earn the HK$1 billion.”

The organiser of GGHK told HKFP at the time: “GGHK is all about bringing people together through sports, arts and culture. What Hong Kong needs more than ever is unity and diversity and this is exactly at the core of everything we do.” 

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Rhea Mogul

Rhea is a Hong Kong-based journalist interested in gender issues and minority rights, whose work has appeared in a number of publications across Asia. She is also on the 2019 Diversity List: a list of ethnic minorities that are qualified and committed to serve on Hong Kong government committees.