On the 9th September, Mr Justice Coleman in the High Court handed down his judgement in the case of K (an infant) by his next friend R v the Secretary for Justice and others [2025] HKCFI 1974. This case involved a same-sex couple, married overseas, who were able to conceive a child, K, through RIVF (reciprocal in-vitro fertilization) whereby the egg from R was fertilized with the sperm of an anonymous donor to create an embryo which was then transferred to B's womb to carry to term. R was therefore genetically linked to their son and B was the birth mother. Under Hong Kong law, the only legal parent was the birth mother and the parent who was genetically linked to the child had no standing.
This matter came before Madam Justice Au Yeung in 2023 for a declaration of parentage under the Parent and Child Ordinance (the ordinance). The learned judge, in a considered judgment, found that she was not able to define R as a parent under the ordinance, but found that R was a 'parent at common law'. This did not satisfy the Department of Justice who, following the parent's application, refused to re-register K's birth to include R as K's parent on the basis that K's application for a declaration of parentage under section 6 of the ordinance had been dismissed. Hong Kong birth registration does not permit or cater for registration of both women as K's parents, and the form only allowed a 'mother' and a 'father'. This situation brought on significant emotional strain for the entire family, which prompted K to apply, through his next friend, R, for a judicial review.
The declarations sought were (i) that section 6 and Part V of the ordinance were unconstitutional as they did not provide for equal treatment for the child or the second intended parent in the current circumstances contrary to Articles 14, 19 and 20 (read together with Articles 1 and 22) of the Hong Kong Bill of Rights ("BOR") and Articles 4, 25, and 39 of the Basic Law ("BL"); (ii) that the government had a positive obligation to ensure that the second parent be included in the registration (iii) that the government was under a positive duty to amend or re-register K's registration to record K as parent and (iv) that references to 'parent' in section 6 be read to include the partner whose egg has been used in the creation of the embryo.
On behalf of B, counsel pointed out the absurdity where, in the context of surrogacy, the sperm donor, or simply the person married to, living with or attending the clinic with, the surrogate mother, can be named on the birth certificate as the father. In the situation of a heterosexual mother, the father will always be allowed to be entered onto the register as the father. She further argued that it was the Government's own stance that birth certificate records should not mislead and deceive, yet the current birth certificate which presented B as the only parent in the family unit (notwithstanding the declaration made by Au Yeung J) was liable to mislead and deceive. It was argued that the birth certificate was the most vital official identification document commonly required to show not just the identity of the child, but the identity of those persons who could be expected to have rights and authority in relation to that child. Omitting a person's name from official records will signal to external institutions, like schools, hospitals, clinics, etc., that such person is not a parent in the family unit and will face challenges in demonstrating or verifying parental status. Counsel for the government argued that R's legal rights as a parent could be met by applying for a guardianship order.
On review, Mr Justice Coleman respectfully questioned the effectiveness of his fellow judge's order as no practical effect could be achieved by a declaration as to parents at common law. Whilst it was clear that the learned judge had been inclined to mark the genetic link and the reality of R's social and psychological parentage, the declaration granted did not deal with a legal relationship, or at least not one with "legal consequences".
He then went on to consider each of the alleged breaches of the BOR, finding that, in each case, K's children's rights and his rights to privacy and family had been engaged and that there had been encroachment on or infringement of those rights.
It was also noted that a guardianship order could not exist beyond the child's majority and could not deal with the problem of his birth certificate, and neither a guardianship nor an adoption order acknowledged the child's genetic link to his parent. The Judge was cognisant of the fact that this was an application made by the child and for his best interests. Given the ordinance was intended to further the best interests of the child, it appears to rest on the assumption that the child's ability to apply to the court for a declaration that a named individual in the application is their legal parent inherently serves those interests. It was difficult to see why that should be different depending on whether the genetic link was between a man and the child or a woman and the child.
The judge found that the constitutional challenge was good, and the parties were invited to further address the question of relief. He concluded with an allusion to King Canute at the seashore and his attempt to stall the inevitable tide of change – or possibly his demonstration that this was a futile exercise and that, when the tide eventually came in "it was of course necessary to take steps to recognise that fact and to take steps to provide for or accommodate it."
While this landmark ruling marks a significant step forward for inclusivity and human rights, the road to equality for same-sex couples in Hong Kong still remains complex and challenging. This victory is only the beginning of a more hopeful future – one that embraces the evolving definition of families in Hong Kong.
In this important case, Withers acted for the birth mother, B, pro bono.
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