Hong Kong has had the reputation of being a modern, international city enshrined with western values of democracy and freedom. As pluralistic a society as Hong Kong is, however, it falls embarrassingly far behind other big city counterparts in terms of recognising the rights of same-sex couples.

In fact, it is only thirty years ago in 1991 that homosexual acts between consenting same-sex individuals were decriminalised, and the age of consent for homosexuals was subsequently brought down in line with heterosexuals in 2005.

Same-sex marriages are still not recognised in Hong Kong, and there is no concept of civil partnership in the legislation. As recently as 2020, the court refused to recognise same-sex marriages conducted overseas on the grounds that it was “unsustainable as a matter of law”. Despite this huge blow to the LGBT community the fight for equality for has picked up momentum through a series of legal challenges which have won recognition in some spousal benefits such as dependant visas, tax and housing benefits.

Withers' family team in Hong Kong has spear-headed the fight for same-sex parental rights, starting with a recent pro-bono case we were involved in last year. We managed to secure shared custody and equal parental rights for same-sex parents in the High Court. The parents of two boys, aged 9 and 11 were a lesbian couple who had split up. We represented the non-biological mother who applied to Court to have joint custody, and shared care and control of the two boys.

Owing to the strong emotional bond and relationship between our client and the children and the fact that the client has taken part in the care of the boys since their birth, there was simply no reason for the Court not to rule that it is in the children's best interests for our client – the non-biological mother – to be granted the same parental rights as the biological mother. The decision of the Court in 2021 was a huge victory to same-sex parents as, prior to this case, there was a question mark as to whether or not same-sex parents could have the same parental rights as heterosexual parents.

Following the success of that case, our team is now preparing for another legal challenge to further the rights of LGBT parents. In summary, the child of the lesbian couple in this case was born through reciprocal IVF in South Africa, with one parent being the gestational parent carrying the child, and the other parent being the egg donor. Despite the fact that both parents are genetically linked with the child and married in South Africa, when the baby was born in Hong Kong, neither the hospital nor the births and deaths registry would register the “egg mother” as a parent to the child. The birth certificate of the child registered no one as the “father” as same-sex marriages are not recognised in Hong Kong. We are therefore applying to the High Court for a declaration of parentage, which is one step further than granting same-sex parental custody.

The impact on the family not having both parents recognised as the child's parents by birth is profound – it is well understood that an order of the court providing for a child to be regarded in law as the child of its parent has a “transformative effect on the legal relationship between the child and its parent”. It is not only the legal impact, but it affects the very identity of the child as a human being, whether as an individual or as a member of his family. It is therefore fundamental for both parents to be granted the same legal status and recognition. This case is still in its beginning phase, but there is every hope that we will win this legal victory and open a wider door in relation to equal parental rights for LGBT couples.

Although there is still a long way to go before Hong Kong recognises same-sex marriages by legislation, these small but growing number of legal decisions contribute to chipping away that bigger block in the future. Together with the changing sentiment in the wider community and the growing acceptance of LGBT rights amongst the mid to younger generation, there is hope that there can be advancement of real LGBT equality in the near future.

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