Hong Kong perspective
In a landmark case before the Court of First Instance, the High Court ("CFI") ruled that the non-biological mother of children born by her prior same-sex partner should be granted guardianship rights, joint custody, and shared care and control over their children.
Same-sex marriages and civil partnerships are not recognised under the laws of Hong Kong. Many opt to have children with the assistance of a sperm donor but are faced with the conundrum that only the biological partner is recognised as the legal parent, despite both parents' intent to co-parent with equal involvement in their children's life.
A child's day-to-day routine may not be affected by this omission, but the ramifications for the non-biological parent may, however, be catastrophic. They potentially have no legal rights over their child in unforeseen extenuating circumstances, such as the sudden death or incapacitation of the biological parent, or the breakdown of their marriage. This is also a distressing circumstance for the child, who will eventually have to grapple with the discrepancies between the rights of their parents and potentially a less-than-satisfactory legal outcome.
In this case, the Applicant is the biological mother of the children and the Respondent is her same-sex partner. With the assistance of a sperm donor, the Applicant gave birth to the couple's first child in Australia in 2010, with both mothers registered as his legal parents under Australian law, and their second child in Hong Kong, where it was not possible for the Respondent to be listed as the child's parent. Following the couple's separation, they transitioned into a co-parenting arrangement with equal involvement in their children's lives. The application was issued in order to formalise the non-biological partner's parental rights should anything happen to the birth mother amidst the current COVID-19 pandemic, or in the future.
In considering the matter, the Court called for a Social Welfare Report, which confirmed that both parents have always had de facto shared care and control of the children and that the children were accustomed to their family make-up. The Court expressed it would not be in the children's best interests if the application was unsuccessful, as the children are close to each other and to both mothers. As there was no dispute between both parents in their co-parenting relationship, the Court was satisfied that the Respondent be granted guardianship rights, joint custody, and shared care and control.
This case comes as a victory for the LGBTQ community, as same-sex parents may now apply to have equal parental rights over their newborn children. This follows on from the CFI's decision on 18 September 2020 in respect of Ng Hon Lam Edgar v. Secretary of Justice and Nick Infinger v. Hong Kong Housing Authority, whereby the CFI ruled that the exclusion of same-sex married partners' right to claim as "surviving spouses" under the Intestates' Estates Ordinance and the Inheritance (Provision for Family and Dependents) Ordinance constituted unlawful discrimination on the grounds of sexual orientation. The CFI's decision marks yet another milestone in the LGBTQ community's fight for equality.
Singapore perspective
Singapore does not recognise same-sex marriage and children are only recognised as legitimate if they are born in a recognised marriage. As such, same-sex couples who have children through alternative reproductive routes face a constant uphill battle, as they have no legal rights to these "illegitimate" children.
Singapore's Constitution states that the biological mother of an illegitimate child is treated as their parent for the purposes of acquiring citizenship. As reproductive assistance services in Singapore are not permitted to provide or facilitate surrogacy services and single women or women in same-sex relationships are not permitted to receive intrauterine insemination, the biological mother of children conceived via alternative reproductive routes are, more often than not, a non-Singapore citizen. Consequently, it is very difficult for same-sex parents to be granted legal parental rights over their children in the absence of a dispute between the parents.
To support citizenship applications for their children, same-sex couples have applied to the Family Court for custody, guardianship, and adoption orders in the face of multiple failed attempts to secure long-term arrangements with Singapore's Immigration and Checkpoints Authority ("ICA"). However, the Family Court has definitively ruled that custody orders for a biological gay parent for his son who was conceived through surrogacy are unnecessary and that its jurisdiction should not be invoked in matters concerning the ICA. With respect to non-biological parents (i.e. the other partner in the relationship), the Family Court has also declined to appoint them as the child's guardian or to award both same-sex parents joint custody or shared care and control.
Adoption is only possible for biological parents, which means that non-biological parents have no rights to the child. Furthermore, it is not permitted for a man to adopt a female child. To date, there has only been one successful case of adoption by the biological father of his son. However, the Court has made it clear that while the applicant did not set out to violate public policy in Singapore, which does not permit the conception of a child through surrogacy and in a same-sex family unit, it would infer a future applicant's similar pursuit of an adoption order in the same manner as intending to violate public policy, which would warrant the Court to weigh against the approval of an adoption order in the future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
