Hong Kong judge rules in favor of lesbian couple's parental recognition in landmark case

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HONG KONG (AP) — A Hong Kong judge ruled Tuesday in favor of a lesbian couple's parental recognition of their son born through reciprocal in vitro fertilization in a landmark case.

The couple, identified as B and R, underwent the medical procedure in South Africa in 2020 after getting married in the country. During the treatment, an egg was extracted from R and was fertilized with sperm from an anonymous male donor to create an embryo, which was then transferred to B's womb. The boy was born in Hong Kong in 2021, but only B was listed as his mother on his birth certificate.

Judge Russell Coleman's ruling over the judicial challenge was a step forward for the LGBTQ+ movement in a city that does not endorse same-sex marriages but is working toward a framework to recognize same-sex partnerships.

Coleman said in a written judgment that parts of Hong Kong's Parent and Child Ordinance “significantly impede” the boy from representing his relationship with R to the outside world.

He agreed that if one gets to an analysis, “a reasonable balance is not struck between the societal benefits of the measure and the inroads made into the rights of the affected individuals.”

“The constitutional challenge is made good,” he said.

He added that although he found a proper basis for a directive to address the matter, he stopped short of handing that down because he hoped to first hear further arguments on what the relief should be.

It is unclear how many couples would benefit from Coleman’s ruling.

Law firm Patricia Ho & Associates, which represents the applicant, said in a statement on LinkedIn that it welcomed the court's recognition of the rights of family and children as well as the rights to equal protection. It said it is helpful to the boy that the court accepted that such rights have been infringed, and they look forward to seeing the full picture on this case when the court determines a remedy.

In a separate court ruling in 2023 concerning B and R, Judge Queeny Au-Yeung said that while R does not fall within the statutory scheme, she declared that R is a parent of the boy “at common law." The judgment cited a legal opinion noting that the couple are recognized as his parents under South African law.

In parts of Europe, court rulings have already granted same-sex couples better legal parental recognition in recent years.

The European Court of Justice in 2021 ruled that a child with two mothers certified in one EU nation must also be recognized by the other EU members as such. In May, Italy’s Constitutional Court ruled that two women can register as parents of a child on a birth certificate though the country has maintained strict restrictions on IVF and a ban on surrogacy since 2004.

Meanwhile, Hong Kong lawmakers are set to resume their debate Wednesday on proposals to allow residents who have already formed unions overseas to register their partnerships locally.

The government bill emerged from one of the legal victories in recent years that expanded rights for same-sex couples. If passed, eligible couples will be able to secure rights on medical and after-death matters. But its passage is uncertain given fierce opposition in the legislature.