Advances in medical capability meant that a boy in Hong Kong ended up with three parental figures. This raised new legal issues that senior people in the legal sector tried to sort out—but initial success was overturned by an unexpected judgment. Top legal mind Henry Litton tells the story. This is the first of a two-part report.
INTRODUCTION: FAMILY RELATIONSHIP UNKNOWN TO MANKIND
In a case listed in Hong Kong law as NF & R [HCMP 447/2022, judgment 21/8/2023], the Hon. Madam Justice Queeny Au-Yeung Kwai-yue, on an originating summons, faced the task of giving judicial recognition to a family relationship hitherto unknown to humankind.
This came about as a result of a new medical procedure called “reciprocal in vitro fertilization” ( RIVF ) where an egg, taken from the ovary of one woman, is artificially impregnated by the sperm of an anonymous male donor, and then implanted in the womb of another woman.
The procedure is not as simple as it sounds. And there was no certainty of success. For instance, a hormonal drug called Lucrin had to be administered to try to synchronize the menstrual cycles of the two women. And another drug had to be given to the second woman to thicken the lining of her womb.
No difficulty arises as to who is the mother of the child born through this process: the second woman who bore the pregnancy to term, gave birth, suckled the baby at birth, etc., is clearly the mother.
But what of the first woman who has a direct genetic link to the baby?
BIRTH CERTIFICATE
The statutory form in the Birth and Death Registration Ordinance, Cap 174 (BDRO) ( Form 1 in Schedule 2 ) provides space for one mother and one father as parents of the baby; there is no recognition of parenthood arising from RIVF as regards the woman who provided the egg from which the baby was born.
Furthermore, in the Hong Kong vernacular “parent” is simply “Fu / Mo” (Father/ Mother): there are no everyday words to describe the relationship between the biological mother and the child. And yet knowing one’s descent is important: as a child grows to adulthood things like citizenship, nationality, succession, ancestral identity, etc., may become relevant in the person’s life.
FACTS OF THE CASE
R and B, lesbians, had lived together as a couple for some time.
At the time of the High Court hearing R, a Hong Kong Chinese woman, was in her late 30s. She had a university degree and was in gainful employment. B, originally from South Africa, was in her 40s. Both were Hong Kong permanent residents.
In 2019 they entered into a same-sex marriage in South Africa (recognized as such by South African law but, of course, not in Hong Kong).
In late-2020 they underwent RIVF in South Africa whereby R’s egg, fertilized with sperm from an anonymous male donor, was implanted in B’s womb. They returned to Hong Kong where, in 2021 K, a baby boy, was born.
Thereafter, as the judge found, B, R and K lived together as a family. The judge also found that K was “cared for and financially provided for by B and R”.
As K grew he formed a close bond with the extended families of both B and R.
This was, of course, an important aspect of his upbringing, for it must have been in those relationships ( apart from his home environment ) that vocabulary developed on the part of the child to identify his relationship with his two mothers. Were they known, for instance, by family nicknames? The judgment was silent in that regard.
DECLARATORY RELIEF
Be that as it may, the legal proceedings brought by R as K’s “Next Friend” were for declarations to give legal recognition to R’s genetic relationship with K.
Parent and Child Ordinance, Cap 429 (PCO)
In the background of this case is the PCO: an Ordinance passed in March 1993 to deal principally with issues arising from surrogacy. Particular focus fell on section 6 which empowered the court to make declarations of parentage, and Part V of the Ordinance which dealt with determination of parentage in medical treatment cases. But all this was in the context of heterosexual couples, not lesbian couples, which raise entirely different issues.
There was scant examination of RIVF in Au-Yeung J’s judgment and how and where the procedure first developed; but, as far as can be ascertained, it was simply unknown in Hong Kong in 1993 when the PCO was passed into law.
Counsel for K argued strenuously for K’s “parentage” with R to fall within the declaratory relief in s.6 and Part V of the Ordinance, but this was, quite rightly, rejected by Au-Yeung J. The scheme of the Ordinance simply did not allow it.
Au-Yeung J’s declaratory judgment
The judge concluded as follows:
“160: It has been proved that B & R are married under South African law and are in a committed relationship. They intended to be co-parents and used RIVF to give birth to K. They have co-parented K.
“161: In the above analyses, I have referred to R as a genetic parent to show how she is related to K. However, it is rather disrespectful to state that she is a ‘genetic parent’ in ordinary life. I cannot imagine K introducing her to others in that manner. The Court cannot make a declaration under section 6(3) because R does not fall within the statutory scheme. Doing the best I can, I make a declaration that R is a parent of K at common law under the ‘any other relief’ limb of the originating summons”.
This declaration goes into public record and is a clear recognition of the intimate relationship between K and his genetic forebear on the feminine side.
It is possible that, given time, and perhaps more cases of this nature occurring, the local vernacular would catch up with the legal recognition of this relationship: or maybe not, given the rarity of such event. Until such time, a birth certificate would continue to show the birth mother as “mother” and the column marked “father” would remain blank. So be it: there are numerous cases of this sort, the most prominent perhaps being the case of single mothers with babies.
That, as the judge rightly said, was the best she could do, demonstrating the flexibility of the common law, when rightly used.
Is this the end of the story?
Not so. An unexpected turn of events would dramatically change the outcome.
CLICK THIS LINE to read the second part of the story.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.