Family Law and Administrative Law – NF v R: Landmark ruling for shared motherhood and children parented by female same-sex couples
In NF v R [2023] HKCFI 2233, the High Court granted novel relief which recognized a child’s second female parent by making a declaration recognizing a non-gestational female parent as a parent “at common law”.
Background
B and the respondent (“R”) are both females and have been in a long term same-sex relationship. As a couple, they arranged to conceive the child (“K”) by a medical procedure which had biological involvement from both partners. The medical procedure is known as reciprocal in vitro fertilization (“RIVF”).
Under this procedure, an egg was extracted from R, which was fertilised with sperm from an anonymous male donor, and the resultant embryo was then transferred to B’s uterus. The RIVF procedure was carried out in South Africa. The male donor had renounced his parental rights and obligations. B gave birth to K. Legal opinion from a South African attorney was provided, setting out the position under South African law as to the respective status of R, B and the male donor.[1]
An application was brought for a declaration that R, who provided the egg for his birth, be declared K’s “parent” (“the application” or “the Declaration”). B, who was K’s gestational mother, was already stated to be K’s “mother” on his birth certificate. The application was brought under section 6 of the Parent and Child Ordinance, Cap. 429 (“PCO”) which provides, as to declarations of parentage, inter alia that
“[a]ny person may apply to the court for a declaration that … a person named in the application is or was in law his parent …”.
R consented to the relief sought.
B and R have continued to raise K together as a family. The Court accepted that “There is no dispute that a “family” exists among B, R and K and with the extended families of B and R”.
The Secretary for Justice (“SJ”) opposed the application.
The Official Solicitor (“OS”) was appointed as an amicus to address the court on issues of law, with a special focus on the interests of K. The OS supported the application.
Analysis
Provisions of the Parent and Child Ordinance, Cap. 429
Various provisions of the PCO arose for discussion, particularly including:
• Section 6, which provides for declarations of parentage, legitimacy or legitimation.
• Part V which provides for determination of parent where birth or pregnancy results from medical treatment. Part V consists of: –
○ Section 9 which provides for meaning of mother where birth or pregnancy results from medical treatment. Section 9(1) states: “The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be regarded as the mother of the child.”
○ Section 10 which provides for meaning of father where birth or pregnancy results from medical treatment.
○ Section 11 which provides for effect of sections 9 and 10.
○ Section 12 which provides for parental orders in favour of gamete donors in certain circumstances. Section 12(1) grants the power to make “an order providing for a child to be regarded in law as the child of the parties to a marriage (referred to in this section as the husband and the wife )…”
Legal Arguments
One of the main issues was whether the court should make the Declaration under section 6 of the PCO (“the PCO issue”), having regard to: –
(1) the relevant principles of statutory interpretation;
(2) the relevant constitutional and fundamental rights of K, B and R; and
(3) the best interests of K.
Further issues included whether the court had power under its inherent parens patriae jurisdiction to make the Declaration and if so, should it do so; and whether the court should make the Declaration sought and/or some other relief?
The PCO issue formed the main focus of the Court’s judgment and reasoning.
On the PCO issue the SJ relied on sections 6 and sections 9-12 in Part V of the PCO (“Part V”) to argue that “parents” should be construed as meaning a “male father” and a “female mother” and no third person, and furthermore was of the view that the present case was a birth resulting from medical treatment and Part V / section 9(1) of the PCO would then apply. The argued effect was that: (1) only the gestational mother and no other woman would be regarded as mother, and (2) to the further effect that a genetic parent such as R is excluded.
The OS submitted that RIVF was an advancement in medical treatment and Part V does not apply to the present case. The approach suggested by the OS was to determine the application on ordinary principles of statutory interpretation alone, without going into the complex constitutional issues raised by NF and R in their submissions. The OS suggested that the Court can make a declaration that R is the “genetic parent” of K.
Submissions put forward by NF and R for consideration relied on various fundamental rights relevant to the exercise of statutory interpretation, including: –
(1) the provisions of the Basic Law (“BL”) and Hong Kong Bill of Rights Ordinance, Cap. 383(“BOR”)
a. protecting privacy and family rights; and
b. providing for equality and prohibiting discrimination on the grounds of sex, birth or other status; and
(2) children’s rights under the Convention on the Rights of the Child.
The submissions of NF and R, supporting (or, in the case of R, consenting to) the application, raised inter alia: –
(1) The absurdity and discriminatory effect of the construction put forward by the SJ, as such construction would deprive K of a second intended parent merely on the basis that she is also female;
(2) That the SJ’s construction would undermine the purpose of PCO in respect of equality for children, by requiring a construction that excludes the possibility of a second intended parent merely because she is also female;
(3) Questioning the applicability of Part V as RIVF was not known to the legislature at the time PCO was enacted;
(4) The ordinary and common law meanings of the term “parent”; and
(5) That the government ought to justify the differential treatment to satisfy the test of proportionality, and it is open to the Court to give a remedial interpretation to PCO.
The Court’s Reasoning
The Court considered the definition of “parent” under section 6 of the PCO, the difference between natural parents and legal parents per Baroness Hale in Re G[2], and the common law definition of “parent”. Crucial observations of the Court included: –
(1) The view that the words “in law his parent” allow the Court to track (and not fossilise) the concept of “parent” as recognised under prevailing common law.
(2) The essential purpose of section 6 of the PCO “is to afford equal protection to all children without discrimination on the grounds of their birth or the marital status of their parents”, and applying the statutory section “the light of the common law norms then prevailing” is in line with such essential purpose.
(3) “At common law, subject to the presumption of legitimacy, the genetic father is the legal father, irrespective of the manner of conception, by sexual intercourse, assisted conception or otherwise”, but “As for motherhood, prior to the advancement of modern techniques of scientifically assisted reproduction, genetics and gestation could not be separated”.
(4) Examination of the three categories of parenthood in Re G (genetic parenthood, gestational parenthood, and social and psychological parenthood) and “In terms of women”, the Court agreed “that the first 2 categories identified by Baroness Hale [in Re G] can in principle be regarded as parents at common law before intervention of PCO”.
(5) Part V could not be said to be inapplicable to the present case, inter alia for the following reasons: –
(i) As a special statutory provision, it prevails over the more general section 6.
(ii) Part V applies to births resulting from “medical treatment” and is technology neutral.
(iii) Part V does not only apply to infertile heterosexual couples/partners. Section 9(1) does not say that its application is limited to infertile couples/partners. The categories of women covered by this subsection includes a gestational mother who is a wife or partner in a same sex marriage (like B).
(iv) The definition of the Chinese term 父母 makes it clear that a person has to be a 父 or 母 before he can be declared a parent.
(v) Part V precludes having a second female as parent, particularly having regard to sections 9(1)[3] and 11.[4] This has bearing on the definition of “parent” in section 6, as an ordinance must be read as a whole.
(vi) At common law, there is no legal impediment to recognizing the genetic link of a woman, but whether a genetic link will give a person the legal status of a mother or parent under the PCO is a policy decision for the legislature.
(vii) Same-sex parentage is not covered by the PCO, and any change in this respect ought to be done by legislation. The legislative changes in the UK were cited as a relevant example.
The Court noted that the aforesaid observations supported the SJ’s interpretation of what “parent” means under section 6 and Part V (i.e., that R falls within section 9(1) and cannot be regarded as a mother/parent of K).
However, the Court went on to find that the SJ’s interpretation violated the legislative purposes of the PCO, which included the following: –
(1) To reduce legal disabilities associated with illegitimacy;
(2) To provide equality at law for all children and to protect them against discrimination regardless of their parents’ marital status; and
(3) To give effect to Article 20 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (entitlement to protection as a minor, without any discrimination as to his birth) and BOR 22 (equal protection of the law without any discrimination on the ground of birth or other status).
The Court also emphasized the need to adopt an interpretation that avoids absurdity, in particular noting that: –
“The Court should be astute to the changing world where people build families in different manners other than through a married or heterosexual relationship. The Court should also recognize that medical treatment is to help people to produce children that they cannot do without medical aid.”[5]
“The focus in this case is on K’s Class, targets suffering from discrimination, who were not the creator of difficult issues on parentage.”[6] (emphasis added)
Finally, the Court held that whilst it had “every sympathy for K’s Class who is being discriminated, the lacuna in legislation has to be filled by the Legislature”,[7] and stated that “Doing the best I can, I can only hold R to be a “parent at common law”.” [8]
The Decision
The Court held that R is a parent of K at common law under the “any other relief” limb of the originating summons. [9] Such declaratory relief was not granted as a statutory declaration made under section 6 of the PCO.[10]. In coming to the decision to grant declaratory relief, the Court found inter alia that K (and K’s class) had been discriminated against[11], and furthermore recognised that the relevant legislative intent which invoked the rights of children (BOR 20)[12] and the right to equality (BOR 22)[13] had been violated. The Court went on to explore the parties’ submissions on the scope of its parens patriae jurisdiction, observing the function of such jurisdiction being to take care of those who are not able to take care of themselves.
Significance
This case is another crucial change developing the law for both children of same-sex couples and their parents. The case recognizes the need to align the legal status of the child’s identity to the reality of the child’s family life and the challenges faced by such families in seeking to protect the parent-child relationship for the benefit of children of same-sex couples.
The approach of the Court in this ruling also demonstrates a willingness to adopt novel approaches in this area to accommodate societal changes and the reality of different types of family life, notwithstanding the lack of legislative changes in the area of same-sex rights. This case is also one of the few cases exploring the scope of the Court’s powers under its inherent parens patriae jurisdiction. The Court took the view that its parens patriae jurisdiction cannot be invoked to declare a person as a “parent” when PCO cannot do so, and that there was no reason for the Court to invoke such jurisdiction given that K was not in danger but was living happily with B and R.
The case and its significance has been reported in the local media.
The judgment can be found here.
Key takeaways from NF v R [2023] HKCFI 2233, handed down on 31 August 2023: –
• The High Court for the first time granted a declaration recognizing a child’s second female parent by making a declaration recognizing the child’s non-gestational female parent as a parent “at common law”. The child’s gestational mother was already recognised as a parent under Hong Kong law prior to the application in the case.
• The declaration made by the Court declares that R is a parent “at common law” under the “any other relief” limb of the originating summons, rather than a statutory declaration under s.6 of the Parent and Child Ordinance. The declaration of parent “at common law” is a novel relief. The Court declined invoking its parens patriae jurisdiction to grant the declaratory relief.
• The development in NF v R contributes to the evolving area of law regarding same-sex relationships in the family/parental context. Relevant recent developments include:
○ Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, handed down days after NF v R, in which the Court of Final Appeal declared the lack of alternative framework for legal recognition of same-sex partnerships unconstitutional.
The Appellant’s legal team included Hectar Pun, SC and Anson Wong Yu Yat. Case commentary available here.
○ AA v BB [2021] 2 HKLRD 1225, in which following the separation of a same-sex female couple who had raised children together, the Court of First Instance granted guardianship and joint custody to the non-biological party of the separated couple.
The Respondent’s legal team included Isabel Tam. Case commentary available here.)
Representation
Isabel Tam, instructed by Withers, was part of the Respondent’s counsel team.
[1] In gist, under South African law, B and R are recognized as parents whilst the anonymous male sperm donor has no status or parental rights.
[2] Re G (Children) (Residence: Same-sex Partner) [2006] 1 WLR 2305
[3] Section 9(1) provides: “The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be regarded as the mother of the child.”
[4] Section 11, on the effect of sections 9 and 10, provides:
“(1) Where by virtue of section 9 or 10 a person is to be regarded as the mother or father of a child, that person is to be regarded in law as the mother or, as the case may be, father of the child for all purposes.
(2) Where by virtue of section 9 or 10 a person is not to be regarded as the mother or father of a child, that person is to be regarded in law as not being the mother or, as the case may be, father of the child for any purpose.
(3) Where subsection (1) or (2) has effect, references to any relationship between 2 persons in any Ordinance, instrument or document (whenever enacted or made) shall, unless the contrary intention appears, be read accordingly.”
[5] Judgment §127
[6] Judgment §129
[7] Judgment §145
[8] Judgment §146
[9] Judgment §161
[10] Judgment §161
[11] Judgment §145
[12] “(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. (2) Every child shall be registered immediately after birth and shall have a name.”
[13] “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Isabel Tam
Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on public law, building management and property law, family law, commercial law and regulatory matters. Her experience in family law includes: children matters, ancillary relief, anti-suit injunction, and harassment-related proceedings. Recent highlights of Isabel’s experience include AA v BB [2021] HKCFI 1401, which has been hailed as a landmark victory for the LGBTQ community, granting parental rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured parental rights for her including guardianship and joint custody. Visit Isabel’s profile for more details. |
This article was first published on 20 October 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.