Legal Recognition of Same‑Sex Parenthood in Hong Kong: Adoption, Surrogacy, and RIVF Rights Explained

Introduction

Legal recognition of same-sex parenthood is a still developing area in Hong Kong. Same-sex couples and their children face significant challenges and discrimination in Hong Kong under the application of outdated laws that fail to account for the reality of modern family structures. This leaves children of non-traditional families in positions of vulnerability and legal uncertainty. However, a number of recent landmark decisions give hope that the tide is starting to turn towards affording protection to all families and their children in Hong Kong.

Legal Parenthood and the law

Under Hong Kong law, by default a child’s gestational carrier is considered to be their mother, and if the mother is married, her husband is considered to be their father.

However, it is well-established in both Hong Kong and UK case law that the notion of parenthood is not limited to genetic or gestational connections. Parenthood also fundamentally encompasses both social and psychological bonds. The notion of a “psychological parent” as a form of natural parent, as distinct from but equal to genetic and gestational parents, was notably addressed by Baroness Hale in Re G (Residence: Same-sex Partner) [2006] 1 WLR 2305, at §§35-37:

37. “… there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.”

Regardless of how it is recognised, legal parenthood confers vital rights, responsibilities, and protections, the primary focus of which should always be the child’s best interests. However, the lack of application of these rights to modern family structures, including those formed by same-sex couples, have necessitated numerous applications for parental orders and legal challenges.

Same-sex Adoption

Under the Adoption Ordinance (Cap. 290) (“the AO”), adoption in Hong Kong is open to single individuals or joint applicants who are spouses. Adoptions in Hong Kong are overseen by the Social Welfare Department (“SWD”) and three accredited NGOs. The AO does not define the word “spouse.” However, it has been the ongoing practice of the Director of Social Welfare to limit its interpretation to opposite-sex spouses and to exclude same-sex married couples from joint adoption rights. Under this interpretation, parties to a same-sex overseas marriage are also unable to adopt their spouse’s child in a second parent adoption under the AO. For same-sex couples in Hong Kong, this leaves only the option of one party to the marriage applying to adopt as a sole applicant.

The decision in B v B & another [2024] HKCFI 3356 saw the High Court approve the adoption of a child by a married gay man as a sole applicant. After the Family Court Judge transferred the case to the Court of First Instance, Justice Au-Yeung affirmed that the child’s best interests override concerns about the parent’s sexual orientation. It is worth noting that nothing in the AO suggests that a sole applicant’s sexual orientation can or should impact their eligibility for adoption.

The Director’s interpretation of the AO and the resulting differential treatment of same-sex and opposite-sex spouses leaves the non-applicant spouse and the adopted child in the position of legal strangers. This is despite whatever the factual reality of their parent-child relationship may be. The adoptive parent and child are left lacking enforceable parental rights, including orders for maintenance for the child against the non-applicant spouse. This leaves the child and the family in a vulnerable position. Alternative legal protections such as guardianship or wardship, both of which are revocable and cease once the child attains majority, cannot permanently cure the denial of legal recognition of the parent-child relationship.

Surrogacy for Same-sex Couples

Hong Kong’s legal framework for surrogacy is governed by the Human Reproductive Technology Ordinance (Cap. 561) (“the HRTO”). Hong Kong law heavily restricts surrogacy arrangements. Commercial surrogacy is prohibited entirely with the elements of the related offences set out in section 17 of the HRTO. Altruistic surrogacy, while permissible, lacks a clear legal framework and is available only to married opposite-sex couples. Altruistic surrogacy arrangements are also unenforceable in Hong Kong, with the gestational mother considered to be the child’s legal mother until a parental order is made in favour of the commissioning parents.

As a result of these restrictions under the HRTO, many same-sex couples turn to surrogacy arrangements overseas. However, the prohibitions on commercial surrogacy arrangements in the HRTO have extraterritorial effect. This means that an offence is considered to have been committed in Hong Kong regardless of where the surrogacy arrangement is initiated or carried out.

Once back in Hong Kong, same-sex commissioning parents have limited and challenging options available to them to secure legal recognition of their relationship with their child.

The Court has no statutory power to grant a parental order in surrogacy except under section 12 of the Parent and Child Ordinance (Cap. 429) (“the PCO”) which expressly excludes same-sex couples.

The options that remain to same-sex couples or commissioning parents who are otherwise excluded from applying under s12 of the PCO are:

1. obtaining an adoption order in the country in which the child was born to the surrogate mother; or
2. applying to the Hong Kong Court for approval to pursue a private adoption of the child, that is, out with the normal adoption process conducted by SWD. However, only one commissioning parent can adopt and be legally recognised as the child’s parent.

Both are expensive and time-consuming processes, and legal advice should be taken in Hong Kong and any other relevant jurisdiction for a comprehensive understanding of the procedures and risks before a path is chosen.

Reciprocal IVF (“RIVF”) and Parental Rights

RIVF is a procedure by which one woman carries their partner’s egg in pregnancy, fostering biological parenthood of a child for both partners in a female same-sex couple. However, with Hong Kong law only recognising the gestational mother and her husband, if any, as the child’s legal parents, the partner who is the genetic mother of the child is not recognised in legal parenthood. Like with surrogacy, the paths available to legal parenthood are limited. Adoption is not an option, unless to the exclusion of the gestational parent’s legal rights, and for the reasons above, same-sex couples are excluded from applying for parental orders under section 12 of the PCO.

The exclusion from birth registration of genetic parents in same-sex couples who have children by RIVF was recently successfully challenged in K (an infant) by his next friend, R v The Secretary for Justice [2025] HKCFI 1974 (“the K decision”). Justice Coleman found the differential treatment of children born through RIVF to lesbian couples to be unconstitutional and that it failed to recognise the existence of same-sex families and the use of RIVF to have children. The Court deferred the question of form of relief for further argument.

The couple had previously applied for a declaration under the PCO that both parents should be legally recognised as the child’s parents. In the decision, the court granted recognition of the non-gestational parent in  as a “parent at common law,” reflecting the evolving understanding of family but still without conferral of full legal rights and benefits. The Court did however observe that it “…should be astute to the changing world where people build families in different manners other than through a married or heterosexual relationship.”

Conclusion

Comprehensive reform of child protection laws in Hong Kong and their application to children of modern family structures is long overdue. Until then, same-sex couples in Hong Kong must navigate a complex and often inequitable legal landscape, relying on costly litigation and uncertain outcomes to secure recognition of their parental rights and more to the point, the rights of their children.

While recent decisions have made some progress towards aligning the law with now well-established diverse family forms, significant gaps remain, especially concerning joint adoption rights for same-sex couples and clear parentage recognition in surrogacy arrangements. This leaves children born into such families in vulnerable positions. Justice Coleman astutely observed in the K decision that:

193. “…For sure, heterosexual parents have no monopoly on good parenting, and it is as a matter of generality difficult to understand why same-sex parents should somehow prove that their parenting is in the best interests of the child, when the vast majority of heterosexual parents do not have to jump any such hurdle.”

For now, court applications will continue to be necessary and as Hong Kong family lawyers, we are committed to our clients and to continue our work for them towards equal protection and legal certainty for themselves and their children.

Joanne Brown & Elizabeth Seymour-Jones

If you have any questions, please contact Joanne Brown:

Joanne Brown

Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.