Recognition of rights for same-sex partners and their children in Hong Kong02Jul2021
In a landmark ruling by the High Court last month the non-biological mother of two children born to her former same-sex partner was granted guardianship rights, joint custody and joint care and control of the children.
The former couple had the children with the assistance of a sperm donor. The eldest child was born in Australia with both mothers listed as the child’s legal parents on his birth certificate. The younger child was born in Hong Kong where only a child’s birth mother and her husband or the child’s biological father are able to be listed as his legal parents on his birth certificate. As a result, only the younger child’s biological mother is listed on his birth certificate.
Justice B Chu of the High Court made a ruling (by consent) that the children be made wards of the Court, the non-biological mother of the children be made a guardian, and that both mothers of the children be granted joint custody and joint care and control of them. Following the making of the guardianship and custody orders, as there was no dispute between the parties the children were de-warded.
Prior to the ruling in this case, non-biological parents of children (not recognised as legal parents of their children) could face immense difficulties in the event of the breakdown of their relationship with the children’s legal parents in respect of rights of custody, care and control and access. They also faced the prospect of (previously) potentially insurmountable implications in the event of the death of the biological parent which would leave them with no legal rights over their children.
Tanner De Witt welcomes this important recognition of the rights of same-sex parents and their children in the absence of rights of adoption and recognition of legal parentage for both parties to same-sex parent couples in Hong Kong.
Joanne Brown and Elizabeth Seymour-Jones
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