Nf v. R

HCMP 447/2022

[2023] HKCFI 2233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLEANOUS PROCEEDINGS NO 447 OF 2022

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J U D G M E N T

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A.  UNDISPUTED BACKGROUND

1.This is an application by the next friend (“NF”) of a baby at the time of the application (“K”) for a declaration that the respondent (“R”), who provided the egg for his birth, be declared K’s “parent”. NF is K’s gestational mother. The application calls for interpretation of section 6 of the Parent and Child Ordinance, Cap 429 (“PCO”) as to whether R is a “parent”. Alternatively, it calls for exercise of the court’s power under its inherent parens patriae jurisdiction. In all reference to sections of an Ordinance below, they will be to PCO, unless otherwise specified.

2.B and R are a female same sex couple and are permanent residents of Hong Kong. B is a XXXXXXXX by origin and is now in her 40s. She has ordinarily resided in Hong Kong since early XXX. R is now in her late 30s. She was born in XX to Hong Kong Chinese parents. She had university education and is in the XXXXXXXXXXXX industry. She is currently working in XXXXX and living with B and K.

3.In XXXXX, B met R in Hong Kong and have lived together as a couple since XXXX. They married in South Africa on XXXXXXX 2019.

4.In late 2019, B and R started discussing the idea of having a child of their own. In late 2020, B and R underwent in South Africa a medical procedure known as reciprocal in vitro fertilisation (“RIVF”) or receiption of oocytes from partner (“ROPA”). By that procedure, an egg was extracted from R, which was fertilised with sperms from an anonymous male donor to create an embryo, which was then transferred to B’s uterus. The male donor had renounced his parental rights and obligations during the donation process.

5.B carried the embryo to term. On XXXXXX 2021, K was born in Hong Kong.

6.On XXXXXXX 2021, B and R had attempted, at the Births and Deaths Registry to declare themselves both to be K’s parents. However, only B was stated to be K’s “mother” on his birth certificate. The spaces for entering the name and surname of the father on the birth certificate are marked with asterisks.

7.On XXXXXX 2022, K’s own Hong Kong permanent resident status was established by virtue of his birth to B.

8.B, R and K have lived together as a family. K is loved, cared for and financially provided for, by B and R. K has formed a close bond with the extended families of both B and R.

9.During the 5^th wave of the Covid pandemic in Hong Kong, B and R decided temporarily to take K to stay in South Africa for at least 12 months. R’s Hong Kong employer permitted her to work remotely. Since about XXXXXX 2022, B, R and K have stayed in South Africa.

10.By an originating summons filed on 21 April 2022 as amended on 30 May, NF seeks a declaration that, in law, R is K’s “parent” (“the Declaration”).

11.Pursuant to a DNA test report dated 7 June 2022, it is confirmed that R is the biological parent of K.

12.The International Social Investigation Report dated 21 November 2022[1] (“the ISIR”) is supportive of B, R and K forming a happy and healthy family:

(1)  Being in such a family is in the best interests of K. The family’s home is conducive to his upbringing. K is interacting with everyone within the family, which has given him a sense of stability. The family also has a good relationship and friendly communication with the extended family members. K has been taken care of holistically (§12).

(2)  As between B and R, they have attended to the minor and have shared roles. They support each other with daily chores and ensure that K is taken care of (§1(i)).

(3)  R is financially supporting the family and her salary is enough for their daily living (§1(i)).

13.The legal opinion dated 13 December 2022 from a South African attorney confirms the following facts as a matter of South African law:

(1)  Both B and R are recognized under South African law as the parents of K with automatic parental responsibilities and rights in relation to K without the requirement for further application to the South African courts (§§50.1 and 50.2); and

(2)  The anonymous sperm donor acquires no status, parental responsibilities or parental rights under South African law. (§50.3)

B.  THE PARTIES’ RESPECTIVE CASE

14.K does not seek to have R declared to be a second “mother” or a “father” but a “parent”. NF (represented by Mr Kat SC and Mr Shapman Marwah) submits that having proper regard to the legislative history, adopting the “always speaking” principle of statutory construction to accommodate societal and scientific change, adopting a child‑focused and rights-based approach to statutory interpretation, and consistent with the best-interests principle, the Court should declare R to be K’s parent as a matter of law pursuant to section 6 of PCO. NF relies on provisions of the Basic Law (“BL”) and Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”) which give legal equality for all children, protect privacy and family rights and preclude discrimination on the grounds of sex, birth or other status; she also relies on the child’s rights under the Convention on the Rights of the Child. If the Court is against NF on the definition of parent in PCO, she invites the Court to exercise its inherent parens patriae jurisdiction to make the Declaration.

15.R (represented by Mr Azan Marwah, Ms Isabel Tam and Mr Peter Zhu on pro bono basis) purportedly holds a neutral position and consents to the relief sought. She, however, has filed lengthy submissions in support of NF and of the Official Solicitor (“OS”) case and suggests that “parent” should be interpreted in the broadest sense. In part, her written submissions advance her own “case”.

16.The Secretary for Justice (“SJ”) (represented by Mr Stewart Wong SC, Ms Leona Cheung and Ms Hikki Wong) opposes the application. Referring to sections 6 and sections 9-12 in Part V of PCO (“Part V”), he contends that on a proper construction of PCO, “parents” mean a “male father” and a “female mother” and no third person. In cases where birth resulted from medical treatment, Part V applies. Only the gestational another and no other woman would be regarded as mother. The genetic parent in the position of R is thus excluded. There is no reason to invoke the parens patriae jurisdiction of the Court as K is not in danger and there is no legislative lacuna.

17.NF disputes the applicability of Part V as RIVF was not known to the Legislature at the time PCO was enacted. She challenges SJ’s stance as ignoring the open character of the ordinary and common law meanings of the term “parent”, as a non-gendered and non-marriage dependent term. It undermines the purposes of PCO to treat children with equality by a construction that excludes the possibility of a second intended parent merely because she is also female. The Government is to provide justification and meet the test of proportionality, and the Court should give a remedial interpretation to PCO.

18.OS (represented by Mr Abraham Chan SC and Mr Zenith Chan) has been appointed as an amicus to address the court on issues of law, with a special focus on the interests of K. OS supports NF’s application. As Mr Chan rightly points out, the reality is that, unless either a narrow literalistic approach or an entirely result-driven one (whether for or against the relief sought, and be it for personal or policy reasons) is wrongly taken, the Court is required to navigate some difficult legal terrain. He agrees with NF that RIVF was an advancement in medical treatment and Part V does not apply to the present case. He suggests that the Court can make a declaration that R is the “genetic parent” of K. OS also considers that it is reasonably arguable that the Court has power under its inherent parens patriae jurisdiction to make the Declaration.

19.The parties’ positions are common in that this case is not about same-sex marriage or partnership. There is no dispute that a “family” exists among B, R and K and with the extended families of B and R. Nobody consider that it will be against K’s best interests to grant the Declaration.

C.  ISSUES

20.The parties have agreed upon the following issues:

(1)  Should the court make the Declaration under section 6 having regard to:

(a)  the relevant principles of statutory interpretation;

(b)  the relevant constitutional and fundamental rights of K, B and R, and

(c)  the best interests of K

(“the PCO issue”)?

(2)  Alternatively, does the court have power under its inherent parens patriae jurisdiction to make the Declaration and if so, should it do so (“the parens patriae jurisdiction issue”)?

(3)  In view of the court’s decision on the issues above, should the court make the Declaration sought and/or some other relief (“the relief issue”)?

21.In the course of the submissions, NF confirms that she is not seeking to strike down any provision of PCO. However, she contends that if it is found that PCO derogates from constitutional rights, the Government needs to provide justification and satisfy the tests on proportionality, and the Court should apply remedial interpretation: HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, §29.

22.I am afraid NF cannot do so. I agree with SJ that it is one thing to say that interpretation of legislation has to be done in a manner consistent with constitutional provisions. It is another to say that the Government has to provide justification on certain matters. This is because the only relief sought in this case is the Declaration. Unlike eg Infinger v The Hong Kong Housing Authority [2020] 1 HKLRD 1188, §9; and Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, §§8 and 13, which NF relies on, NF has never sought to have any particular provision of PCO struck down as being unconstitutional. If it was her intention to do so, she should have gone down the judicial review channel. Nor can NF rely on the claim for “any other reliefs” to seek to argue such substantial issues as justification and proportionality.

23.If an applicant is unable clearly to set out his/her grounds of review in the Form 86, the putative respondent should not be called upon to speculate what the applicant's case might be, still less to answer such “case”: Shahzad Muhammad Aqeel v Secretary for Security [2021] HKCFI 3240, §§15-17, Coleman J. It is a judicial review case but the reasoning equally applies here.

24.It is therefore not appropriate to raise issues of justification and proportionality by way of a list of issues and submissions.

25.In any case, I agree with OS that there is simply insufficient evidence before the Court to reach any clear and definite conclusions on matters of justification and proportionality, especially given the potentially wide‑ranging implications for other cases.

26.Having heard the parties, I agree with the approach of OS that this application can and should be determined on ordinary principles of statutory interpretation alone, without getting enmeshed in the wide-ranging and complex constitutional issues raised by NF and R in their submissions.

27.I shall therefore disregard the arguments on justification and proportionality.

28.The parties have filed lengthy submissions with altogether 277 authorities. I will not attempt to summarize all the legal arguments but only focus on the pertinent ones.

D.  APPROACH OF THE COURT

D1.  General principles on statutory interpretation

29.An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit: section 19 of the Interpretation of General Clauses Ordinance (“Cap 1”).

30.The principles for choosing between the competing interpretations have been recently summarized by Chief Justice Cheung in HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, §§10-11:

“10. The rules of statutory construction are well established. Words are construed in their context and purpose. They are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise. A purposive and contextual interpretation does not mean that one can disregard the actual words used in a statute. Rather, the court is to ascertain the intention of the legislature as expressed in the language of the statute. As has been repeatedly pointed out, one cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear.

11. Context here is to be taken in its widest sense and includes other statutory provisions and the general law. The purpose of a statutory provision may be evident from the provision itself, the recommendation of a report such as that published by the Law Reform Commission, the explanatory memorandum to the relevant bill or a statement by the responsible official of the government in relation to that bill in the Legislative Council. It may also be relevant in any given case to look at the history of the provision concerned.”

31.A similar caveat has been given by Sir Anthony Mason NPJ in Lam Kwong Wai, §§63-64:

“63. … Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A (No 2) [2002] 1 AC 45 at pp.67G-68H, per Lord Steyn). A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained. (underline added)

64. The very strong common law presumption or rule of construction in favour of constitutional validity, ut res magis valeat quam pereat (‘it is better for a thing to have effect than to be made void’ – see Jowitt’s Dictionary of English Law (2^nd ed., 1977), Vol.2 p.1845) is subject to a similar limitation.” (underline added)

32.A statute is not treated as embedded and fossilized in its own time but is generally to be construed as “always speaking”. Here it is presumed that the legislature intends the court to apply a construction that allows for changes (eg changes in society or technology) that have occurred since the Ordinance was initially framed (an “updating construction”). The enactment is to be applied in such a way as to give effect to its original intention. Exceptionally, an Ordinance may be intended to be applied in the same way whatever changes might occur after its passing. An updating construction is not therefore applied to it: HKSAR v Chan Chun Kit, §§66‑70, Cheung CJ. Bennion at §14.1, pp 503-504, 514-518.

33.The constitution is a constant presence in the law. The courts will strive to give legislation such a reading as would bring it in line with the constitution and not only when the question of statutory interpretation is answered against a person. It is only if it is impossible to do so that the legislation concerned would be struck down, which is a course of last resort. See W v Registrar of Marriages (2013) 16 HKCFAR 112, at §214, Chan PJ.

D2.  The English equivalent

34.Since the provisions of PCO are derived from the provisions of the Family Law Act 1986 of England and Wales (“the 1986 Act”) and the Human Fertilisation and Embryology Act 1990 of the United Kingdom (“HFEA 1990”), their legislative contexts and English case-law shall be referred to where relevant.

D3.  Best-interests principle

35.The PCO was enacted with the best interests of child in mind. See AG’s speech to LegCo on the Parent and Child Bill (“the Bill”) and the LegCo Brief for the Bill. As this case involves a child, the Court should also have the best interests (used interchangeably with “welfare”) of the child as its first and permanent consideration (“best-interests principle”). However, as I have made clear to the parties at the outset of this hearing, it is not as if the “best interests principle” trumps all. FH v WB [2019] 5 HKC 99, Au‑Yeung J, §§49-62, which NF and R heavily rely on certainly did not so propound.

36.The best interest of the child is not the basis to accept jurisdiction, when that is contrary to the wording of section 6: WSJ (Minor) (Parentage: jurisdiction) [2019] 1 HKLRD 977 §43. The Court of Appeal observed that “the Court of Final Appeal did not decide the case [QMY v GSS (2017) 20 HKCFAR 303] on the basis that the child’s best interest as the first and paramount consideration should be adopted in statutory interpretation, let alone across the board for all statutes.”

37.Further, the issues before this Court do not affect K alone, but a class of children who were born in a similar situation, ie out of female same‑sex couples/partners in a committed relationship who intended to be co‑parents, used RIVF or other medical treatment to give birth to a child and do become the social or psychological parents of that child (“K’s Class”). A declaration of parentage binds the Government and all other persons: section 6(5). The Registrar of Births and Deaths must know with certainty whether or not to register, as a matter of law, a person in the position of R as a parent instead of exercising any discretion to do so. The parent-child status should be spelt out clearly in public records.

38.It is thus more appropriate to approach the issues in this case on a principled basis, having regard to the legislative intent and principles of statutory interpretation, rather than apply the best-interests principle on a case by case basis. See Regina (TT) v Registrar General for England and Wales [2020] Fam 45 (at first instance) (“RTT case”), §261; and The Queen (on the application of Alfred McConnel v The Registrar General for England and Wales [2020] EWCA Civ 559 (on appeal), §58.

39.In the R (TT) case, the claimant was registered as female at birth but became a transgender man who had received a gender recognition certificate stating that his gender was male. The court gave a declaration of parentage that he was the child’s “mother”, rather than “father, parent or gestational parent”. The best-interests principle was not taken into account despite the fact that the declaration could cause “exquisite embarrassment and confusion” and “significant anxiety and distress” to parent and child (at §§250, 252 and 284 of the first instance judgment, upheld on appeal).

40.The best‑interests principle carries more weight when the Court is exercising its discretion to make an order within its jurisdiction to make. That was what the Court did in FH v WB, §64, when exercising the discretion to extend time for applying for a parental order under section 12(2). It was very different from the present situation when the Court, upon being satisfied with the fact of parentage, must make a declaration of parentage in law unless it is contrary to public policy: s 6(3).

E.  ISSUE 1 – PCO ISSUE

E1.  Section 6 of PCO

41.Section 6 provides as follows:

“6. Declarations of parentage, legitimacy or legitimation

(1) Any person may apply to the court for a declaration that-

(a) a person named in the application is or was in law his parent-

(b) he is the legitimate child of his parents; or

(c) he has become, or has not become, a legitimated person.

(2) A court shall only have jurisdiction to entertain an application under this section if, at the date of the application, the applicant-

(a) is domiciled in Hong Kong;

(b) has been habitually resident in Hong Kong throughout the period of 1 year ending with that date; or

(c) has a substantial connection with Hong Kong.

(3) Where on an application for a declaration under this section the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy. …” (emphasis added)

42.Section 6 is to introduce a new and separate procedure to enable a person to apply to the Court for a declaration as to his parentage when in the past a finding of paternity could only be made incidental to other proceedings such as custody or maintenance: Re WSJ (Minor) (Parentage: jurisdiction) [2019] 1 HKLRD 977 at §44 (CA). See Law Reform Commission Report on Illegitimacy (“LRC Report”) at §§1.15, 1.20, 1.21, and 6.18; LegCo Brief, §11. LRC Report has, in turn, relied on the 1982 Report of the English Law Commission entitled Family Law: Illegitimacy, (“Law Commission Report”) §10.5.

43.With regard to section 6(1), an applicant is the child. He can apply as an adult or as a minor through his next-friend. The definition of “parent” is the bone of contention in this case.

44.The words “in law” were added to section 6 (1)(a) at the Committee Stage. According to the Official Record of Proceedings of the Legislative Council (10 March 1993), as explained by Mrs Miriam Lau, a member of the ad hoc group set up to study the relevant Bill,

“Clause 6(1)(a) is amended to add ‘in law’ after the word ‘was’. This seeks to make clear that the clause is concerned with the legal parent of the child. As the law only recognizes one father and one mother of a child, the amendment would avoid any misinterpretation that a person can apply to the court under this clause to declare another person to be his father or mother if he has already got a legally recognized father or mother.” (underline added)

45.With regard to section 6(2), there is no dispute that the jurisdictional threshold has been satisfied. K was born in Hong Kong. Up to the date of the application, he had spent all his time (7 months only) in Hong Kong. B and R are both Hong Kong permanent residents. At the date of the Originating Summons, K was domiciled in Hong Kong, or at least had a substantial connection with Hong Kong.

46.If sections 6(1) and (2) are satisfied, the Court must grant a declaration of parentage although, as OS submits, the Court retains a discretion as to the wording of the declaration.

47.As SJ and OS submit, a declaratory judgment is a final relief. It is a formal statement by a court pronouncing upon the existence or non‑existence of a legal state of affairs and what the rights of the parties are. The effect of a declaration is not to create, confer or alter rights but merely indicate what they have always been. See Vikpro Pty Ltd v Wyuna Court Pty Ltd [2019] 2 Qd R 15 at §16 per Applegarth J; Macks v Viscariello (2017) 130 SASR 1 at §660 per the Full Court of the Supreme Court of South Australia; Zavarco plc v Nasir [2022] Ch 105 at §37, Sir David Richards.

48.The court in dealing with an application for declaration should proceed with caution and require cogent proof to its satisfaction of the proposition to be declared: section 6(3); Re OMH (Parent and Child: Declaration) [2017] 3 HKLRD 323, at §43; LRC Report conclusions and recommendations on “proof of paternity” through “finding by the court”, at §§5.47, 5.48, 5.56 and 6.18.

49.This brings out a material distinction between a “declaration of parentage” under section 6 and a “parental order” under section 12. A declaration of parentage is a confirmation as to who factually “is or was” in law a parent of the child even before a section 6 application is made. Therefore, the Court must make the declaration upon being satisfied with evidence, unless it is contrary to public policy.

50.On the other hand, a parental order confers parentage in a surrogacy situation on those who are “to be regarded” as parents of a child, at the same time displacing the parents under sections 9(1), 10(2) and (3), upon making the order. This is an order that the Court may make upon application: section 12(1). Because of its nature in conferring and displacing parental status, a parental order can truly be said to be “transformative” for the child, the commissioning parents and the surrogate mother: FH v WB at §§33-34, 46-47; and Re A & B (Parental Order: s 12 Parent and Child Ordinance (Cap 429) [2019] 5 HKLRD 366, Au-Yeung J. It is an order having drastic effect on the person declared to be a parent in that “massive consequential rights, duties and obligations can follow from a parental order: Re OMH, at §41.

51.Both a declaration of parentage and a parental order share the similarity that each gives to the child (and the subject parent) a legal status for life, defining whose child he/she is and the family to which the child belongs. A guardianship order (which lasts only until the child reaches 18) and an adoption order (which does not recognize the genetic link between the child and the parent) is no substitute for any of them: FH v WB, §§36-37.

52.Section 6(3) contains a sparingly used residual discretion. The “public policy discretion” has only been applied in cases where the declaration offends against our ideas of “substantial justice”: Re OMH, at §44.

53.In the present case, there is no suggestion that, if sections 6(1) and (2) are met, making the Declaration would be contrary to public policy.

E2.  Definition of the term “parent” under section 6

54.Section 6 itself does not define the term “parent”. Nor does Cap 1.

55.There have been cases that interpret the term “parent” under section 6(1) PCO to mean “natural parents” ie biological parents: Re OMH, §38, Chu JA (as she then was)[2]; S v J (Surrogacy: Wardship) [2017] 5 HKLRD 129, §21, Au-Yeung J.

56.The subject parents in those 2 cases were the genetic parents, ie the putative father in Re OMH and the commissioning parents who used their own gametes in S v J. In Re OMH, establishment of the genetic link and nothing more entitled the applicant to a declaration of parentage. The child’s birth in that case did not result from medical treatment. In S v J, the children’s birth resulted from surrogacy. The commissioning parents used their gametes for the surrogacy. The application was not for a declaration of parentage but a parental order under section 12. But cases do not define who a “parent” is, in particular, a mother.

57.In In re Z (Children) (Foreign Surrogacy: Allocation of Work, Guidance on Parental Order Reports) (FC) [2017] 4 WLR 5, at §52. Russell J held, without citing authority for the proposition, that orders on parentage are a creature of statute and can only be made by the court by virtue of the statutory law. This position was briefly endorsed without further analysis or elaboration by B Chu J in Re T & L (Parental Order: s 12 Parent and Child Ordinance (Cap 429)) [2022] 2 HKLRD 685, §37(1).

58.However, in fact, in Re G (Children) (Residence: Same-sex Partner) [2006] 1 WLR 2305, (“Re G”) Baroness Hale did explain the difference between natural parents and legal parents.

59.In §30 of her speech, Baroness Hale first referred to the Working Paper No. 96, Family Law: Review of Child Law: Custody (1986), having discussed whether there should be some form of presumption in favour of natural parents. She then went on, in §32 to note that there was a difference between natural and legal parents.

“So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by ‘natural parent’ in this context. There is a difference between natural and legal parents. Thus, the father of a child born to unmarried parents was not legally a ‘parent’ until the Family Law Reform Act 1987[3] but he was always a natural parent. The anonymous donor who donates his sperm or her egg under the terms of the Human Fertilisation and Embryology Act 1990 is the natural progenitor of the child but not his legal parent: see the 1990 Act, sections 27 and 28[4]. The husband or unmarried partner of a mother who gives birth as a result of donor insemination in a licensed clinic in this country is for virtually all purposes a legal parent, but may not be any kind of natural parent: see the 1990 Act, section 28. To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person’s family, but it does not necessarily tell us much about the importance of that person to the child’s welfare.”

60.Such dicta is equally applicable to Hong Kong, where PCO shares the same structure as the Acts mentioned therein. Accordingly a person is in law a parent where statute defines him or her to be so.

61.That said, courts should keep an open mind on the definition of “parent” as societal norm and medical technology may change to enable people who could not be parents in the past now become able.

62.I agree with OS, in particular, 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. Applying section 6 in the light of the common law norms then prevailing is in line with the essential purpose of section 6, namely to afford equal protection to all children without discrimination on the grounds of their birth or the marital status of their parents.

E3.  Common law definition of the term “parent”

63.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: Z v X [2020] EWFC 67 at §23, Theis J. This continues to be the position under PCO.

64.As for motherhood, prior to the advancement of modern techniques of scientifically assisted reproduction, genetics and gestation could not be separated: Re W (Minor) (Surrogacy) [1991] 1 FLR 385.

65.Prior to the mid-20^th century, a person who became pregnant, through the insemination of an egg in her womb, and who subsequently gave birth to a child was the mother: R(TT) case, §§133, 135 and 280. Being a “mother” hitherto has always been associated with being female: at §279.

66.This common law position was acknowledged by the Legislature of Hong Kong in the LRC Report.

67.However, R(TT) was not a case of dual motherhood. It was a case where the genetic and gestational mother was one and the same person but bore a male gender. The issue there was whether a transgender man could be recognized as the mother of his child who he had, as a cis‑woman prior to his transition, conceived via artificial insemination, carried to term and given birth to. The court answered it in the affirmative, which was upheld on appeal. R(TT) case does not support SJ’s proposition that the common law favours gestational mother over the genetic mother. Nor did it deal with the issue of whether “mother” was limited to one female only.

68.With the advance of medical technology, pregnancy through insemination of one woman’s egg in another woman’s womb became possible.

69.Being a “mother” or a “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender‑specific or marriage‑based, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female: R(TT) case, §280(c).

70.The latest common law definition of “parent”, heavily relied on by NF, R and OS, was expounded in Baroness Hale’s speech in Re G. This was not a case on declaration of parentage but care and shared residence order.

71.In that case, G & W were same sex partners. The children were born out of artificial insemination of G and an anonymous sperm donor. W was not genetically linked to the children. G & W fell out and entered into new relationships with new partners. The Court had to identify the course which was in the best interests of the children (§2 of the judgment).

72.It was with that distinction between legal and natural parents in mind (§59, above) that, in §33, Baroness Hale stated 3 ways in which a person may become a natural parent (ie not necessarily a biological parent):

“33. There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is ‘his’ child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child … For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

34. The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: [the] 1990 Act, s[ection] 27 [ie s.27 of the Human Fertilisation and Embryology Act 1990, the UK equivalent of section 9 PCO]. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

35. The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase ‘psychological parent’ gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

‘A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.’

36. Of course, in the great majority of cases, the natural mother combines all three … The natural father combines genetic and psychological parenthood …

37. But 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 …”

(underlines added)

73.Plainly, these 3 categories were the most “natural” candidates to be termed “parents” in a contest for care and shared residence order, quite unlike the present situation where, under PCO, the Court is concerned with who the legal parents are.

74.It is noteworthy, however, that whilst Re G and the R(TT) case affirmed the importance of gestation, neither judgment excludes the importance of the genetic link. Re G involved a same sex partnership, one woman was neither gestational nor genetic mother. R(TT) case did not involve same sex relationship at all.

75.In terms of women, I agree that the first 2 categories identified by Baroness Hale can in principle be regarded as parents at common law before intervention of PCO discussed below.

76.As to the third category, Baroness Hale cited the example of adoptive parents, whose status as parents is specifically governed by the Adoption Ordinance, Cap 290. Other persons falling under the third category can be eg foster parents, or uncles and aunts in the neighbourhood taking care of someone’s child on a long term basis. However good their relationship with the child is, that, in itself, cannot give them status in law as “parents”.

77.Applying Re G, there is no dispute among all parties that R is a category 1 and 3 parent.

78.The analyses, however, does not stop here. As K was born as a result of medical treatment, Part V comes into play to identify his legal parents.

E4.  Part V definition of “parents”

79.The relevant sections of Part V provide as follows:

“9. Meaning of mother where birth or pregnancy results from medical treatment

(1) 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. …”

…

10. Meaning of father where birth or pregnancy results from medical treatment

(1) This section applies in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination.

(2) If-

(a) at the time of the placing in her of the embryo or the sperm and eggs or her insemination, the woman was a party to a marriage; and

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then … the other party to the marriage shall be regarded as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be).

(3) If no man is regarded, by virtue of subsection (2), as the father of the child, but-

(a) the woman and her male partner together obtained treatment services in the course of which the embryo or the sperm and eggs were placed in the woman or she was artificially inseminated; and

(b) the creation of the embryo carried by her was not brought about with the sperm of that man,

then … that man shall be regarded as the father of the child.

(4) Where a person is regarded as the father of the child by virtue of subsection (2) or (3), no other person is to be regarded as the father of the child.”

…

(6) Where the sperm of a man other than –

(a) the other party to the marriage; or

(b) the man referred to in subsection (3),

was used, that man is not to be regarded as the father of the child.”

11. Effect of sections 9 and 10

(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 to be regarded as the mother or father of a child, that person is to be regarded in law as being the mother or, as the case may be, father of the child for any purposes.

(3) Where subsection (1) or (2) has effect, references to any relationship between 2 persons in any Ordinance, instrument of document (whenever enacted or made) shall, unless the contrary intention appears, be read accordingly.

(underlines added)

80.Section 9 addresses the common law dilemma when the genetic mother and gestational mother were no longer one and the same person, as faced by Baker J in Re W (Minor) (Surrogacy) [1991] 1 FLR 385. It confers legal parental status on the gestational mother as opposed to the genetic mother. In the United Kingdom, this preference for gestational mothers was reached by drawing an analogy with sperm donations, which should be dealt with by severing completely all links between the donor and the child. See Committee of Inquiry into Human Fertilisation and Embryology (the Warnock Committee), Cmnd. 9314 (1984), §§6.6-6.8. Hong Kong duly adopted the same approach in PCO.

81.Section 10 is to define who in law the father of a child is. The intention is to prevent the child from being “fatherless”, disadvantaged by having only one parent named in his/her birth certificate. See LRC Report, §§5.57-5.59.

82.Once section 9 or 10 regards a person as the mother or father of a child, that would apply for all purposes and to all Ordinances that refer to the relationship of mother and child, or father and child: section 11.

83.I also mention section 12 for comparison purpose. Section 12 (not addressed by the LRC Report) is to introduce a new procedure to enable the commissioning parents in a surrogacy arrangement to apply to court for an order that the child born of the surrogacy is to be treated in law as the child of the commissioning (ie non-carrying) parents. Otherwise, the surrogate mother and her husband would be treated in law as the child’s parents. That would run counter to the intention of the commissioning couple in entering into the surrogacy arrangement. The advantage of a section 12 order is that it is specifically designed for the circumstances of surrogacy and can proceed swiftly, in the best interest of the child and the other parties to the surrogacy. See LegCo brief, §§13-14.

84.Viewed in this light, the overarching aim of section 12 (not Part V as a whole, as suggested by OS) is to give a child’s commissioning parents a means of bringing the child's legal parentage in line with their intended social parentage or, what the then AG termed the “reality of the surrogacy arrangement.”

E5.  Applicability of Part V

85.NF, R and OS submit that Part V does not apply in this case. Their arguments can be summarized as follows:

(1)  RIVF was not a technology known to the UK Legislature in 1990 or the HK Legislature in 1993 when PCO was enacted.

(2)  According to OS, at the time, the primary medical uses of artificial insemination and In vitro fertilisation (“IVF”) would presumably have been to assist infertile heterosexual couples to conceive children, with and without the assistance of surrogate mothers.

(3)  Part V was drawn specifically to provide who should hold the legal status of “parents” where there was a surrogate, a gestational mother who was not also the commissioning or intended mother and to provide for a “mother” and “father” in the circumstances of medically or scientifically assisted birth defined in Part V. It does not provide for the situation where no surrogate is involved in gestation and the oocyte gametes are those of the female partner of the gestational mother.

86.Interpreting Part V in the light of the circumstances at the time of the enactment of PCO and the legislative intention, these contentions are, without disrespect, untenable for the following reasons:

(1)  As a general principle of statutory interpretation, a special provision in statute (Part V) prevails over a general one (section 6);

(2)  Part V applies to births resulting from medical treatment and is technology neutral;

(3)  Part V does not only apply to infertile heterosexual couples/partners;

(4)  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;

(5)  Having a second female as parent has been expressly excluded by Part V;

(6)  As evident from various provisions in PCO, whether to give recognition as parent due to genetic link or gestational link is a policy of the Legislature; and

(7)  Same sex percentage is not concerned by PCO and any change ought to be done by legislation.

I will explain each of these reasons in turn.

E5.1  Special statutory provision prevails over a general one

87.The principle of statutory interpretation, generalia specialibus non derogant (ie specific sections prevail over general sections), applies: Sham Tsz Kit v Secretary for Justice [2022] 4 HKLRD 368, §§36-37, Poon CJHC (in the context of interpreting BL). See also an Australian line of authority cited in Family Law in Australia (10^th edn) §§7.48-7.49 concerning surrogacy which was endorsed by the Full Court of the Family Court of Australia in Bernieres v Dhopal [2017] FamCAFC 180, §§50-54. Applying this principle, the Full Court held that the specific sections on a child born as a result of artificial conception procedures or under surrogacy arrangements prevail over the general sections on parentage.

88.Accordingly, Part V should prevail over section 6(1) when it comes to ascertaining parentage of a child whose birth results from medical treatment.

E5.2  Part V is technology neutral

89.K’s birth resulted from medical treatment. In section 2 where “treatment services” is defined, the woman who is “assisted” to carry a child is the wife or partner of a man, a surrogate mother or any woman who is unable to conceive alone (like B), not an infertile woman.

90.“Medical treatment” is used throughout Part V as the situation of a child being or has been “carried by a woman” “as a result of the placing in her of an embryo or of sperm and eggs”: sections 9(1), 9(3), 10(1), 10(2), 10(9) and 12(1)(a) PCO. These sections clearly contemplate the use of gametes of one male and 2 females in some situations.

91.As shown in the Law Commission Report, the following medical treatments were known to the public when the HFEA 1990 was enacted:

“12.3 …We are aware that there has been a considerable amount of discussion in the press, in articles and books, and in Parliament relating both to artificial insemination and to fertilisation in vitro, embryo transfer and related developments …” (underline added)

92.Similarly, the LegCo Brief stated:

“Clauses 9-11 deal with the question of who is to be treated at law as being the father and mother of a child born as a result of medical treatment, such as artificial insemination or in vitro fertilization. … The question of control and regulation of scientifically assisted fertilization will be addressed by any legislation arising from the CSAHR report. The present Bill is intended to provide a legal mechanism for determining the legal parentage of children born as a result of medical treatment.” (underline added)

93.It is thus clear that Part V is technology neutral. Artificial insemination, IVF or RIVF are but examples of medical treatment. Part V does not distinguish between the source of the eggs, from a female spouse or partner or stranger to the gestational woman. Part V does not only apply to surrogacy cases.

94.However, Part V would not apply if, eg the medical treatment results in a child being carried by a man.

95.In the context of medical treatment, R and B are no different from a commissioning mother (genetic mother in FH v WB) giving her eggs to the surrogate mother (gestational mother in FH v WB) as contemplated by section 12(1)(a).

96.RIVF is therefore not a medical technology unforeseen by the Legislature but “the same genus of facts as those to which the expressed policy has been formulated”: Royal College of Nursing v Department of Health and Social Security [1981] AC 800 (HL), 822C.

97.R’s submission that RIVF (or ROPA) was first described only 17 years after enactment of PCO in an article in 2010 (Exhibit KR-2) is, without disrespect, misleading. That was a research article which did not even purport to state that 2010 was the first year in which RIVF appeared. Even if RIVF only emerged then, it did not undermine the fact that RIVF was a medical treatment within the meaning of Part V.

98.The material difference between the 2 women involved in the birth of a child in Part V on the one hand and the 2 women using RIVF on the other is, in my view, the intention. In respect of the former pair, the intention is to exclude one woman (“the excluded woman”). For RIVF, there is no intention to exclude either woman. I shall come back to this in Section F below on Violation of Legislative Intent.

E5.3  Part V does not only apply to infertile heterosexual couples or partners, with or without surrogate mothers

99.Section 12 concerns genetically related surrogacy in that the gametes of one or more of the commissioning parents are used: section 12(1)(b). Accordingly, I agree with OS that section 12 is to assist infertile heterosexual couples/partners to conceive children, with or without the assistance of surrogate mothers.

100.However, section 9(1) does not say that its application is limited to infertile couples/partners. It aims to ensure that a child will have a legal mother at any point in time. The following women are thus covered by this subsection, whether she is fertile or not and whether she intends to be a mother or not:

(1)  A gestational mother who does not have a partner or husband;

(2)  A gestational mother whose partner or husband does not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be) under section 10(2) or (3) of PCO;

(3)  A gestational mother who is a wife or partner in a same sex marriage (like B); and

(4)  A surrogate mother where the commissioning parents do not apply for a parental order under section 12, or before the commissioning parents apply for such an order.

E5.4  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

101.In Hong Kong, it is firmly established that the right to marriage under BOR19(2) and BL37 is conferred on a heterosexual couple only: Sham Tsz Kit v Secretary for Justice [2022] 4 HKLRD 368, §§1, 35-40, Poon CJHC; W v Registrar of Marriages at §§63 and 165; QT v Director of Immigration [2017] 5 HKLRD 166 at §2 (Cheung CJHC, as he then was). Therefore, it is not surprising that in 1993, PCO used gender specific terms for father and mother and hence parents.

102.As submitted by SJ, a person cannot, as a matter of Chinese language and of law, be a 父母without being either a 父 (male father, singular only) or母 (female mother, singular only). There is no third category of parent. The number of parents within the family is two. I do not know where Mr Kat has taken “Chinese language advice”. There is no leave to adduce expert evidence anyway. Ask any Chinese primary school child and there cannot be a different definition of the term 父母.

103.Section 10B of Cap 1 provides as follows:

“Construction of Ordinances in both official languages

(1) The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

(2) The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3) Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”

104.It was also the understanding of the Chairman of the Committee stage of the Bill, Mrs Miriam Lau, when she moved for the addition of the words “in law” in section 6(1)(a). See §44 above. Although hers was not a ministerial statement to introduce the Bill, there was no suggestion in the legislative materials to contradict her view.

105.OS agrees that it was a statement that was coherent and understandable within the then prevailing context where (according to OS) RIVF-type procedures and family arrangements were not within contemplation.

E5.5  Having a second female as parent has been expressly excluded

106.Sections 9(1) provides that the gestational mother is to be regarded as the mother for all purposes. There is a good reason why the law prefers the gestational mother, as Baroness Hale explained in Re G, §34:

“While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other”. (underline added)

107.Section 11 puts it beyond doubt that the gestational mother is to be regarded in law as the mother for all purposes, whilst the other woman is not to be regarded in law as not being the mother for any purpose. These are sweeping provisions because, under section 11(3), 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. Section 11 comes under Part V and hence apply to all children whose births result from medical treatment.

108.Part V thus precludes 2 female parents (however one designates them). R cannot, in law, be K’s mother or legal parent for any purpose. To hold otherwise gives sections 6(1) and 9(1) a meaning which the language of PCO, stood in the light of its context and purpose in 1993, cannot bear. NF’s attempt to divorce the definition of “parent” in section 6(1)(a) from the rest of PCO is uncalled for. An Ordinance must be read as a whole without which an enactment within it is not treated as standing alone but is interpreted in its context as part of the Ordinance.

109.NF plainly acknowledges this, as she neither seeks a declaration that R is a “mother” nor a “father”. R does not advance a position different from NF.

E5.6  Recognition as parent due to genetic link or gestational link is a policy of the Legislature

110.At common law, there is no legal impediment to recognizing the genetic link of a woman. Genetic link is also central to many of the legal rights based on blood lineage as evidenced by the various enactments referred to by SJ, NF and R. Nationality eg in the PRC, is based on blood lineage, but not on the parent being declared a legal parent under PCO. K has thus obtained permanent resident status by virtue of his biological link to R.

111.Whether genetic link, in itself, will give a person the legal status of a mother (or, indeed, a father) under PCO is a policy decision. Sub-section 9(1) excludes the genetic mother. Contrast this with section 12. The starting position is to regard the gestational surrogate mother as the mother under section 9(1). Upon application by the commissioning parents with a resultant order, section 12 displaces the gestational mother and gives the status of a mother to the commissioning mother (who may be the genetic mother as well), if the conditions in section 12 are satisfied.

112.Had the Legislature the slightest intention for genetic link to “trump” all or otherwise to let a child have 2 female parents, there is simply no need to enact section 9(1). Similarly, there would have been no need for the commissioning parents who used their own gametes, eg those in FH v WB, or S v J, to apply for parental orders under section 12.

113.Accordingly, R cannot rely on her genetic link with K alone to get parental recognition.

E5.7  Same-sex parentage is not covered by PCO and any change ought to be done by legislation

114.That was what happened in the UK. The Civil Partnership Act 2004 was enacted on 18 November 2004, which allows 2 persons of the same sex to enter into a civil partnership. In 2008, section 30 of HFEA 1990 (on which section 12 of PCO was modelled) was repealed and replaced by Part 2 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) titled “Parenthood in Cases Involving Assisted Reproduction”.

115.Sections 42-47 of HFEA 2008 provide for parentage in a same-sex marriage or partnership. There is a change to the equivalent of section 10(2)(a) of PCO to treat the non-gestational woman (P) to a same-sex marriage or partnership as “parent” of a child if, at the time the woman (W) received the medical treatment, the “agreed female parenthood conditions” were met in relation to P. Those conditions include P and W’s consent to P being treated as a parent of any child resulting from treatment provided to W under a licence. There is express provision in section 47 of the Act that a woman is not to be treated as a parent of the child whom she is not carrying and has not carried except where she is so treated as aforesaid.

116.The legislative debate of the Human Fertilisation and Embryology Bill 2008 (“HFEB”) made clear that legal recognition of same‑sex parentage was not available in HFEA 1990, and one of the purposes of the HFEB was to extend such recognition to same-sex couples or partners, following from the legal recognition of same‑sex civil partnerships in the UK.

117.The speech of Lord Darzi of Denham, the Parliamentary Under‑Secretary of State, Department of Health, contained this statement at the legislative debate on 19 November 2007, at pp 666-667:

“The Bill includes clear recognition of same-sex couples as legal parents of children conceived through the use of donated sperm, eggs or embryos. This will mean, for example, that the woman who gives birth and her civil partner will both be recognised as the parents of a child conceived via assisted reproduction. At present, the partner would have to apply to adopt the child. Similarly, two men will be able to apply for a parental order to become parents of a child conceived through a surrogacy arrangement. At present, parental orders are open only to married couples. In considering these matters we must ensure that we do not overstress concerns and anxieties, or depart into the realms of science fiction. Similarly, we must be careful not to overhype promising areas for future exploration”. (underline added)

118.Hong Kong has not followed the UK legislative change.

119.The above 7 reasons support SJ’s interpretation of what “parent” means under section 6(1) and Part V. R falls within section 9(1). She is not a mother and is not regarded as a mother; so she cannot be regarded as a parent of K.

F.  VIOLATION OF LEGISLATIVE INTENT

F1.  Legislative purposes not met

120.The legislative purposes of PCO are, amongst others,

(1)  To reduce legal disabilities associated with illegitimacy as stated in the long title to PCO;

(2)  To provide equality at law for all children and to protect them against discrimination regardless of their parents’ marital status: §6.1 of the LRC Report; LegCo Brief, §§6-7.

(3)  To give effect to BOR 20 (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): AG’s speech at the 2^nd reading of the Bill.

121.The interpretation in §119 above violates purpose (1). K remains an illegitimate child of R under PCO. However, that is not something that the Court can do by interpreting PCO in any other manner because legitimacy is governed by the marital status of a person’s parents: section 2.

122.The interpretation in §119 also violates purposes (2) and (3). Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. Not to discriminate on the ground of “other status” includes discrimination on the ground of sexual orientation: QT, §§32 and 106.

123.The initial step of determining whether there is differential treatment on a prohibited ground essentially involves this question; why is the complainant being treated less favourably than individuals in a relevant comparator group? See QT, at §38.

124.NF and R have put forth at least 14 different comparators. It is not necessary to set them all out. Put simply, B and R are not regarded as married under Hong Kong law. If R were a male, whether he was married to B or not, R would have been recognized as a parent. Whilst it was the choice of B and R that K should be “fatherless”, K is still discriminated as to his birth in the sense that, unlike other children, he does not have a co-parent, genetically linked to him, because R is another female and because of the sexual orientation of B and R.

125.The current state of PCO is that the Legislature would rather presume a man who did not provide the sperms to be the father of a child born within wedlock, than to accept someone who is genetically linked to the child and psychologically and socially his parent to be the parent. One does not even need to invoke the best-interests principle or any constitutional right relied on by NF or R to see the absurdity.

F2.  Adopting an interpretation that avoids absurdity

126.The presumption against absurdity means that the courts will generally avoid adopting a construction that cures the mischief the enactment was designed to remedy, but only at the cost of establishing another mischief: Bennion §13.8.

127.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.

128.The AG has stated that the Bill was not concerned with whether or not surrogacy and scientifically assisted birth was desirable, nor considering the controls that should be applied: Official Record of Proceedings of the Legislative Council dated 24 June 1992.

129.The focus in this case is on K’s Class, targets suffering from discrimination, who were not the creator of difficult issues on parentage. See LegCo Brief §5; LRC Report, §§3.6 and 3.7, which talked about illegitimate children who were being discriminated.

130.I agree with OS that the fact that the Legislature had parenthood of a particular form in mind at the time of enacting the PCO does not mean that it intended, positively and peremptorily, to fossilize the concept of “parent” and render it frozen since 1993.

131.Coming back to §98 above, there is a difference in intention between the “excluded woman” in Part V and the 2 women using RIVF.

132.Under Part V, the Legislature intends to exclude the ovum (or sperm) donor. Practically, being anonymous, the donor(s) is not expected to ever come into contact with the family. See LRC Report, §§12.1, 12.4 and 12.7. Similarly, the surrogate mother is excluded, although her identity may be known, as she is never intended to be the parent.

133.On the other hand, B & R who used RIVF intend otherwise:

(1)  The ovum donor is not anonymous.

(2)  Unlike the excluded woman under section 9(1), from exploring the idea of RIVF till K was born, R has always intended to be a parent and B never has the intention to exclude her. B and R are not “competing” for a mother’s status but have intended to be co-parents.

(3)  Similar to the commissioning woman in section 12, R’s biological link to K is preserved. R has intended to be and has always been the genetic, social and psychological co-parent of K. B never has the intention to exclude her.

(4)  Unlike the commissioning woman in section 12, R never has the intention to exclude B as the gestational mother.

(5)  B and R have carried through their intentions till now.

(6)  There is no third “competing parent” - the sperm donor.

134.Sir James Munby P in In re P and others (Legal Parenthood: Written Consents) [2017] 4 WLR 183 poses the all important question of “Who is my parent? Is this my child?” in a surrogacy case:

“14. I venture to repeat at this point what I said in In re A [2016] 1 WLR 1325 at para 3:

‘The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under [the HFEA 2008] … is, as a moment's reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?’

15. Legally the issue … may become relevant in the future in relation to such matters as citizenship and nationality or … succession and inheritance.

16. … [A] declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child's legal relationship with the parent as being, indeed, his legal parent.”

135.People like K and R face the same questions, but the Legislature has not answered them, in Part V, since 1993.

136.This Court asks rhetorically: if the third category of parent in Re G (ie the social and psychological parent, who is not even genetically linked to the children) is entitled to be considered for a care and shared residence order, how much stronger is the fact of parentage in R who has been willing and in fact able to parent K?

137.No one will be prejudiced by the making the Declaration. To the contrary, acknowledging the genetic link and reality of R’s social and psychological parentage is plainly to affirm the facts and makes congruent K’s legal parentage with the intention and reality of the RIVF. There is no need for the Court to recognize the validity of the same-sex marriage of B and R and the desirability of the form of RIVF. There is no suggestion that the RIVF involved any abusive conduct.

138.However at least reasons 1 and 2 in §86 hold good. To declare R to be a “parent” on the bases of §§131-137 above means that Part V has no application. If so, which provision therein is said to be inapplicable to this case?

139.Not section 9(1) because B is taking the advantage under it. The two women in RIVF cannot blow and cold over this section.

140.In the course of his oral submission, Mr Kat proposed a “remedial construction” of section 9(1). This is his second version and the proposed additional words are underlined:

“9. Meaning of mother where birth or pregnancy results from medical treatment

(1) 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, save for her female partner who, together with the woman obtained treatment services in the course of which the embryo or the sperm and eggs were placed in the woman when the female partner’s egg was used, is to be regarded as the mother of the child. …”

141.Leaving aside the propriety of introducing remedial interpretation, the underlined words do not solve the problem. It defines who the “mother” is, but NF is not seeking to have R declared as a “mother”.

142.Section 11 should not be disregarded either, because K and R would want to take the benefits under it. However, section 11 does not contain the term “parent” and this section cannot be read without reference to section 9 (and 10). K and R will not be able to exercise their rights under the 306 statutory provisions set out in the Annex to SJ’s submission, wherein the terms “parent”, “mother” and “father” are used extensively. K will continue to be discriminated.

143.By way of example, the following problems remain even if R is declared to be a “parent” under section 6(1)(a):

(1)  It is doubtful if R has rights of a surviving “parent” as to guardianship under paragraph 5 of the Guardianship of Minors Ordinance, Cap 13, if the definition of “parent” “父母” in that Ordinance means male father and female mother only.

(2)  Under the Fatal Accidents Ordinance, Cap 22, an illegitimate person shall be treated as the legitimate child of his (female) mother and reputed (male) father.

(3)  Under the Intestates’ Estates Ordinance, Cap 73, K will not be regarded as an issue of R on her intestacy.

144.The Court is to interpret the relevant statute and not to legislate. NF, R and OS’ attempt to divorce the definition of “parent” in section 6(1)(a) from the rest of PCO is unworkable. An Ordinance must be read as a whole.

145.Whilst I have every sympathy for K’s Class who is being discriminated, the lacuna in legislation has to be filled by the Legislature. It is not for the Court to re-write the legislation: Monro v Revenue and Customs Commissioners [2009] Ch 69, §§3, 20-22, Arden LJ (as she then was).

146.Doing the best I can, I can only hold R to be a “parent at common law”.

G.  INFRINGEMENT OF FUNDAMENTAL RIGHTS

147.I have found K to be discriminated and that the legislative intent which invoked BOR20 and 22 has been violated. Finding there to be additional breaches of constitutional rights would not change the outcome of this case. It is thus not necessary to go into a whole array of constitutional rights relied on by NF and R.

H.  ISSUE 2 – PARENS PATRIAE JURISDICTION ISSUE

148.Given my decision to grant a limited form of declaration, it is not necessary to rely on the Court’s parens patriae jurisdiction. I only mention a few points briefly.

149.As stated in §§42, 47-49 above, the court has no inherent jurisdiction to make a bare declaration of parentage. Thus, section 6 was introduced.

150.The term “parens patriae”, meaning “parent of the nation” is a branch of the inherent jurisdiction of the High Court: GC v AS (No 2) [2022] 2 FLR 756 at §17, Poole J. It is based on the notion that the Court has, by delegation from the State, jurisdiction to make a wardship order whenever the State as parens patriae has a quasi-parental relationship towards the infant. The infant owes a duty of allegiance and has a corresponding right to protection and therefore may be made a ward of court: QMY v GSS (2017) 20 HKCFAR 303 at §14, Tang PJ, citing In re P (GE) (An Infant) [1965] Ch 568 at 587, Pearson LJ.

151.Lord Esher MR explained the rationale of the inherent parens patriae jurisdiction in The Queen v Gyngall [1893] 2 QB 232 at 239:

“But there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent…”

152.There is no general principle under the common law to take a child’s best interests as a primary consideration in any matter or context as long as a child’s wellbeing may be affected. The common law principle of parens patriae is rooted in the context of guardianship, maintenance, or protection of children from injury exercised through wardship proceedings: Pagtama Victorina Alegre v Director of Immigration (unreported, HCAL 13, 45 and 56 / 2014, 12 January 2016) at §§165, 168-170, Au J (as he then was).

153.NF and R refer to two Canadian authorities, namely AA v BB (2007) 83 OR (3d) 561and Beson v Newfoundland (Director of Child Welfare) (1982) 2 SCR 716. They submit that the parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap.

154.The Court’s parens patriae jurisdiction is to take care of those who are not able to take care of themselves. Accordingly, when there is a parent or guardian to take proper care of and protect the minor, there is no reason to invoke such a jurisdiction: Re YL (a minor) [2022] 3 HKLRD 699, §32, Au-Yeung J.

155.The present case concerns the granting of a declaration of parentage, a more significant issue that comes before any question of guardianship, maintenance or protection of children. The Court is not acting as a quasi-parent.

156.The parens patriae jurisdiction cannot be invoked to declare a person as a “parent” when PCO cannot do so.

157.Further, K already has a mother, B, to take care of him. R also has taken out a summons for guardianship of K. There is simply no reason for the Court to invoke the parens patriae jurisdiction.

158.K is not in danger. He is living happily with B and R. If there is a legislative gap under PCO, it is for the Legislature, not the Court, to fill it.

159.For the reasons given in this Section, I decline to make the Declaration under the Court’s inherent parens patriae jurisdiction.

I.  ISSUE 3 – RELIEF ISSUE

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 with 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.

J.  COSTS

162.Save for legal aid taxation, no order for costs is appropriate on this originating summons. The proceedings have been brought by the legally‑aided NF for K’s benefit. SJ has intervened. OS was appointed on the court’s own motion because this case involves novel and complex points of law of importance. It is justifiable for the OS’ costs to be publicly funded.

163.I therefore make an order nisi that there be no order as to costs, save that NF’s own costs be taxed in accordance with the Legal Aid Regulations.

164.I thank counsel for their assistance.

Mr Nigel Kat SC and Mr Shaphan Marwah, instructed by Patricia Ho and Associates, assigned by DLA, for the Applicant

Mr Azan Marwah, Ms Isabel Tam and Mr Peter Zhu, instructed by Withers on pro bono basis, for the Respondent

Mr Stewart Wong SC, instructed by Department of Justice, and Ms Leona Cheung, Deputy Law Officer (Civil Law) and Ms Hikki Wong, Senior Government Counsel, of Department of Justice, for the Intervener

Mr Abraham Chan SC and Mr Zenith Chan, instructed by Official Solicitor as amicus curiae