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Nf v R

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date31 August 2023
Neutral Citation[2023] HKCFI 2233
Year2022
Citation[2023] 5 HKLRD 58
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP447/2022
HCMP447/2022 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

________________________

IN THE MATTER OF K, a boy born on XXXXX 2021 (“the Minor”)
and
IN THE MATTER OF an application under Sections 6(1), 12 of the Parent and Child Ordinance, Chapter 429

________________________

BETWEEN
NF Applicant
and
R Respondent
SECRETARY FOR JUSTICE Intervener
OFFICIAL SOLICITOR Amicus Curiae

________________________

Before: Hon Au-Yeung J in Chambers (Not Open to the Public)
Date of Hearing: 2, 3 and 6 February 2023
Date of Judgment: 31 August 2023

________________________

J U D G M E N T

________________________

Contents Paragraph
A. Undistributed Background 1
B. The Parties Respective Case 14
C. Issues 20
D. Approach of the Court 29
E. Issue 1 – PCO Issue 41
F. Violation of Legislative Intent 120
G. Infringement of Fundamental Rights 147
H. Issue 2 – Parens Patriae Jurisdiction Issue 148
I. Issue 3 – Relief Issue 160
J. Costs 162

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 5th 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)...

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