Tatler | Pride and Prejudice

Tatler | Pride and Prejudice

Tatler | Pride and Prejudice 800 696 Hugill & Ip
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While Hong Kong in the 21st century is a more inclusive city for the LGBTQ+ community than in decades past, it is still a challenge for gay and lesbian couples to settle down and have a family.

 

Manfi Choi is expecting her first child this November. For her and her partner Heilok Wan, the pregnancy has come with a series of hurdles even before the child was conceived. “For a lesbian couple, marriage and IVF are not [legally] recognised in Hong Kong, so we had to do both overseas—the former in Toronto and the latter in the US,” Choi says. “I had to stay in the US for four months for the IVF process. But honestly, not every lesbian couple has the financial means or the time to be away.”

IVF, or in vitro fertilisation, and artificial insemination are the two methods commonly pursued by lesbian couples wishing to start a family. In Choi’s case, a non-commercial arrangement, her egg was fertilised with donated sperm in a laboratory before being implanted in her uterus; in cases where the couple opts for reciprocal IVF, the biological mother is the egg donor and the other partner serves as the gestational mother and carries the child to term.

Further, IVF and artificial insemination are the only options open to lesbian couples in Hong Kong: commercial surrogacy is illegal in the city, and while adoption is available to the LGBTQ+ community, only one partner can apply, as a single parent. Rita Ku, the partner and founder of local law firm Rita Ku and Ser, says, “The court is concerned about public policies; the commercial arrangements in respect of a child are not encouraged. That’s why surrogacy is illegal in Hong Kong.” That’s not to say Hongkongers aren’t looking into the process. “I can tell you that there have been more enquiries about surrogacy from married and unmarried same-sex and hetero couples in the last few years,” says Ku, adding that there is an increasing number of court applications for parental order for children born under surrogacy arrangements.

Wan and Choi decided to go down the IVF route because they always wanted their child to carry DNA from one of them; Choi also wanted to experience pregnancy. Locally, IVF services are provided by Kwong Wah Hospital, Prince of Wales Hospital and Queen Mary Hospital to permanent residents who are under 40 with no biological children. But Sarina Cheung, an associate at Rita Ku and Ser, points out that “only married heterosexual couples can undergo IVF in Hong Kong”; the Human Reproductive Technology Ordinance, passed in 1997, bans women from undergoing IVF unless they are married to a man. What’s more, the public health sector only covers women who want to freeze their eggs if they are undergoing treatment for cancer.

Currently, it is also a criminal offence for unmarried individuals to travel overseas to undergo commercial treatments such as IVF or surrogacy. Offenders, both men and women, face fines of up to HK$25,000 and six months in prison, rising to HK$50,000 and two years of imprisonment for a second offence. Some lesbian couples, like Choi and Wan, resort to using donated sperm in a non-commercial arrangement to avoid this issue.

These regulations are largely to do with Hong Kong’s legal definition of marriage as the union between one man and one woman. Ku explains, “Hong Kong law doesn’t accept same-sex marriage. Same-sex partners may get married elsewhere, but [even if] they are legally married in the eyes of the other courts, their legal status is not recognised by the laws of Hong Kong if they live here.”

This means that Choi, who plans to give birth in Hong Kong, has to leave her partner’s name off their child’s birth certificate. “Heilok isn’t a legal parent,” Choi says. “I have to name her as the child’s guardian in a will in case anything happens to me.” Wan adds, “The child’s grandparents can go into a legal battle to fight for the guardianship rights to the child [if Choi dies]. I don’t think [my in-laws] will, as our families have been very supportive of us, but my dad is slightly worried that if we separate, Manfi will get the child and everything.”

Such concerns go beyond legality. Jenna Collett, a Hong Kong-based lecturer who got married to her wife in South Africa and gave birth to a daughter—conceived through at-home artificial insemination—in Hong Kong, finds that the legal restrictions are spilling over to the practicality of raising their child.

“Yesterday I was going to get my daughter vaccinated at the maternal and child health centre. Only my name is on her birth certificate: if I was working and couldn’t take her, I don’t think it could have worked. That’s a little scary,” Collett tells Tatler in a phone interview in June. “My wife could say ‘I’m the mother of this child’, but there’s no legal documentation to prove that. … She [would need] … a birth certificate to prove that she is the parent of that child. Child trafficking laws are very good, but that also means, for now, all of us have to travel together as a family.”

The couple is applying for a birth certificate to be issued in South Africa, where same-sex marriage has been legalised since 2006, and has written a letter to explain their situation. But Collett says that since South Africa’s Department of Home Affairs would have to create one based on the existing Hong Kong certificate, there is no guarantee that both mothers’ names would appear.

For gay men in Hong Kong, the road to having a family is even trickier. “They can adopt a child, but the application needs to go through the Social Welfare Department, which has been taking a very conservative approach,” Ku says. “Even for [a heterosexual married couple], adoption isn’t easy. Then it will be more difficult for single parents, and then parents with an LGBTQ+ background.” The Adoption Ordinance also sets out that “an adoption order shall not be made in respect of a female infant in favour of a sole male applicant, unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order”, severely limiting the likelihood of a successful parent-child match.

This leaves gay couples with almost no options if they want a child. One gay man, who wished to remain anonymous for the purposes of this article, says that it was an ordeal when he requested for his child’s right of abode, passport and ID card from Hong Kong’s Immigration Department. In addition to submitting the child’s birth certificate, which was issued in the US—and asking for permission from his child’s surrogate mother as a courtesy—he also had to provide a DNA test that proved his biological relationship with the child. “The birth mother was no longer in the picture after the baby was born. But as far as the Hong Kong government is concerned, this mother still has the rights to the child,” he says. He adds that he later obtained another birth certificate for his child, which has his husband’s and his names. “But I was worried that if I submitted this one, it would be challenged [by the Immigration Department] because at the time it only accepted a mother and a father as the legal parents.”

On a social level, Hong Kong is becoming a more inclusive city. This year, Hong Kong will be the first Asian city to co-host the Gay Games, a worldwide sport event that promotes acceptance of sexual diversity. There are also a number of non-profit organisations such as Pink Dot HK, Pink Alliance and Rainbow of Hong Kong, which have been involved in public education and events that promote diversity, including parades, fundraising events and celebrations. Since 1989, the Hong Kong Lesbian and Gay Film Festival has been lending a mass platform to the underrepresented, and there are several prominent LGBTQ+ bars and clubs around the city.

But complete acceptance remains rare almost everywhere. Collett says, “South Africa is the first and remains the only African country to legalise same-sex marriages. But you could go to the Home Affairs Department to register your marriage and someone at department would be like, ‘I’m not doing this.’ On the ground, you can still find yourself victim to a hate crime, because people are still very conservative.” Before coming to Hong Kong, Collett worked for a year as a teacher in South Korea where her recruiters advised her to keep her sexual orientation a secret “because people had been fired for being out”.

“Hong Kong is the opposite,” she says. “There [may be limited] legal rights and protection here, but in terms of my experience with my employers, colleagues, friends that I’ve made here and people on the street, I don’t feel unsafe at all. I feel free. I don’t feel like I’m supported that much either, but I don’t need to feel supported; I just need to feel ignored—and that’s enough.” Choi agrees: “It’s more the laws of the system that are lagging behind the times when I feel our society has already moved on.”

Evelyn Tsao, a solicitor and partner at Patricia Ho and Associates who worked on a landmark 2021 case in which a divorced same-sex couple settled on co-parenting their two children, says that Hong Kong’s statutes were written many years ago, which means they don’t address many common contemporary circumstances which simply did not exist at the time. “For instance, back then, there was no IVF. The gestational mother would naturally be the mother,” Tsao points out. “But now, with reciprocal IVF, you can have a mother who is biologically connected to the child and the other who you can say is like a surrogate who gives birth to this child.”

Changing a deep-rooted legal system isn’t easy. Tsao says that the only way to challenge the law is through judicial review by the Department of Justice. “It means that whenever you come across a policy or decision by the government that you find infringes upon your constitutional rights or is grossly unfair, unreasonable or irrational under administrative law principles, you can challenge that policy or decision,” she explains. “If you win, the court will declare that the policy breaches the right to equality, and the government will have to change its policy or the statute. So the government is not actually recognising LGBTQ+ couples as having equal rights [as heterosexual couples] in these areas by making an overall change, which is a top-down approach. For now, the way LGBTQ+ rights work in Hong Kong is very much through a bottom-up challenge.”

Alfred Ip, a private client lawyer at Hugill and Ip Solicitors with more than 20 years of experience, further explains, “It’s a fairly long process to make new laws: there will be the Law Reform Commission talking about the areas to be changed, and then a drafting session, and then the draft would be brought to the Legislative Council to be read and passed. But even if someone is pushing through a bill for recognising same-sex marriage, it’s not going to be passed at LegCo because there won’t be a sufficient majority.”

In Hong Kong, The Equal Opportunities Commission protects individuals against certain kinds of discrimination through its Sex Discrimination Ordinance. Breastfeeding and pregnant women in the workplace are protected by this ordinance; but there is no mention of sexual orientation.

Cheung says that most LGBTQ+ couples who seek legal change are less focused on changing the marital system per se and more on acquiring rights equal to those enjoyed by heterosexual couples. It began with gay immigration officer Angus Leung’s court battle against the Secretary for the Civil Service in late 2015, when he asked for his husband Scott Adams to be included in the public sector’s spousal benefits and to be able to file a joint tax return, as opposite-sex couples do. Leung finally won after four years of appeals from both sides. In 2018, British lesbian expatriate “QT” successfully challenged the Department of Justice’s denial of her dependent visa application, claiming, as the spouse of someone granted an employment visa to work in Hong Kong, she should have the right to stay. And in 2020, the High Court ruled that same-sex married couples can inherit the estate of their deceased spouse without a will, after gay widower Henry Li applied for a judicial review. “The government is not recognising our marriage per se,” Li says. “But for the purpose of applications that concern spousal benefits, the government is saying that it cannot give differential treatment on paper solely because someone is gay.”

These few successful cases have brought fundamental changes to the way the LGBTQ+ community is treated. Not all have gone smoothly, and most are a long, costly and draining battle. Li’s husband Edgar Ng, who suffered from long-term depression, took his life in December 2020. After his death, Li has continued working on Ng’s two judicial review applications against the government: one, seeking the right to live in and co-own Ng’s government subsidised flat; and the second regarding spousal inheritance. The High Court ruled in favour of Li again for the former in June 2021. But the government has since then appealed both the housing and inheritance rulings. Li is waiting for the judgement of the first case, while the hearing for the latter is scheduled for this December.

On top of these ongoing proceedings, Li had been seeking the right to be involved in his late husband’s postmortem arrangements, including identifying the body and handling the cremation and burial arrangements, which, according to the law and before this judicial challenge, could only be done by family members of the deceased. “It was an out-of-body experience. I was shocked that my husband died, and then less than 12 hours later at the morgue, I was told that my relationship basically didn’t exist; they didn’t recognise me [as Ng’s husband],” Li says, still choking up in the video call with Tatler in June. “Eventually, my relationship with Edgar’s family deteriorated, and they revoked the authorisation [for me to make post-death arrangements]. That was when I filed a judicial review, or else I basically couldn’t do anything. It still angers and hurts me. But it didn’t at the time—it was just so shocking.” Li finally settled the case last October with the government, who clarified that same-sex married couples would not be treated differently from straight married couples as far as the challenged after-death arrangements were concerned.

“I always think that these people who are willing to change the law are heroes,” Ip says. “Angus Leung brought his case all the way to the Court of Final appeal. He won, and he was covered by legal aid and could recover costs from the government. But the process cost him hundreds of thousands of dollars. How many people can afford that? Should the LGBTQ+ community be subjected to that kind of challenge? Is the LGBTQ+ community being bullied by the current system?”

Not all are looking to be frontline heroes in or out of court. Back in the future mothers’ home, Choi says she and Wan aren’t particularly vocal about the quest for equality, and don’t take part, for example, in Pride parades. “But we would never hide [our identities]. We are just trying to live like a normal couple. Our friends have come to us and said that we have inspired them to get married and pursue a family life. I feel that’s how we’re helping.”

 


The article was originally published on Tatler by Zabrina Lo

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