The legal landscape surrounding adoption rights presents a revealing lens through which to examine a society’s commitment to equality and child welfare. In Hong Kong, while adoption by single parents is legally permissible, same-sex couples face substantial barriers that bear little relation to parenting ability or a child’s best interests.
The current state of Adoption Law in Hong Kong
Hong Kong’s adoption regime is governed by the Adoption Ordinance (Cap. 290), which permits adoption by single individuals or applicants jointly as 2 spouses (which is understood as heterosexual married couple). The law ostensibly prioritizes the “best interests of the child,” yet in practice, same-sex couples encounter systemic discrimination.
Recent case law illustrates these challenges. In B v. B & another [2024] HKCFI 3356, the Family Court, appears to be troubled by a sole applicant who is gay and married, raised questions on an adoption application, and directed the matter be transferred to the Higher Court, stating that such application “may have wide implications and precedential effect on future adoption cases”. Indeed, the High Court granted the adoption order in December 2024 and made various observations in the Judgment which is of valuable assistance to future and similar applications. In particular the High Court:
- reemphasised that the test is “best interests of the child” and that sexual orientation of the applicant in and of itself is not a determining factor but only one of the many factors to be considered and it is case specific; and
- confirmed that the word “spouse” is not defined under the Adoption Ordinance but accepts that the Director of Social Welfare referred the same to .
The unclear status of married same sex couple has a propounding implication :
- As the adoption order only confer rights (and obligations) on the applicant, they will have to decide who should be the applicant and the other partner will get no rights over the child under the Adoption Ordinance.
- Male gay couples, unless they apply jointly under the Adoption Ordinance and risk the order not being granted, they may not be able to adopt a female child due to the restriction under section 5(3) of the Adoption Ordinance. For the avoidance of doubt, this does not apply to lesbian couples who is free to adopt child of male sex.
- It might prevent step-parent adoption all together. Under the Adoption Ordinance, if the applicant is a person who is “married” to a parent of the infant, then he or she may apply solely, and the adoption order would not affect the rights of the other parent. However, if same sex marriage is not recognized, then both parties would have to apply jointly and we are back to the same dilemma (i.e., whether same sex couples can even apply jointly in the first place).
Comparative perspectives: How other jurisdictions approach adoption
The United Kingdom
Since 2005, same-sex couples in England and Wales – as well as in Scotland – have enjoyed full adoption rights. The law evaluates prospective parents based on their ability to provide a stable, loving home — not their sexual orientation. British courts have consistently held that a child’s welfare is best served by removing discriminatory barriers to adoption.
Continental Europe
European jurisdictions demonstrate a spectrum of approaches. Germany and France, for example, legalized joint adoption by same-sex couples in 2014 and 2013, respectively.
The Netherlands stands as a pioneer, having legalized same-sex adoption in 2001 alongside its groundbreaking same-sex marriage legislation. Spain followed in 2005, and Portugal in 2016, all three nations demonstrating that inclusive adoption policies pose no threat to child welfare while advancing social equality. These jurisdictions evaluate prospective parents solely on their capacity to provide a loving, stable home.
Meanwhile, Poland and Hungary maintain restrictive regimes that privilege heterosexual married couples, reflecting broader political resistance to LGBTQ+ rights.
The United States
Following the Supreme Court’s landmark 2015 decision in Obergefell v. Hodges, same-sex adoption rights were recognized nationwide. However, religious exemption laws in certain states permit adoption agencies to refuse LGBTQ+ applicants—a compromise that continues to spark litigation.
Asia-Pacific
Australia’s nationwide legalization of same-sex adoption in 2018 marked a watershed moment in the region. Taiwan, despite its 2019 marriage equality breakthrough, still limits same-sex couples to stepchild adoption — a reminder that progress is often incremental. Thailand has now joined these progressive jurisdictions, with its Marriage Equality Act coming into full force in 2025, which explicitly grants same-sex couples equal adoption rights – a significant step forward for LGBTQ+ family rights in Southeast Asia.
Why Hong Kong’s approach falls short
Hong Kong’s adoption framework suffers from three principal deficiencies:
First, the Adoption Ordinance has not kept pace with social change. Enacted decades ago, it fails to account for the diversity of modern families.
Second, judicial interpretation remains unduly influenced by conservative social attitudes. Department of Justice frequently cite nebulous “public opinion” to justify maintaining the status quo, despite growing evidence that children thrive equally well in same-sex households.
The way forward: Legal and societal reform
Hong Kong must align its adoption laws with international human rights standards. Potential avenues for reform include:
- Legislative amendment
The Adoption Ordinance should be updated to explicitly permit joint and second-parent adoption by same-sex couples, following the example set by the UK and Australia. - Strategic litigation
Advocates should pursue targeted legal challenges to advance the boundaries of existing laws, emphasizing the best interests principle and Hong Kong’s obligations under international conventions. - Public engagement
With surveys indicating that 60% of Hongkongers support marriage equality (eg. as per research carried by The University of Hong Kong in 2023), policymakers must recognize that public sentiment no longer justifies discrimination.
Final thoughts
Hong Kong’s current adoption regime lags behind progressive jurisdictions, depriving children of loving homes and perpetuating inequality. The legal profession has a duty to advocate for change — not only through challenging the legal status quo but by shaping public discourse. As family structures evolve, so too must the law. The right to build a family should never depend on sexual orientation.
