Legislative Barriers

The legislative barriers have been one of the most significant obstacles faced by Rainbow Families. These barriers not only hinder the ability of lesbian and gay couples to form and maintain families, but they also perpetuate discrimination and inequality within our legal system. In this following, we will explore some of the key legislative barriers encountered by these couples, focusing on adoption, in vitro fertilization, surrogacy, and the challenges of raising a child.

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Adoption of child

The adoption of children is regulated by Cap. 290 Adoption Ordinance in Hong Kong (HKSAR, 1956). One of the adoption requirements is that married couples should have a stable marriage (at least married for 3 years). While for single applicants should have sufficient child care ability and other support.

However, it is important to note that Hong Kong does not recognize same-sex marriage. According to the Marriage Ordinance (HKSAR, 1876), a registered marriage is defined as a voluntary union for life between one man and one woman. This poses a barrier to same-sex LGBT couples applying for adoption as a married couple.

The only solution would be for one party of the couple to apply for the adoption of a child as a single applicant. Even if the application is successful, only the applicant will be legally recognised as the parents of the child and own the custody. In other words, only one member of the couple will be acknowledged as the child's parents. Legal issues also arise when raising a child as a same-sex couple in Hong Kong.

Santo and Walter are a pair of gay couple. They have adopted their son Ethan in 2004 from China. And now they are living in Hong Kong.

(Leung Suet Yi, 2017)

Heilok Wan (bottom) and Manfi Choi (top) are lesbian couple in Hong Kong. They build their family by having Manfi have undergo in vitro fertilization to in US using Heilok's egg and a donated sperm. And their baby was born in November 2022.

(Lo, 2022)

Artificial insemination

For lesbian couples, artificial insemination will be another option. Through receiving a sperm donation, one party of the couple can become pregnant and give birth to a baby. In Hong Kong, artificial insemination is bound by Cap. 561 Human Reproductive Technology Ordinance (HKSAR, 2000).

According to the law, to undergo artificial insemination in Hong Kong, the couple should fulfils two requirements. First, they should be in a husband and wife relationship. Second, the couple should be proved to be infertile, meaning that they are unable to get pregnant after one year of unprotected sex. Obviously, lesbian couples cannot fulfil these requirements. Therefore, lesbian couples can only pursue artificial insemination in foreign countries where it is legalized.

Surrogacy

In Hong Kong, the surrogacy arrangement is governed by Cap. 561 Human Reproductive Technology Ordinance (HKSAR, 2000). Theoretically, the surrogate arrangement is legal if it does not involve any monetary transactions. However, in reality, it may be difficult or even impossible for a lesbian or gay couple to find a woman willing to give birth to a baby for them voluntarily. Therefore, the only solution would be to adopt surrogacy in a foreign country as well.

Global Surrogacy is a surrogacy company that provide surrogacy arrangement for Hong Kong people.

(Global Surrogacy, 2023)

n 2022, a pair of lesbian couple applied to challenge the definition of “parent’ in Parents and Child Ordinance. Although High Court judge dismissed the mother's application, but they declared her as a “parent under common law”.

(Cindy, 2023)

Raising a child

After giving birth to the child, the issue of identity for the lesbian or gay couple becomes controversial. According to the regulations in Cap. 429 Parent and Child Ordinance (HKSAR, 1993), only the person who gives birth to the child is recognized as the mother, and the man in a marriage relationship with the mother is considered the father. In the case of lesbian and gay couples, it is impossible for both parties to fulfill these requirements.

In many cases, lesbian or gay couples would apply for guardianship of the child through the court. This allows both parties to have joint custody (Cindy, 2023). However, there is still a significant difference between being parents in the eyes of the law and being guardians. The role of a guardian ends when the child reaches the age of 18, while being recognized as the father or mother, i.e., a parent, of the child is a lifelong identity.