1. The background to the law on heterosexual, monogamous marriage

Since October 1971, the only legally recognized form of marriage in Hong Kong is marriage as defined under the Marriage Ordinance, which in turn is based on the English common law decision of Hyde v Hyde. Footnote ⁹ Previously there had been a variety of acceptable forms of marriage reflecting the different cultural values of different sections of the Hong Kong population. These included not only marriage under the Marriage Ordinance for non-Chinese since 1876 but also multiple forms of Chinese marriage for ethnically Chinese residents of Hong Kong, including the potentially or actually polygamous Chinese customary marriages. However, these Chinese forms of marriage were expressly outlawed by the Marriage Reform Ordinance, enacted in 1970, and the preference for the Hyde v Hyde form of marriage was asserted.Footnote ¹⁰ The privileged status accorded to this monogamous, heterosexual form of marriage is given legislative form in s 40 of the Marriage Ordinance as follows:

Moreover, under s 20(1)(d) of the Matrimonial Causes Ordinance Footnote ¹¹ enacted in 1972, a marriage which is not between parties of the opposite sex is explicitly stated as being void. This latter section is materially identical to the English legislative provision in s 1(c) of the Nullity of Marriage Act 1971. That statutory provision was introduced into English law following the decision in Corbett v Corbett (otherwise Ashley) Footnote ¹² that parties to a lawful marriage must be respectively male and female as designated at birth, based upon their biological characteristics. Hong Kong law’s traditional insistence on marriage as a heterosexual union is demonstrated by an application for judicial review, W v Registrar of Marriages,Footnote ¹³ which challenged the constitutional validity of precisely the statutory provisions relating to gender. The case had to progress through the full hierarchy of the Hong Kong courts before the applicant was successful.

2. The recent restatement of the heterosexual nature of marriage in Hong Kong

The background to the W case began in 1997 when Hong Kong’s “mini-constitution”, the Basic Law,Footnote ¹⁴ negotiated by the United Kingdom and China prior to the handover of sovereignty from the former to the latter, came into force. The Basic Law protects Hong Kong residents’ fundamental rights, including the right to marry.Footnote ¹⁵ All provisions of domestic legislation must comply with the terms of the Basic Law. Those that do not may be declared invalid by the courts. Within this constitutional framework, W, a Hong Kong permanent resident, made an application for judicial review challenging the lawfulness of aspects of the Marriage Ordinance.Footnote ¹⁶ W had been registered at birth as male, but was subsequently diagnosed with gender identity disorder. W then underwent psychiatric assessment and hormonal treatment and lived for a period of “real life experience” as a woman. W was subsequently given sex reassignment surgery in Hong Kong at hospitals managed by the Hospital Authority.Footnote ¹⁷ The Hospital Authority then certified that the applicant’s gender should now be recognized as female. Consequently, W’s educational certificates, identity card, and passport were amended to show her new name and acquired gender. Subsequently, W sought confirmation from the Registrar of Marriages that she could now marry her boyfriend in her acquired female gender. In response, the Registrar determined that only heterosexual marriage was possible under s 40 of the Marriage Ordinance and gender for the purpose of marriage was by biological sex as designated at birth and recorded on the birth certificate. Any later medical intervention or other change to biological sex would not be taken into account.

The application for judicial review comprised two alternative submissions. First, the Registrar had misconstrued the meaning of “male” and “female” as used in the legislation. Second, if he had not so misconstrued those provisions, then s 40 and s 21 of the Marriage Ordinance which replicates the English common law definition of marriage as given in Hyde v Hyde, were unconstitutional in that they infringed W’s right to marry under art 37 of the Basic Law and/or art 19(2) of the Hong Kong Bill of Rights.Footnote ¹⁸

The applicant lost at first instance and in the Court of Appeal. However, on appeal to Hong Kong’s highest court, the Court of Final Appeal, she won. The decision of the Court of Final Appeal turned on what constitutes gender identity for the purposes of marriage. The court held that the Corbett meaning of “woman” was based on biological aspects of gender identity only and thus too narrow. However, the court went to great lengths to state that:

Instead, the Court of Final Appeal decided in favour of W, in part because unless her reassigned gender was legally recognized, the “very essence of the right to marry”Footnote ²⁰ was violated. The restrictive statutory meaning of “man” and “woman” meant that the applicant, designated male at birth, was precluded from marrying a man. However, in her newly acquired female gender, and feeling herself to be a heterosexual woman, she wanted only to marry a man. Thus, to say that in her male “birth gender” she was free to marry a woman and therefore free to exercise her right to marry was, in her circumstances, meaningless.

The Court of Final Appeal’s very careful delineation of the case as not raising issues pertaining to same-sex marriage is indicative of the resistance in Hong Kong to forms of marriage other than a heterosexual marriage. Further confirmation of this resistance can be seen – despite this clear judicial statement that on its facts the application in W did not present any need to consider same-sex marriages – in the subsequent media coverage of the case. There were reports about anxieties that a finding in W’s favour would sufficiently extend society’s conception of marriage to open the door to the possibility of same-sex marriage in Hong Kong.Footnote ²¹ The strong reluctance on the part of the government to engage with the question of same-sex marriage was clearly apparent when, as a consequence of the W decision, the Hong Kong administration introduced a Marriage Amendment Bill in the Legislative Council. This Bill was intended to implement the necessary changes arising from the court’s finding of constitutional invalidity of s 40 of the Marriage Ordinance. In the accompanying briefing notes, the Hong Kong administration made clear that the possibility of opening up discussion on same-sex marriage was expressly curtailed and indeed stated explicitly that nothing in the legislative proposal would change the heterosexual nature of marriage in Hong Kong.Footnote ²² Thus, the domestic family law norms in relation to marriage, as promoted by the Hong Kong government and presented in the domestic legislation, are firmly rooted in the concept of marriage as a heterosexual union.

1. Parenthood where conception is by natural means: a focus on biology

Where a birth is the result of natural conception, Hong Kong’s law on motherhood follows the English common law, declaring that motherhood is based on giving birth: “Mater semper certa est, pater incertus est”.Footnote ²³ Such is the law’s respect for the biological link between birth mother and child that even Chinese customary laws, which would usually be respected as having prior standing in terms of family status for Chinese inhabitants of Hong Kong, will not override the biological connection between mother and child. For example, where a husband and wife divorce, whilst the wife’s connection to her husband and his family is severed, the court has refused to accept that her connection to her children of that marriage is also severed.Footnote ²⁴ The Hong Kong law on fatherhood also followed the English common law presumptions,Footnote ²⁵ but is now given legislative form in s 5 of the Parent & Child Ordinance, enacted in 1993.Footnote ²⁶ The legal recognition of fatherhood was, at the time of enactment of the Ordinance, extended so that a father may also be legally recognized as such both at the request of the mother (through a declaration by the mother and a statutory declaration by the father), as well as at the request of the “father” (through a declaration by him and statutory declaration by the mother).Footnote ²⁷

2. The law on parenthood by assisted conception

Where birth is the result of assisted conception, parenthood is regulated by both the Parent and Child Ordinance Footnote ²⁸ and the Human Reproductive Technology Ordinance. Footnote ²⁹ The latter was enacted in 2000 following a long process of consultation and debate. Under these intersecting legislative frameworks, the definition of parenthood is restrictive. It is restrictive, first, in the sense that the only people who can become legally recognized parents via some form of reproductive technology are married, infertile couples.Footnote ³⁰ Second, under s 14 of the Ordinance, where the reproductive technology is used in relation to a surrogate mother commissioned by a married couple, the procedure must use the gametes of at least one of the married couple:

The restrictive nature of the legislative framework for surrogacy arrangements outlined above is further limited by the provisions that surrogacy arrangements are unenforceableFootnote ³² and commercial surrogacy is prohibited.Footnote ³³

Motherhood is defined under s 9 of the Parent and Child Ordinance as gestational and thus in a surrogacy situation, the legally recognized mother will, if and until changed by court order, be the surrogate. Fatherhood via assisted conception, and this includes surrogacy, is defined in s 10 of the Parent and Child Ordinance:

In surrogacy terms, this means that, if the surrogate is married, her husband will be the father of the surrogate child. If the surrogate mother is not married, then a man attending treatment with her would be the father; this could of course include the husband in the commissioning couple.

Given these statutory provisions, the commissioning couple, to be deemed legal parents of the child, must apply to court for a parental order under s 12 of the Parent and Child Ordinance after the child is born. The conditions pertaining to the grant of a parental order under s 12 are also restrictive: there must be a biological link between the child born and at least one of the commissioning couple (either gametes of husband, wife, or both were used to create the embryo implanted into the surrogate); the application for the order must be made within six months after the birth; the child must be living with the husband and wife or either of them at the time of the application; the husband or wife or both must be domiciled in Hong Kong, have habitual residence of one year in Hong Kong, or have a substantial connection to Hong Kong; the husband and wife at the time of making the order must be over 18 years old; the legal father and mother of the child at birth must have given informed consent freely; no money has changed hands beyond reasonable expenses; and the court has jurisdiction whether the surrogate’s pregnancy and the subsequent birth of the child took place in Hong Kong or not.

3. The consequences of Hong Kong law’s preference for heterosexual married parents

Taking into account the various statutory limitations on parenthood via assisted reproduction, it seems clear that the domestic legal norm for parenthood is grounded squarely within a heteronormative conservative tradition.

In Hong Kong, only one case on the application for a parental order arising from a surrogacy arrangement has thus far come before the courts. That case is Re D (Parental Order: s 12 Parent and Child Ordinance (Cap 429)), which is outlined above in the introduction.Footnote ³⁴ As noted above, although the applicants in this case were given leave to transfer to the High Court, the case has not yet been listed. In the same-sex partnership case of QT, when faced with a legal challenge, the Immigration Department offered, on “humanitarian” grounds only, a dependant visa to the applicant’s partner.Footnote ³⁵ Whilst there is no evidence of a similarly exceptional offer in the Re D case, one can ask whether a similar solution may have been offered. However, this is pure speculation as no information is available, other than the fact the case has not yet been listed.

Other reports of children born via surrogacies outside of the legislative conditions necessary for the award of a parental order are equally inconclusive. For example, the media has reported at least one high profile overseas surrogacy arrangement undertaken by an unmarried Hong Kong man, resulting in the birth of three sons. Following referral of the matter to the relevant authorities, the media reported: “The case is pending police investigation, said a government official, who noted that the law would apply to cases even in which payment is made outside of Hong Kong.”Footnote ³⁶ The most recent reports available indicate that no action is known to have been taken: neither to confer Hong Kong status on the children as the legal children of the commissioning man despite his unmarried status and consequent breach of the conditions for a parental order under s 12, nor to investigate whether an offence had been committed if the surrogacy arrangement was later found to be commercial in nature.Footnote ³⁷ There are of course evidential problems in bringing a prosecution for extra-territorial conduct,Footnote ³⁸ but this does not change the fact that the reported behaviour gave rise to questions about the application of the law.

1. The dual domicile rule

The validity of marriage can be addressed in terms of essential validity and formal validity. In relation to essential validity, Hong Kong has followed the English law’s traditional approach: capacity to marry is determined by each spouse’s ante-nuptial domicile,Footnote ³⁹ so that where both spouses have capacity to marry under their ante-nuptial domicile, the marriage will be a valid marriage. This is the “dual domicile” rule.Footnote ⁴⁰ In Hong Kong, questions as to whether a “marriage” is an essentially valid marriage have arisen primarily in relation to foreign polygamous marriages or regarding Chinese customary marriages and unions of concubinage within Hong Kong. The decisions of the courts in the polygamy cases have applied the ante-nuptial, dual domicile rule, with the result that if the parties’ ante-nuptial domicile would view the marriage as valid, then Hong Kong law will treat the marriage as valid.Footnote ⁴¹ However, there may be further express statutory limitations on the power of the Hong Kong courts to make certain orders in relation to such a marriage.Footnote ⁴²

2. QT v Director of Immigration and the limits to the dual domicile rule

The argument was made in QT that if polygamous marriages, which depart from the Hyde v Hyde formula of marriage as between “one man and one woman”, could be legally recognized in Hong Kong on the basis of the dual domicile rule, then so should same-sex partnerships analogous to marriage.Footnote ⁴³ The Court of First Instance, however, declined to accept this argument. It stated that whilst the polygamous marriage itself may be accepted as a valid marriage, in relation to immigration decisions only one of the multiple wives could successfully apply for a dependant visa. The Court held fast to the legal norm of marriage as a monogamous heteronormative institution, stating that:

In response, counsel argued that this was to “turn a blind eye” to the polygamous nature of the marriage itself and thereby tacitly condone a form of marriage which fell outside the monogamous norm established by the Hyde v Hyde formula for marriage.Footnote ⁴⁵ This was not accepted by the court. However, was the court’s approach right? Does it matter whether a polygamous marriage can be made “to look like” a monogamous marriage?

On a literal application of the “dual domicile” rule, a wide range of conceptions of marriage would have to be accepted for foreign domiciled married couples in Hong Kong. Hong Kong law does not stipulate the extent to which foreign marriages must fit the Hyde v Hyde formula in order for them to be accepted as legally recognizable marriages, although it clearly does make these judgments. Therefore, how monogamous must a monogamous marriage be? How heterosexual must a heterosexual marriage be? If the post-gender reassignment applicant in W had married a woman, albeit in her birth gender (i.e. male), the marriage would legally be a heterosexual one, but in the eyes of the public it would have looked very much like a same-sex marriage. If the Director of Immigration will accept a polygamous marriage as monogamous as long as only one wife is given the title of “spouse” on a visa, where is the line to be drawn?

As Graeme Johnston notes, “in future, given social and legal changes across the world, it seems likely that the important practical questions will mostly relate to same-sex marriages and analogous relationships.”Footnote ⁴⁶ He goes on to say that “in so far as the relationship will not be recognized in that full sense, the further question arises as to whether recognition in some lesser sense may be given to the relationship by the Hong Kong court”.Footnote ⁴⁷ At present, in same-sex partnership or marriage cases, for those whose ante-nuptial domicile is Hong Kong, it is clear that only a heterosexual marriage will be legally recognized.Footnote ⁴⁸ For those couples whose ante-nuptial domicile recognizes same-sex partnerships as marriages or analogous to marriage, the decision in QT v Director of Immigration departs from the “dual domicile” rule and accepts the view of the Immigration Department that same-sex partnerships will not be deemed analogous to marriage. Consequently, it is now necessary to explore and interrogate further the validity of the court’s decision allowing the domestic marriage norm to oust the private international law convention of recognition of marriage under the “dual domicile” rule.

1. Whether, and in relation to whom, private international law conventions are engaged

The extra-territorial reach of the legislation relating to overseas surrogacy arrangements and the subsequent conferral of parental status on a commissioning couple might suggest that the private international law question is redundant and that Hong Kong law must always be the applicable law. However, under the Parent and Child Ordinance, those who are domiciled in Hong Kong, or have resided there for one year prior to the application, or have a substantial connection with Hong Kong may apply for a parental order. However, it is not clear whether the legal restrictions govern all those who are eligible to apply for a parental order or only those who are domiciled in Hong Kong. Furthermore, this approach looks only at the commissioning couple and fails to consider the position from the perspective of the child born to the surrogate. For the child, there are two possible options: the child has the surrogate’s domicile or, as for babies born in the United States, the child has American citizenship. If the child’s domicile respects the surrogacy arrangement, does that change how the Hong Kong law applies?

2. The consequences of extra-territorial provisions on legal recognition of parenthood via surrogacy

Turning to the practical consequences of the extra-territorial nature of Hong Kong’s laws on surrogacy, a strict application of Hong Kong law does not take into account an important fact: a number of Hong Kong residents are nonetheless entering into surrogacy arrangements overseas. Some will do so as unmarried couples or individuals and for some, these arrangements may also be commercial in nature. Thus, Hong Kong residents are undertaking such surrogacy arrangements irrespective of Hong Kong law.Footnote ⁴⁹

Consequently, the children born and brought into Hong Kong are not deemed to be children of the commissioning adults. They potentially have no right of abode in Hong Kong, nor do they possess any of the rights and interests that flow therefrom. They are also not recognized as being related to the commissioning adults. This failure to engage with both the reality of parenthood via surrogacy and the possible solutions arising from private international law results in numerous detrimental practical consequences in terms of the would-be parents’ ability to make decisions for their children, for example, consent to medical treatment.

There is also the question of international comity. Jurisdictions such as the state of California, for instance, make express provision for the conferral of parental status on commissioning couples who comply with certain criteria.Footnote ⁵⁰ The parental status is given prior to the birth of the child and registered on the birth certificate, and it is not simply a form of adoption.Footnote ⁵¹ The rigidity of the Hong Kong legislation and the absolute dearth of case law in Hong Kong means that we have no way of knowing whether the courts would rely on Hong Kong law to oust the competing surrogacy law norms of the other relevant jurisdictions in order to maintain Hong Kong’s own conception of the legitimate “ideal family”.

1. The Hong Kong establishment’s perception of values inherent in the domestic jurisdiction regarding marriage

Following Blom’s analysis as one way to identify public policy, the first step is to articulate the values inherent in the domestic jurisdiction. The Hong Kong government’s view is that same-sex marriages would violate the accepted societal norms and values of Hong Kong. This view manifested itself in the Hong Kong administration’s briefing document following the Court of Final Appeal’s decisions in the W case,Footnote ⁶⁰ which confirmed that marriage in Hong Kong would remain heterosexual. The connection between values and policy was also identified in W by the Hong Kong courts. As Marsh and Ramsden note:

A further expression of the Hong Kong establishment’s values in relation to marriage came with the introduction of same-sex marriage in English law. The Hong Kong government raised an objection to the solemnization of same-sex marriages at the British Consulate in Hong Kong.Footnote ⁶² In response to a question in the Legislative Council, the Secretary for Mainland and Constitutional Affairs said: “Same-sex marriage or civil partnership not contracted in compliance with the requirements under Hong Kong law will have no legal effect in Hong Kong, i.e. will not be legally recognized as valid marriage in Hong Kong.”Footnote ⁶³

2. Challenging the establishment’s perception?

Commenting on Hong Kong’s anti-gay culture, Chan has said that:

Chan deconstructs the “Chinese values” and “Christian values” arguments against the acceptance of same-sex relationships, saying that they are not an accurate representation of the values claimed and that in fact, the way they are represented is only a partial view of the cultural discourse on same-sex relationships. In other words, this perspective is a snapshot represented as a totality.Footnote ⁶⁵ Since Chan’s article was written, two empirical surveys have sought to identify the current domestic values in relation to the acceptance or otherwise of same-sex relationships in Hong Kong. In the first, Loper, Lau, and Lau noted that “government authorities claim that same-sex marriage is highly controversial and point to an apparent lack of public approval for legalizing same-sex marriage.”Footnote ⁶⁶ Their research found that whilst there was no majority support for the legalization of same-sex marriage, a large majority of people in Hong Kong support conferring rights on committed same-sex couples.Footnote ⁶⁷ Later that year, the Family Council released the findings of its own survey which showed that the majority surveyed did not accept same-sex relationships but there was greater acceptance amongst the younger respondents. Thus, it seems that in terms of reflecting Hong Kong’s contemporary values, two trends can be discerned: a nuanced response toward the extension of same-sex rights coupled with a generational shift.

Moreover, the shift towards greater acceptance of same-sex rights is not confined to the public. Two recent legislative innovations suggest that the Hong Kong government and law-makers are more willing to recognize and protect those in same-sex relationships.Footnote ⁶⁸ First, in 2009, legislation on legal injunctions to protect those subject to domestic violence was extended to apply to same-sex partners under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189). The second innovation concerns the Electronic Health Record Sharing System Ordinance (Cap 625), which defines who can be a “substitute decision-maker” for non-competent patients. In the original Bill, the “substitute decision-maker” was defined as “immediate family members” and related to the patient by blood, marriage, adoption, or affinity. However, some legislators successfully argued that a person cohabiting with the patient should also be included. Thus, in the enacted Ordinance, a “substitute decision-maker” is now defined to also include “a person residing with the health-care recipient”, and this may well include same-sex partners.

Whilst the government may be able to reference conservative social values as a justification for invoking the public policy exception to the recognition of same-sex marriage, this is not a comprehensive representation of the values of the Hong Kong public. It is therefore arguably not a “legitimate” representation of the norms shaping the “ideal family” in Hong Kong.

3. Values from international legal sources

The next step in identifying Hong Kong’s public policy, following Blom’s analysis, is to consider values from international legal sources. Hong Kong has incorporated, almost in its entirety, the International Covenant on Civil and Political Rights (ICCPR) into Hong Kong law via the Hong Kong Bill of Rights Ordinance (Cap 383) (BORO). The Covenant is further protected in Hong Kong law through Article 39 of the Basic Law. Article 19 of BORO incorporates Article 23 of the ICCPR, stating that the “right of men and women of marriageable age to marry and to found a family shall be recognized”. Moreover, Article 37 of the Basic Law “guarantees that the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”. More broadly, Article 25 of the Basic Law provides that all Hong Kong residents will be equal before the law while Article 22 of the BORO states:

The decision in Leung v Secretary for Justice confirmed that the word “sex” in Article 22 encompasses “sexual orientation”Footnote ⁶⁹ and therefore, equality of treatment is expected. Ramsden and Marsh have since made the argument – distinguishing the UN Human Rights Committee’s restrictive interpretations of the ICCPR’s Article 23 right to marry in Joslin v New Zealand – that Article 37 of the Basic Law, unlike Article 23 of the ICCPR, is gender neutral and further that:

4. Lawful restrictions on the right to marry?

It has been said that the right to marry may be lawfully restricted in order to achieve a rational and legitimate purpose. It has also been argued by some that marriage as a heterosexual union, in conformity with the Hyde definition, forms the basis for stable families living in a stable society. Opponents of same sex marriage advocate that it is therefore acceptable to restrict the right to marry to heterosexuals in order to pursue a rational and legitimate aim of social stability.Footnote ⁷¹ However, the validity of this view has been rejected by the courts. In the W case, the Court of Final Appeal found that although societal consensus may be a justification for extending the scope of a right, “[r]eliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights”.Footnote ⁷² Similarly, the Court of Appeal in Leung v Secretary for Justice observed that the “[c]ourt must ... be acutely aware of its role which is to protect minorities from the excesses of the majority”.Footnote ⁷³ The court in QT v Director of Immigration seems to accept this, albeit obliquely, by distinguishing the facts of QT from precedent cases in which the purported aim of restricting applicants’ rights was to promote a traditional form of family life:

The court maintained that immigration policy, in contrast to a policy to promote a majority view of what constitutes a “proper family”, is a rational and legitimate reason to restrict the categories of persons who are eligible for a dependant’s visa. Further, restriction of immigration based on “the bright line” of married or unmarried status is justifiable because immigration control must be based on what can be lawfully achieved. However, the connection between tight immigration control and the use of the married/unmarried distinction arguably is not rational. The court stated that:

This does not address the very core meaning of the visa being sought: a dependant’s visa. Surely, the appropriate cut-off point to achieve the legitimate, rational aim of immigration control should not be whether someone is married to the sponsor or not. Rather, it is whether there is a true relationship of dependence, understood within a context of permanency, between the sponsor and the alleged dependant, including intimate partners, children, elderly parents and siblings. In terms of a rational connection between immigration restrictions and immigration control, the dependant visa is not given only because of a marriage certificate but because the parties concerned are dependent upon one another for any combination of a range of needs: financial, emotional, psychological, care-giving. These factors may be present in a marital relationship but are not confined to marriage.

As to the argument that immigration policy can only be based on what is “lawfully” possible, dependence between cohabiting same-sex partners can be recognized without condoning “unlawful” behaviour. Homosexual conduct was decriminalized in Hong Kong in 1994, and since the decisions in Leung Footnote ⁷⁶ and Yau,Footnote ⁷⁷ differential treatment of homosexual and heterosexual sexual activity in the criminal law has been declared unconstitutional. Thus, contrary to the court’s reasoning, the “lawful” attainment of the legitimate aim of immigration control is not undermined by moving from reliance on production by an applicant of their marriage certificate to the requirement of evidence of dependence. Arguably, the court’s reliance on “lawful marriage” as the shaping factor for a “bright line” distinction in terms of eligibility for a dependant’s visa is a distraction rather than a rational connection between tight immigration control and the need to attract talented foreigners to Hong Kong. Thus, it is argued here that the court’s finding on this issue is not adequately convincing and does not provide a firm foundation for the claim, even in the context of immigration control, to a public policy exception to Hong Kong’s private international law commitments.

5. The “current” public policy on same-sex marriage in Hong Kong

By combining Blom’s categories of the interests of the domestic jurisdiction and values derived from human rights norms already adopted in Hong Kong, it seems that there are potential representations of Hong Kong’s current public policy on same-sex marriage which differ from that claimed by the Hong Kong government. Indeed, the fact that the government’s stance is based on conceptions of marriage that are drawn from English legislation imposed by a predominantly English Executive during English rule is further cause for thought. Can the outdated legislation on which the government relies, and from which England has since departed, truly be said to reflect the values and wishes of Hong Kong people?

Given the analysis above, the implication for public policy formation in Hong Kong is that if Hong Kong does not actually embrace the validity of same-sex marriage, then it should at least prevent discrimination by recognizing the relationships of dependence between same-sex spouses and partners. Where the courts are called upon to determine claims to legal recognition of those relationships, they should do so in a way that acknowledges the requirements of the universal human rights norms to which Hong Kong is committed and the shifting and nuanced local population’s values as to marriage and same-sex relationships.

Where overseas family law norms are in competition with domestic law norms, the courts should not simply reiterate the “lawful” status of heterosexual marriage in Hong Kong and the factually different legal status of unmarried and married couples in Hong Kong. Rather, they should engage with the conflict of laws points presented to it. Where argument is submitted to the court that the laws and public policy of Hong Kong do not recognize the family law norm claimed by the foreign domiciliaries, then the court should confirm the disparity between the foreign law and Hong Kong law and interrogate the government’s definition of “public policy” with a view to determining its legitimacy. Consequently, should the claimed public policy not be legitimate, as in current and accurate, the court should apply the principle of comity and respect the personal laws of those foreign domiciliaries. Under such an analytical framework, it is submitted that the court should have ousted the domestic law’s conceptualization of the “ideal family” and awarded the applicant in QT a dependant’s visa.

1. Competing perceptions of the values inherent in the domestic jurisdiction regarding parenthood via surrogacy

First, in relation to Blom’s category of “values inherent in the legal institutions of the domestic jurisdiction”, values similar to those invoked to oppose same-sex marriage have been articulated. In presenting the Human Reproductive Technology Bill for the Legislature’s consideration in 1998, the Hong Kong administration proposed that “RT [reproductive technology] procedures should be restricted to legally married couples, having taken into account the majority of public views that welfare of children could be best protected when they are brought up by married couples.”Footnote ⁷⁸ More recent media reports suggest that these traditional views persist:

One particular attitude seems to be that reform of the law on surrogacy would weaken the institution of marriage.Footnote ⁸⁰ However, converse attitudes are slowly beginning to be expressed:

Perhaps the most convincing evidence of a shift in attitude is demonstrated by the number of Hong Kong couples who actively pursue surrogacy as a means of achieving parenthood:

Overseas clinics report Hong Kong people seeking surrogacy arrangements in jurisdictions as diverse as the United States, Thailand, and Taiwan where laws are not so restrictive.Footnote ⁸³ Therefore, it would seem that there is a growing divergence of attitudes to surrogacy amongst Hong Kong residents.

2. Values from international legal sources

We now consider Blom’s subsequent category of values in the articulation of public policy, i.e. the values manifested in human rights norms. Hong Kong is a signatory to the United Nations Convention on the Rights of the Child (UNCRC). Under the UNCRC, one of the key principles regarding the upbringing of children is the “best interests” principle.Footnote ⁸⁴ Research shows that it is generally in the best interests of the child to have an ongoing relationship with both parents, even after parental separation.Footnote ⁸⁵ This is therefore independent of the marital status of the parents and dependent instead on the quality of interaction between child and parent and between parents. By extension, being a “suitable” parent cannot be determined by marital status alone. Thus, granting parental status to commissioning parties to a surrogacy arrangement should be guided by the best interests of the child, rather than the relatively superficial categorization of suitability by reference to marital status. By failing to put the child’s best interests as the primary consideration in any parental order application, the legislation is arguably in breach of the UNCRC.

A further challenge to the legitimacy of Hong Kong’s stance on surrogacy lies in the practical consequences following the restrictions on parental orders following surrogacy. For example, the child’s relationship with one or both commissioning parents may not be recognized in Hong Kong; the child will not be entitled to share right of abode with her parents; and if the child has a passport from the country of birth, the child will be forced to re-enter Hong Kong every few months on a tourist visa. The alternative is not to travel out of Hong Kong, which may result in illegal overstaying, and more significantly, not to be registered for public health and education services. Arguably, the legal framework which produces this situation is in breach of several UNCRC provisions, namely, articles 7 (registration, name, nationality, care), 8 (preservation of identity), and 9 (separation from parents).Footnote ⁸⁶

In addition to the values manifested in the UNCRC, Hong Kong is also committed to upholding the value of non-discrimination. Article 1 of BORO provides that men and women should have “equal right to enjoyment of all civil political rights set forth in this Bill of Rights” and that the rights recognized therein “shall be enjoyed without distinction of any kind, such as race, colour ... and other status”. The right to found a family is protected under Article 19 of BORO and therefore must be enjoyed free from discrimination. As such, the restriction of lawful surrogacy arrangements to married couples may be in breach of Article 1. Unfortunately, the legislation has not yet been challenged in court.

3. The “current” public policy on parenthood via surrogacy in Hong Kong

Taking into account both the interests of the domestic jurisdiction and the values from human rights norms, a true representation of Hong Kong’s current public policy on parenthood via surrogacy should reflect the transitioning nature of public values and the government’s obligation to honour its commitments under the UNCRC and the BORO. The public policy as claimed by the government and as applied by the Immigration Department in Re D is therefore not a legitimate invocation of public policy. Consequently, it is doubtful whether the government can properly avail itself of the public policy exception with regard to recognition of parenthood acquired by means of foreign declaration following a surrogacy arrangement.