In a landmark decision on Tuesday, the Hong Kong Court of First Instance declared that the exclusion of reciprocal in-vitro fertilization (RIVF) genetic mothers from legal parentage is unconstitutional. This ruling challenges the current provisions under the Births and Deaths Registration Ordinance and the Parent and Child Ordinance, which fail to recognize the genetic mother in female same-sex relationships as a legal parent.

The case was brought forth by a child born to a same-sex couple who underwent RIVF in South Africa. Despite the genetic ties, Hong Kong’s Birth Registry refused to recognize the genetic mother on the child’s birth certificate. Judge Coleman ruled that this denial infringes upon several rights protected under the Hong Kong Bill of Rights Ordinance, including the right to family life and equality.

The government had argued that the court’s inherent jurisdiction could bestow legal parental status, suggesting this approach provides flexibility and protects the child’s best interests in varying familial stability. However, Judge Coleman dismissed this argument, questioning the lack of similar flexibility for heterosexual couples and emphasizing that a rigid legal framework undermines the fundamental rights of both the child and the parents involved.

Furthermore, the government's concern that "dual motherhood" may not be widely accepted was also rejected by Judge Coleman. He argued that acknowledging both mothers would benefit the child by sharing parental duties and responsibilities. The judge poignantly referenced the story of King Canute and the Waves to highlight the inevitability of societal changes and the necessity for the law to adapt accordingly.

This ruling occurs amidst a growing clash between the judiciary and the legislature over same-sex rights in Hong Kong. Despite a directive from the city’s top court two years ago, which mandated the government to formulate a framework recognizing same-sex relationships, recent legislative actions have resisted such changes.

As Hong Kong grapples with these evolving legal and social landscapes, the implications of this decision could pave the way for more inclusive recognition of diverse family structures, ensuring that all parents, regardless of their gender or the nature of their relationship, are afforded equal rights. The full implications of this decision will become clearer once Judge Coleman announces the relief measures, following further submissions from counsel.