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.
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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.”
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