Nigel Kat SC, instructed by Patricia Ho and Associates and leading Shaphan Marwah, represented the Applicant birth mother (NF/B) as next friend of her child (K) applying for a declaration under section 6 of the Parent and Child Ordinance Cap 429 (PCO) that the Respondent (R) who had provided the egg in the reciprocal in vitro fertilisation (RIVF) treatment that led to K’s birth was the parent of K in law.
The Court declared R to be the child’s “parent at common law” but held her not to be his legal parent as provided for by the PCO.
Background and the present statutory position
B and R are a female same-sex couple who married each other in South Africa. In late 2020, B and R underwent a RIVF procedure where an egg was extracted from R and fertilised with sperm from an anonymous male donor. The embryo was implanted in B’s uterus and carried to term.
Under section 9 in Part 5 PCO, only the gestational mother “and no other woman” is to be regarded as the mother of a child – see also s.11 PCO. B thus became K’s sole legal parent. On behalf of K, B sought recognition of R’s status as a “parent” by way of a declaration of parentage under section 6 PCO.
Statutory interpretation
As ‘parent’ is not expressly defined in s.6 or elsewhere in the PCO, or in the Interpretation and General Clauses Ordinance, Cap. 1, questions of statutory interpretation arose.
The Judge declined to apply constitutional principles in the interpretative exercise, despite reminding herself of the need to do so (§33), as the matter had been brought before the Court in proceedings for a declaration instead of by way of judicial review, and as no evidence of justification had been called by the Government Interested Party, which had opposed the application (§§22-27).
Preferring to proceed along conventional lines of interpretation, and leaving same-sex parenting to the legislature (§145), the Court applied general principles of interpretation: (i) the overall intention of the statute and its embodiment of the welfare principle; (ii) section 19 of Cap 1: §29, (iii) the interpretation given to statutory provisions must be one the words are capable of bearing: §30-31, (iv) a statute is regarded as capable of adapting to changing circumstances: §32, §62, §130, (v) Chinese versions of statute being equally authentic under section 10B of Cap. 1: §103.
Application
The Court considered these principles and, although acknowledging that the result produced was ‘absurd’ and discriminatory (§§120-125), nonetheless held that it was not possible to declare R to be a “parent” within the meaning of s.6 and Part V PCO. statute. The solution reached was to declare R to be K’s “parent at common law”.
The Judge’s reasoning was that Part V is technology neutral so that RIVF is included in its scope and does not only apply to infertile heterosexual couples or partners: §91-100. Part V therefore applies to B and R. Secondly, section 9 PCO is unambiguous in its declaration that the gestational mother is to be the sole and only mother, reflecting a legislative policy to prioritize gestational links over genetic links: §106-113.
The Judge found support in a language-based analysis of the PCO’s Chinese term for parent, the Judge found a sex-based restriction in its interpretation: as the Chinese term in the PCO for “parent” is “父母”, the two characters whose literal meaning is “father mother” leave no room for a “parent” who is neither a father or mother: as there defined :§101-103.
The Court recognised that this construction produced a result contrary to the broad legislative intent behind the PCO to provide equality at law for children, protecting them from discrimination in the spirit of BOR 20 and 22 (§120) and that the operation of these PCO provisions is discriminatory against K by depriving him of a legal co-parent, and indeed absurd when compared to the ease of a father acquiring parental status under section 10(2) PCO even if there is no genetic link between him and the child: §122-125. The Court also found that R falls into 2 of the 3 categories of “natural parents” described by Baroness Hale in Re G [2006] 1 WLR 2305: genetic parenthood and social/psychological parenthood.
Despite this frank contradiction in legislative intent (and the finding of discrimination), the Court declined to interpret s.6 and Part V as sought or to so declare or otherwise remedy the position.
R as “parent at common law”
Instead, holding that the meaning of “parent” is not fossilised in time, the Court declared R to be a “parent at common law” as explained in Re G, being “the best I can do”.
This rather strange decision is a partial victory for K, B and R. However, until another Court grasps the constitutional nettle of justification for the discrimination produced by these provisions under which R cannot be a “mother” under section 9 and is prevented by her sex from being a father, K and R remain disabled from enforcing the important rights and obligations conferred on children and their parents by many other statutes (§142).