Right to Marriage

The Freedom of Marriage and the Right to Raise a Family

Keith Hotten

One is almost tempted to hint that it does not matter much whom you marry; that, in fact, marriage is a subjective affection, and, if you have made up your mind to it, once talked yourself fairly over, you could “pull it through” with anybody. But even if we take matrimony at its lowest, even if we regard it as no more than a sort of friendship recognized by the police, there must be degrees in the freedom and sympathy realized, and some principle to guide simple folk in their selection.
 
R.L. Stevenson Virginibus Puerisque and other Papers 1876-79
 

* This is a chapter I wrote for ‘The Law of the Hong Kong Constitution‘ (2nd Edition), Edited by Johannes Chan SC, & C.L. Lim, Sweet & Maxwell 2015.

 

  1. Introduction

The Marriage Ordinance (Cap.181) governs the formation of a legal union to found a family in Hong Kong. Mutatis mutandis, matrimonial law in Hong Kong has been culled from English common law and statute and for the most part, the matrimonial law of England has been the law of the church.[1] Historically, Parliament and the common law courts had sought to regulate some aspects of the law of marriage, particularly when canon law came into conflict with increasingly secular goals within society and consequently, the move towards the regulation of marriage by the State. Up until the 1850s however, jurisdiction over most disputes about marriage and the definition of marriage itself were left to the church. Ultimately, the Matrimonial Causes Act 1857 opened the way for the displacement of the church and the statutory regulation of divorce.[2] This was despite the fact that the Church of England was, with some parliamentary encouragement,[3] required to marry for the first time anyone who lived in the parish regardless of faith or the lack of it. The ecclesiastical courts from whom English marriage law was derived, did not want parties to an apparently valid marriage claiming that it was void because of some private reluctance to accept all of the obligations it entailed. As Lord Hailsham observed, “… in the English law of marriage there is no room for mental reservations or private arrangements regarding the parties’ personal relationships once it is established that the parties are free to marry one another, have consented to the achievement of the married state and observed the necessary formalities”.[4]

In Hong Kong, the statutory form of marriage is specified as “Christian”. Thus, the long title to the Marriage Ordinance states that the Ordinance is: “To provide for the celebration of Christian marriages or the civil equivalent thereof and for matters connected therewith”. There is no formal definition or interpretation of “marriage” (“Christian” or otherwise) in the Ordinance. However, s.40(1) makes clear that “Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage”. Further, by s.40(2) that: “The expression ‘Christian marriage or the civil equivalent of a Christian marriage’ implies a formal ceremony recognized by law as involving the voluntary union for life of one man and one woman to the exclusion of all others”. By these terms, same-sex couples are statutorily excluded from the legal institution of marriage.[5]

  1. Article 37

Article 37 of the Basic Law would certainly adopt these statutory definitions of “marriage” as a starting point, but may accept a wider definition for marriages contracted outside the jurisdiction of China and Hong Kong.[6] Article 37 is consistent with art.16 of the Universal Declaration of Human Rights that “1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. This in turn is also consistent with art.19 of the Hong Kong Bill of Rights. Art 19(2) provides: ‘The right of men and women of marriageable age to marry and to found a family shall be recognized.’

As with “marriage”, any description of “family” varies from country to country and clearly may or may not be dependent on a “marriage” however defined. It is thus hard to adopt a standard definition. However, where a social group is recognised as a “family” under the legislation and practice of any particular State, that family group is entitled to receive the protection referred to in art.23 of the International Covenant on Civil and Political Rights (ICCPR). Article 23(2) of the Covenant reaffirms the right of men and women of marriageable age to marry and to found a family. Article 37 of the Hong Kong Basic Law adopts this. The UN Human Rights Committee (HRC), monitors implementation of the Covenant by its State parties. In its 1990 Report[7] on art.23 and the protection of the family, the right to marriage and equality of the spouses, whilst the institution of marriage is accepted as the recognised foundation of a family, other concepts of “nuclear” and “extended” family are also recognised, including cohabitees and their children and single parents and their children. The family is said to be the “natural” and “fundamental” group unit of society and as such is entitled under the ICCPR, to protection by society and the State. Article 17 establishes a prohibition on arbitrary or unlawful interference with the family and by art.24 protection is extended to the rights of the child. Thus, where “a group of persons” is recognised as a “family” under the legislation and practice of a State, it must be given the protection referred to in art.23.[8]

In Europe, for example, the European Court of Human Rights has thus far refused to apply the protections of art.16(1) of the Universal Declaration of Human Rights 1948, inter alia, to same-sex marriage, on grounds that a wide “margin of appreciation” must be granted to State governments in the area of social policy. This aside, any government’s arbitrary and unjust interference with the right to marry, more generally, would certainly be a breach of art.16(1) and art.23(2) of the ICCPR. Regionally this would, for example, also be a breach of art.37 of the Basic Law in Hong Kong and in Europe art.12 of the European Convention on Human Rights (ECHR).[9] Article 16(1) was specifically aimed at arbitrary prohibitions on mixed marriages, between people of different races or religions or nationalities, such as had existed during the Nazi regime in Germany and continued to exist in some States of the United States until the decision of the Supreme Court in Loving v Virginia. As Warren CJ then said, “Marriage is one of the ‘basic civil rights of man’, fundamental to our very existence and survival”.[10] In South Africa, where marriage is not constitutionally protected because of fears that this might entrench a particular model of marriage within a multi-cultural society, “the provisions of the constitutional text would clearly prohibit any arbitrary state interference with the right to marry or to establish and raise a family. The text enshrines the values of human dignity, equality and freedom”[11] (Sachs J). Thus, denying to members of minority groups the right to establish formal, legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are “free and equal in dignity and rights”.[12]

(a) Modern marriage

In modern societies, where significant numbers in the population believe that there is little social difference between marrying and living together, it seems marriage still has deep significance for many people, quite apart from the legal recognition, status, rights and obligations which it brings. Thus, it has been said that: “Marriage law … goes well beyond its earlier purpose in the common law of legitimising sexual relations and securing succession of legitimate heirs to family property. And it is much more than a piece of paper”.[13] Further, as Baroness Hale observed, marriage “brings legal, social and psychological benefits to the couple when they marry, while they are married and when it ends”.[14] Thus, the right to marry under art.37 of the Basic Law, like art.12 of the ECHR, cannot be read as a “qualified right” as, for example, might be specified in art.8 of the ECHR.[15] There is nothing in art.37 to suggest that there is any qualification on the basic right to marry. State laws governing the exercise of this right are principally those governing its formalities. The purpose of marriage law is to ensure that marriages are solemnised between couples who have freely agreed to marry and that the status of those who marry is established with certainty leaving no doubts in the minds of the parties or in the community, about who is married and who is not. Baroness Hale continues, that art.12 (which is in similar terms to art.37 of the Basic Law), for example, must envisage national laws governing the capacity to marry, however, these must obviously be non-discriminatory and consistent with the fundamental principles of dignity, equality and freedom which underlie the ECHR as a whole.

(b) Right to marry

It is trite law to suggest that art.37 exists to “protect” Hong Kong residents’ freedom from State interference, with either their right to marry (if of lawful age[16] or otherwise not unlawful by reason of “kindred and affinity”[17]) or to raise a family. Historically, the courts of Hong Kong have not been troubled by such claims from adult men and women[18] seeking to found a lawful union. Certainly, it is not apparent from a survey of the authorities, that the freedom or “right” to marry has been subject to interference by government, although the future is contingent on the question of “civil partnerships” and the freedom to found same-sex “marriages” in Hong Kong. Where art.37 has been considered by the courts in Hong Kong, it is the concomitant “rights and freedoms” that are said to follow from the “freedom of marriage” (and therefore to found a family), rather than the “right”, in and of itself, to form a lawful union, that has been subject to judicial scrutiny.

In the context of Hong Kong’s immigration laws, for example, it has been argued from time to time that the freedom of marriage of Hong Kong residents and their right to raise a family freely, shall mean that any spouse of a Hong Kong resident should be permitted to come to live in Hong Kong with that spouse. The courts have taken the view, however, that art.37 does not stand on its own. In this context, whilst the “freedom of marriage” and the “right to raise a family freely” is protected by law in Hong Kong, it is also subject to wider political factors that may not prohibit some proscription of those rights under art.39. The point is made in the case of Secretary for Justice v Oriental Press Group Ltd in relation to art.27 of the Basic Law that it “merely identifies a particular group of fundamental rights and freedoms which the Basic Law guarantees.[19] It does not purport to prevent the enactment of restrictions on those rights. The effect of art.39 is to permit restrictions on the rights protected in Chapter III, provided that those restrictions are provided by law and are compatible with various international instruments, including the International Covenant on Civil and Political Rights”.

It is further argued in Santosh Thewe v Director of Immigration, for example, that art.39 provides, in part, that the provisions of the ICCPR “as applied to Hong Kong” shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.[20] The words as applied to Hong Kong are, it is argued, central to a correct application of so-called Chapter III “rights” generally and art.37 in particular. The court in Santosh Thewe v Director of Immigration[21] pointed out that, (prior to 1997), the United Kingdom entered a reservation in respect of Hong Kong in the following terms: “The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, the acceptance of art.12(4) and of other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories”. Further, the Government of the United Kingdom also made a reservation for Hong Kong: “The Government of the United Kingdom reserves the right not to apply art.13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority”. The court was at pains to draw the distinction that the second paragraph of art.39 goes on with a provision that: “The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article”.[22] Thus, where there is a restriction which has been prescribed by law in Hong Kong which is applicable to an issue raised before the court, then the court may take the view that those “rights and freedoms” may be so restricted.[23]

As regards the art.37 right to freedom of marriage in respect of an “alien” otherwise prohibited under immigration law from remaining (but not from marrying) in Hong Kong, the court took the view that law was to be found in s.11 of the Hong Kong Bill of Rights Ordinance (Cap.383). This states: “As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation”. As the applicant husband in Santosh Thewe v Director of Immigration was a person who had no right to enter and remain in Hong Kong, save by permission at the discretion of the Director of Immigration, s.11 of the Hong Kong Bill of Rights Ordinance applied. As Stock J (as he then was) succinctly observed: “That, it seems to me, is a plain and obvious answer to the art.37 point”.[24]

Moreover, when looking at such Chapter III “rights and freedoms” it must be recognised that the courts look to “objective justifications” for government policies that may, for example, in certain circumstances, result in restrictions prescribed by law. Again, as Stock J stated, “… there is a cardinal distinction between discrimination on the one hand and, on the other, distinctions which have objective justification. Immigration regimes worldwide, and for reasons too obvious to have to mention, are wary about letting in as residents those who might become a burden on state resources, or those who might unfairly take up jobs at the expense of the permanent residents of the host country. There is clear objective justification for such a policy and it does not, in my judgment, begin to constitute unequal treatment of the kind to which art.25 [of the Basic Law] refers”.[25]

(c) Restrictions under Article 37

The House of Lords in R (Baiai) v Secretary of State for the Home Department, outlined a number of European authorities[26] which have looked at these “objective justifications” for government policies that, in certain circumstances, may allow certain restrictions. In
Hong Kong, these would have a similar effect to the art.39 restrictions (where “prescribed by law”), on the rights protected in Chapter III, such as art.37, provided that those restrictions are provided by law and are compatible with various international instruments, including the ICCPR. Thus, it is argued that the right to marry protected by art.37 (art.12 of the ECHR) cannot be an absolute right if by “absolute” it is meant that anyone within the jurisdiction is free to marry any other person irrespective of age, gender, consanguinity, affinity or any existing marriage,. It is nevertheless a “strong right” that is plainly supported by art.16 of the Universal Declaration of Human Rights 1948 and art.23(2) of the ICCPR. Although Article 37 contains no second paragraph permitting interferences with or limitations of the right to marry and found a family, which are prescribed by law and necessary in a democratic society for one or other of a number of specified purposes, the Court of Final Appeal has suggested that similar considerations to that under art.19(2) of the Bill of Rights would apply as it could not be the case that a fundamental right protected by the Basic Law should be at the whim of the legislature.[27] As Ma CJ and Ribeiro PJ stated, “any legal rules must be consistent with the constitutional right to marry and must not operate so as to impair the very essence of that right”, and must be compatible with both art.37 and art. 19(2), between which formulation there is no significant difference.[28]

Thus, Lord Bingham of Cornhill in R (Baiai) v Secretary of State for the Home Department, argued that a survey of European case law reveals a restrictive approach towards national laws in this area and the limited number of decisions in Hong Kong have adopted a similar approach. It is accepted, for example, “that national laws may lay down rules of substance based on generally recognised considerations of public interest, of which rules concerning capacity, consent, prohibited degrees of consanguinity and the prevention of bigamy are examples: Hamer v United Kingdom (1979) 24 DR 5, [62]; Draper v United Kingdom (1980) 24 DR 72, [49]; F v Switzerland (1987) 10 EHRR 411, [32]; Sanders v France (1996) 87-B DR 160, 163; Klip and Krüger v The Netherlands (1997) 91-A DR 66, 71”.[29]

However, the right to marry is generally regarded as “fundamental” and the scope of prescriptions afforded to national law is not unlimited. National laws governing the exercise of the right to marry “must never injure or impair the substance of the right and must not deprive a person or category of person of full legal capacity of the right to marry or substantially interfere with their exercise of the right: Hamer, paras.60, 62; Draper, paras.47–49; F v Switzerland, para 32; Sanders v France, 162–163; Klip and Krüger, 71; R and F v United Kingdom (Application No 35748/05) (unrep.,), given 28 November 2006, p.14”.[30]

The European courts have been firm in upholding the right to marry, finding in favour of applicants denied the exercise of that right because they were serving prisoners (Hamer v United Kingdom; and Draper v United Kingdom) or because of a mandatory delay imposed before entering into a fourth marriage (F v Switzerland), or because one applicant was the father-in-law of the other and they could only exercise their right if they obtained a private Act of Parliament: B v United Kingdom (2005) 42 EHRR 195.[31] Other reported cases (on art.12) refer to the right to “found a family”. Various examples, on diverse facts include, “prisoners complaining of the denial of conjugal visits to them in prison, X v United Kingdom (1975) 2 DR 105; ELH and PBH v United Kingdom (1997) 91-A DR 61; denial to a husband and wife of the opportunity to enjoy sexual relations while they were both in prison, X and Y v Switzerland (1978) 13 DR 241; denial to a husband of authority to oppose an abortion undergone by his wife, Boso v Italy Reports of Judgments and Decisions 2002-VII, p.451; denial of artificial insemination facilities to a serving prisoner: Dickson v United Kingdom (2006) 44 EHRR 419; R (Mellor) v Secretary of State for the Home Department [2002] QB 13”.[32]

The argument here is again similar to that adopted by the Hong Kong courts and supported by art.39 of the Basic Law, which allows restrictions on rights and freedoms enjoyed by
Hong Kong residents “unless as prescribed by law”. An argument, which follows Stock J’s approach in Santosh Thewe v Director of Immigration, which he found to be a “plain and obvious answer to the art.37 point”. The right to found a family has been described as “absolute”, X v United Kingdom, 106, and the examples above clearly demonstrate that the courts have interpreted that right widely, for example, in considering denial of prisoners conjugal rights. However, such a right is not wholly without restriction and the fact remains that where a restriction this may be “justified” under art.39 (or art.8(2) of the ECHR), for example, the rights of an “alien” otherwise prohibited under immigration law, it may be refused under art.37 (or art.12 of the ECHR). See X and Y v Switzerland, 244; ELH and PBH v United Kingdom, 64; Boso v Italy Reports of Judgments and Decisions, 460; Dickson v United Kingdom, [41]; R (Mellor) v Secretary of State for the Home Department, [29], [39].

The House of Lords in R (Baiai) v Secretary of State for the Home Department did not accept that the right to marry and found a family under art.12 ECHR could automatically, be qualified on grounds such as those under art.8 (art.39). It held, first, that art.12 “confers a right, not a right to respect for specified areas of personal life”. Second, as already noted, art.12 contains no equivalent to art.8(2). Third, almost all of the European Court’s decisions referred to above, save R (Mellor) v Secretary of State for the Home Department, “also reviewed and rejected claims under art.8, with which the right to found a family is very closely linked, if indeed there is not some overlap. Fourth, all the applicants and the appellant in R (Mellor) v Secretary of State for the Home Department failed. The Strasbourg authorities have not in practice upheld the right to found a family with the same firmness they have shown in upholding the right to marry”.[33] Lord Bingham went on to say that the European Court has consistently taken the view that “the right to marry is to be treated as a strong right which may be regulated by national law both as to procedure and substance but may not be subjected to conditions which impair the essence of the right”.[34] While the same approach has been adopted by the Court of Final Appeal in W v Registrar of Marriage, the Court has subjected the common law definition of a man and a woman to vigorous scrutiny and held that the common law definition was unconstitutional as it impaired the very essence of the right to marry.[35] Accordingly, a transsexual was held to be able to marry under the Marriage Ordinance in Hong Kong.

Other examples of restrictions on the right to marry, cited by the House of Lords in R (Baiai) v Secretary of State for the Home Department include, the case of a disabled UK citizen living on benefits who challenged the denial of entry clearance to his Filipino fiancée whom he had never met but wished to marry here. The ground of refusal was that she would be a charge on public funds. The commission observed that the right to marry did not in principle include the right to choose the geographical location of the marriage and held the refusal of entry to be justified. It held the case did not involve a genuine marriage between two persons already in the jurisdiction. See Application No 9773/82 v United Kingdom (1982) 5 EHRR 296.[36]

In Application No 10914/84 v Netherlands (1985) 8 EHRR 308, the first applicant (a Moroccan) had come to The Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. When that permit expired, he sought a new permit that was refused because his relationship had come to an end and he was unemployed. He challenged this refusal on the ground of a relationship with the second applicant, another Dutch woman, but this was refused because she was living on a state benefit and could not support him. The applicants took steps towards getting married, and the first applicant tried unsuccessfully to obtain an order prohibiting his expulsion. It was held that the Dutch authorities were not obliged to allow the first applicant to stay in the Netherlands in order to marry. In the event, the parties went to Morocco and married. The first applicant then obtained a residence permit to stay with his wife in The Netherlands. The applicants’ complaint under art.12 was held to be manifestly ill-founded, and the commission noted that art.12 did not guarantee the right to marry in a particular country or under a particular legal system. This case is authority for the proposition that the prospect of marriage need not disrupt the ordinary course of immigration control, but it does not appear from the report that the Dutch authorities did prevent the applicants from marrying.[37]

In Sanders v France (1996) 87 B-DR 160, the applicants, a Turkish man aged 50 and a French woman aged 24, living together in Istanbul, complained of difficulties they encountered at the French consulate general in Istanbul in obtaining a certificate of capacity to marry. To preclude marriages of convenience, French law provided for the issue of a certificate, to be granted on application to State Counsel (in Nantes, in the case of French citizens residing abroad). State Counsel could oppose or postpone a marriage. In the applicants’ case the marriage was postponed, but this order was then lifted. There was delay in the applicants’ receipt of the certificate, partly because the second applicant declined to collect it, but in the meantime they were married in Istanbul. The applicants’ complaint under art.12 was held to be manifestly ill-founded. The issue was held to concern substantive rules, the purpose of which was to preclude marriages of convenience between French citizens and aliens, a limitation which was not contrary to art.12. The delay, although regrettable, did not impair the very essence of the right to marry. The House of Lords held this decision as being clear authority for the proposition that a national law may properly authorise a national authority to delay a proposed marriage between a citizen and a third-country national for a reasonable period to establish whether the marriage is one of convenience.[38]

In Klip and Krüger v Netherlands (1997) 91 A-DR 66 the applicants were a Dutch man and a German woman. The formalities that gave rise to the dispute were required by a Dutch Act of 1994 intended to prevent and suppress marriages of convenience. It sought to establish a systematic examination of all marriages involving aliens, and to that end required completion of a standard questionnaire. Only where the Aliens Department had a reasonable suspicion that the intended marriage was one of convenience were certain further steps required. The public prosecutor was competent to oppose a marriage as contrary to Dutch public order where the primary object of one or both of the future spouses was to obtain entry into The Netherlands. The applicants’ complaint to the commission under art.12 was, again, rejected as manifestly ill-founded. It was accepted that the law could prevent marriages of convenience between Dutch citizens and aliens for immigration purposes. The obligation to submit a statement was not objectionable. This case is authority for the similar proposition as in Sanders v France.[39]

The House of Lords in R (Baiai) v Secretary of State for the Home Department went on to consider whether the State or any national authority “may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, to prevent it”.[40] Clearly, this is because art.12 (and art.37 of the Basic Law) exists to protect the right to enter into a genuine marriage and not a right to secure an advantage by going through a form of marriage for ulterior reasons. In so far as such restrictions on the right to marry might affect marriages which were genuine as well as “sham marriages”, their Lordships held that “a member state may take steps to prevent marriages of convenience [and] … where a third-country national proposes to marry within the jurisdiction the member state may properly check whether the proposed marriage is one of convenience or not and seek information necessary for that purpose”.[41] In R (Baiai) v Secretary of State for the Home Department the Lords were primarily considering these issues as they relate to the specific application of one aspect of UK immigration law in terms of whether or not it struck a “fair balance” in all the circumstances. However, on the general issue, their Lordships went on to say, clearly, that any restriction in this area must satisfy the requirement of “proportionality” which will always involve “consideration of whether it strikes a fair balance between the protection of individual rights and the general interests of the community … the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights is inherent in the whole of the Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, [69]”.[42]

Nevertheless, the House of Lords took the view that any restrictions imposed under any government “scheme” or regulatory framework, that covers areas of broad social policy (such as the right to marry), the judgment of the legislature and executive should be given considerable weight. For example, in the area of immigration (that was under specific consideration by the House of Lords in R (Baiai) v Secretary of State for the Home Department), many considerations will “depend on a political judgment which the court is ill-qualified to assess: such as, for instance, the prevalence of marriages of convenience in [the UK], the incidence of such marriages in Anglican churches following ecclesiastical preliminaries, the desirability of taking action and the relative merits of seeking to prevent such marriages and seeking to deprive the parties to such marriages after the event, of any immigration advantage they might have obtained”.[43] However, the House of Lords was again very clear that even here, “the court cannot abdicate its function of deciding whether as a matter of law [the restriction], as promulgated and operated, violated [a] respondents’ right to marry guaranteed by art.12 [or art.37]. The answer to that question does not turn on considerations of broad social policy but on an accurate analysis of [any particular] scheme and the law” (Emphasis added).[44]

(d) Right to family life

A further area that has been raised as a possible future cause of friction under art.37 concerns reproduction rights and family planning in Hong Kong, given the “one couple one child” “policy” of the People’s Republic of China, notwithstanding that this policy is not promulgated in any national law.[45]

Peterson argues that although restrictions on family size would be unlikely to arise under specific legislation in Hong Kong, it could, as in China itself, be applied through pressure from government policies and propaganda campaigns. Pressure designed to “persuade” couples to limit the number of children with incentives encouraging “voluntary targets” accompanied by discriminatory practices against those couples who choose to defy it. Peterson suggests that examples might include “women who use … public hospitals might also find themselves pressured by government-employed doctors to be sterilized after giving birth or to terminate ‘extra’ pregnancies”.[46]

At the time of writing, it is fair to say that Peterson was speculating on possible developments in this area following the handover of power to China after 1997. Since the Handover, there is no evidence to suggest that the Hong Kong Government has considered the question of placing restrictions on residents’ reproductive freedoms. Indeed, as Hong Kong has consistently had one of the lowest fertility rates in the world, government has looked to fiscal and other measures to encourage larger families rather than place restrictions upon them.[47] However, that is a different question to whether or not residents would be legally protected if the government sought to do so in future. Neither the Sino-British Joint Declaration[48] nor the Basic Law adequately addresses the issue of restrictions on family size. The Sino-British Joint Declaration simply states that “the Hong Kong Special Administrative Region Government shall … maintain the freedom to marry and the right to raise a family freely”.[49] In similar terms, art.37 provides that the “right to raise a family freely shall be protected by law”. As Peterson rightly argues, such terms would not exclude the possibility of Government restrictions upon family size in future, much less attempts to “persuade” Hong Kong people to limit family size.[50] That said, under art.23 of the ICCPR, “the right to found a family implies, in principle, the possibility to procreate and live together. When States parties adopt family planning policies, they should be compatible with the provisions of the Covenant and should, in particular, not be discriminatory or compulsory”.[51]

A further example of a State’s inherent obligation to ensure a “right” to family life may be found in the case of Bajrami v Albania.[52] This concerns a State’s obligations to secure a parent’s right to contact with their children. The European Court of Human Rights so held that it was incumbent upon a member state to take all necessary measures of their choosing to secure the individual’s rights guaranteed by art.8 of the ECHR and in particular to secure the reunion of parents with their children in accordance with a final judgment of a domestic court. There were also positive obligations inherent in effective “respect” for family life. In both contexts, regard must be paid to the fair balance required to be struck between the competing interests of the individual and the wider community, and in both contexts the state enjoyed a certain margin of appreciation, see for example, Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 125.

Surrogacy and Assisted Reproduction

The law governing this area is set out in ss 14 to 18 of the Human Reproductive Technology Ordinance (Cap 561) (HRTO) and the Parent and Child Ordinance (Cap 429) (PCO). Commercial surrogacy is a criminal offence under the HRTO. The law is phrased in a manner that no one can pay a surrogate, no surrogate can receive money, and no one can arrange a commercial surrogacy (the same applies to the supply of gametes), no matter within or outside Hong Kong. Set against the right to family life as enshrined in our constitutional framework this has raised some obvious tensions and has contributed to the development of what is sometimes referred to as ‘reproductive rights’. In particular, faced with questions of infertility, particularly within marriage, there has been a growth in human assisted reproduction, and the concomitant medical technologies associated with artificial insemination, in vitro fertilisation (IVF) and surrogacy.[53] Collectively, these new ‘human assisted reproductive services’ are increasingly presenting challenges to Hong Kong’s once settled legal definitions of motherhood, fatherhood and parenthood, which was the driving force behind the introduction of the HRTO in 2000.

The meaning of mother and father, where a birth results from medical treatment[54] are set out in section 9 and 10 of the PCO. A mother is, by s. 9(1), the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, (whether in Hong Kong or elsewhere at the time) and no other woman, is to be regarded as the mother of the child. Regarding adoption, by s. 9(2) subsection (1) does not apply to any child to the extent that the child is regarded by virtue of adoption as not being the child of any person other than the adopter or adopters.

The meaning of ‘father’ is a little more complex. By s.10(1)  in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination, (whether in Hong Kong or elsewhere at the time), if (a) at the time of the placing in her of the embryo or the sperm and eggs or her insemination, the woman was a party to a marriage; and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to subsection (5), the other party to the marriage shall be regarded as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination. In short, any husband[55] of a woman who undergoes IVF or artificial insemination is regarded in law as the father of the child unless it is shown that he did not consent[56] to the placing of the embryo, sperm and/or eggs inside her. In cases of unmarried partners who together obtain treatment services,[57] the male partner of the woman is regarded as the father of the child and by s.10(3), PCO, there is no requirement of cohabitation. As a result, in both cases, the sperm donor is not regarded as the father.[58]

Where the insemination of the embryo, sperm and/or eggs occurs after the man’s death, he is not regarded as the father of the child for succession purposes.[59] These rules are applied strictly and therefore, where at any point before the insemination of donor sperm or embryos with donor male gametes, a husband and wife divorce, the former husband will not be regarded as the father of the child.[60]

Insemination can, of course be artificially achieved as in IVF and also most often in surrogacy cases. In such cases, the common law presumption of legitimacy arising from marriage has been preserved and any child born as a result of a woman receiving artificial insemination will be protected by the presumption of legitimacy. The same applies to a husband or father unless he can show that he did not consent to the wife receiving artificial insemination.[61] This includes children of void marriages, if one of the parties reasonably believed that the marriage was valid.[62]

In surrogacy cases it should be noted that only married couples can apply for parental orders under s 12 of the PCO.[63] Thus, where a married couple for a surrogate to gestate a child using gametes donated from one or both of the couple,[64] the child is to be regarded as the child of the surrogate, who will be regarded as the mother (and her husband if she is married).[65] However, under s 12 of the PCO, the couple may apply to the High Court or the District Court for an order that the child be regarded as their child if: (a) The gametes of the husband or the wife, or both, were used to bring about the creation of the embryo (s 12(1)(b)); (b) The application is made within 6 months of the birth of the child (s 12(2));[66] (c) The child’s home is with the husband or wife at the time of the application (s 12(3)(a)); (d) The husband or wife has a substantial connection with, is domiciled in, or has been habitually resident for 1 year in Hong Kong prior to the application (s 12(3)(b));[67] (e) Both husband and wife are older than 18 years of age by the time of the order (s 12(4)); (f) The surrogate (and whoever is in law regarded as the father) have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order (s 12(5));[68] and (g) No money or other benefit has been given or received by the couple without the authorisation of the court (s 12(5)).[69]

By way of example, in Re Q (Parental Order),[70] an unmarried woman acted as a surrogate for a married couple, and carried and gave birth to a child created from the egg of the wife fertilised by sperm donated by a man who was not the husband. When the couple applied for a parental order, the question of consent arose as the surrogate was a married woman. The only provision found to be relevant was that of a woman obtaining treatment services together with her male partner. As the husband could not be said to be the male partner who together with the woman obtained the treatment services, there was then no man who was to be regarded as the father and whose consent was necessary. Thus the relationship between the child and the husband and the wife may must regularised by a parental order.

(e) Civil partnerships

The “freedom of marriage” of Hong Kong residents and their “right to raise a family” has not, thus far, raised any fundamental human rights concerns for men and women seeking to found a family in Hong Kong. However, the Government’s opposition to equal rights and protection for same sex-couples in Hong Kong has come under increasing scrutiny, particularly following radical reform of the law in this area in other common law jurisdictions.[71] Presently “Civil Partnerships” are not recognised in Hong Kong despite the fact that it is accepted that homosexuality is a “status”, inter alia, for the purpose of arts.1 and 22 of the Hong Kong Bill of Rights. For example, when the Civil Partnership Act 2004 came into force in the United Kingdom on 5 December 2005, same-sex couples were able to register their partnership in a civil ceremony that conferred the same rights (under British law) that applied to married couples. British law allows for any married couple, where at least one partner is a British national, to register their partnership overseas. The Government of Hong Kong objected to the British Consulate-General Hong Kong registering civil partnerships of eligible same-sex couples under this legislation, arguing that it did not consider it appropriate to agree to the registration of civil partnerships of same-sex couples at the British Consulate-General
Hong Kong at present.[72]

However, following the Court of Final Appeal decision in W v The Registrar of Marriages[73] the Hong Kong government now finds itself in the curious position of continuing to deny recognition of ‘civil partnerships’ to same-sex couples whilst being forced to recognize, as a ‘female’ a post-operative ‘male’ who is now permitted to marry a man and to found a family. The CFA held that:

‘… a Declaration be granted that, consistently with Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights, section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery; [and]

‘That a Declaration be granted that the appellant is in law entitled to be included as “a woman” within the meaning of section 20(1)(d) of the Matrimonial Causes Ordinance and section 40 of the Marriage Ordinance and is accordingly eligible to marry a man.’

The Hong Kong Government is establishing something of a track record in relation to equal rights for same-sex couples in particular and trying to hold back the tide in relation to wider gender issues For example, in 2008, major reforms of the Domestic Violence Ordinance (Cap.189)[74] initially, pointedly excluded same-sex couples from the protection of injunctive relief against violent partners under the Ordinance. This was in the context of reforms that otherwise specifically extended protection to include parties who were formerly married or cohabiting and also family relationships other than spouses or cohabitants, including the parent-child relationship, in-law relations, the grandparent-grandchild relationship and a variety of extended family relations. In adopting the reforms, the Government said: “Our law, which reflects the Government’s policy position, does not recognise same-sex marriage, civil partnership, or any same-sex relationship. Recognising same-sex relationship is an issue concerning ethics and morality of the society. Any change to this policy stance would have substantial implications on the society and should not be introduced unless consensus or a majority view is reached by the society”.[75] However, having introduced these major reforms to the Domestic Violence Ordinance in August 2008, only 10 months later, on 17 June 2009, the Hong Kong Government tabled the Domestic Violence (Amendment) Bill 2009 to extend the scope of the domestic violence ordinance to same-sex cohabitants, providing them with additional civil remedies alongside the existing criminal legislative framework. The Domestic and Cohabitation Relationships Violence Ordinance (Cap.189) came into force on 1 January 2010. Amendments include a new definition of “cohabitation relationship” as s.2 “(a) a relationship between 2 persons (whether of the same sex or of the opposite sex) who live together as a couple in an intimate relationship; and (b) includes such a relationship that has come to an end”. However, once again, the Government felt obliged to emphasise that “in bringing in these changes … the proposed amendments would not affect its stance of not recognising same-sex marriage, civil partnership or any same-sex relationship as a matter of legal status”.[76]

As Scully-Hill[77] has noted, following the positive judicial response in Leung v Secretary for Justice to the challenge to discrimination on the grounds of sexual orientation in the criminal law, it seems only a matter of time before same-sex relationships are recognised in Hong Kong law.[78][79] Indeed, per Li CJ, Secretary for Justice v Yau Yuk Lung:

“Equality before the law was a fundamental human right and was in essence the right not to be discriminated against. Discrimination on the ground of sexual orientation was plainly unconstitutional under both art.25 of the Basic Law and art.22 of the Hong Kong Bill of Rights, as sexual orientation was within the phrase ‘other status’. In general, the law should accord identical treatment to comparable situations. However, the guarantee of equality before the law did not invariably require exact equality. Differences in legal treatment might be justified for good reason. To satisfy this test (the Justification Test), it must be shown that: (a).the differential treatment pursued a legitimate aim, i.e. a genuine need for such difference must be established; (b).the differential treatment must be rationally connected to the legitimate aim; and (c) the differential treatment must be no more than was necessary to accomplish the legitimate aim. In addition, requirement (a) could not be established from the mere act of legislative enactment (R v Man Wai Keung (No 2) [1992] 2 HKCLR 207, Ghaidan v Godin-Mendoza [2004] 2 AC 557, So Wai Lun v HKSAR (2006) 9 HKCFAR 530 applied).

On this basis, it seems that the provisions of the Marriage Ordinance (Cap.181) currently in force are incompatible with the equality provisions in the Basic Law and art.37. As set out previously here, by art.23(2) of the ICCPR, ‘the right of men and women of marriageable age to marry and to found a family shall be recognized by law’. This, in turn is incorporated into art.19(2) of the Bill of Rights Ordinance (Cap.383) and acquires constitutional status by virtue of art.39 of the Basic Law which states that ‘the provisions of the ICCPR … as applied to Hong Kong shall remain in force and shall be implemented through laws of the Hong Kong Special Administrative Region’.”[80]

However, as Leung[81] has pointed out, in Joslin v New Zealand (2003) 10 IHRR 40, the United Nations Human Rights Committee rejected an alleged violation of the ICCPR because of homosexuals’ incapacity to marry. It held that the use of the term “men and women”, as opposed to general terms “every human being”, “everyone” and “all persons” used elsewhere, has been consistently and uniformly understood as a treaty obligation of States parties stemming from art.23, para.2 of the Covenant, to recognise marriage as only the union of a man and a woman. The refusal to allow marriage between homosexual couples is therefore not necessarily a breach of art.23(2).

Of course, there is no bar to state parties to the ICCPR to legislate for “civil partnerships” or to recognise same-sex relationships in law. Further, however, art.37 of the Basic Law seems to have a wider ambit than art.23 and appears to apply without specific reference to gender. Article 25 of the Basic Law provides that all Hong Kong residents shall be equal before the law again following art.26 of the ICCPR that “All persons are equal before the law” giving “equal and effective protection against discrimination on any ground such as … sex … or other status”. This is incorporated into art.22 of the Hong Kong Bill of Rights and again acquires constitutional status by virtue of art.39 of the Basic Law.

Again, as Leung points out,[82] in Toonen v Australia and Young v Australia, the UNHRC said that the reference to “sex” in art.26 is to be taken as including sexual orientation.[83] That said, it may be argued, a fortiori, that “other status” must also bring sexual orientation within the ambit of the Hong Kong constitutional framework and the Basic Law. Indeed, this was the view taken in Leung v Secretary of Justice[84] that there should be equality before the law and insofar as it discriminated against homosexuals then Basic Law art.25 and the Hong Kong Bill of Rights art.22 applied[85]. Further, such rights are not to be subject to arbitrary or unlawful interference with any person’s private life: Hong Kong Bill of Rights art.14. Whether the provisions of the Marriage Ordinance would survive a similar challenge is a moot point, given the court’s view in Santosh Thewe v Director of Immigration,[86] that differential treatment may not amount to discrimination if it can be justified on reasonable and objective criteria under art.39 of the Basic Law. However, whether or not same-sex “marriage” is recognised it seems clear that equality for same-sex couples will eventually have to be provided by “civil partnership” legislation which provides similar “matrimonial” rights and benefits (including injunctive relief) to that enjoyed by heterosexual married couples. As Loper et al have suggested ‘in Hong Kong … same-sex couples’ rights often focus on the issue of same-sex marriage. However, marriage is not the only way the government could extend rights to same-sex couples. In other parts of the world, governments have conferred rights upon gay and lesbian couples without legalising same-sex marriage. Some governments have developed programs that grant same-sex couples a subset of the rights that married heterosexual couples enjoy, for example the right to hospital visitation, the right to inheritance, and the right to sue in cases of fatal accidents. Other governments have developed programs that give same-sex couples access to all the rights that married heterosexual couples have, without using the word “marriage”. These compromise legal solutions have been given a variety of different names, such as “registered domestic partnerships”, “civil unions”, and “civil partnerships.”[87] Where same-sex relationships are recognised in Hong Kong, art.37 of the Basic Law should be interpreted to allow same-sex couples constitutional rights, and their “freedom of marriage” and their “right to raise a family” shall be protected by law. Alternatively, as the Human Rights Committee, monitoring body of ICCPR, observed, in their concluding observations regarding Hong Kong in 2013, ‘23… Furthermore, Hong Kong, China should ensure that benefits granted to unmarried cohabiting opposite-sex couples are equally granted to unmarried cohabiting same-sex couples, in line with article 26 of the Covenant.’ Of course, it remains to be seen whether there may be a difference or conflict between the two rights where a homosexual couple under a civil partnership tries to found a family by, for example, adopting a child.

In the landmark decision of W v. The Registrar of Marriages[88] (the transsexual marriage case), the Court of Final Appeal made clear that they were not ruling on same-sex marriage. However, it is significant that the CFA rejected the argument in Corbett v Corbett[89] that procreation is an ‘essence’ of marriage.[90] The case law and statute law in Hong Kong has adopted the Corbett approach,[91] applying only the biological criteria, in deciding whether a party to a marriage is a man or woman. That was the basis of the right to marry intended to be protected under art 37 when it was drafted/adopted and promulgated[92]. Although the court firmly rejected giving an interpretation to art 37 to include transsexual men and women for the purpose of marriage,[93] this clear rejection of the Corbett line of cases may be viewed as laying the foundations for a future decision rejecting the heterosexual requirement of the Marriage Ordinance. A fortiori, when taken together with the decision in Leung and setting matters of sexual orientation on par with race and gender.

(f) Customary marriages

Lastly, art.37 of the Basic Law in Hong Kong may impinge upon and be applied in Chinese Customary marriages and would clearly include certain types of Chinese “customary marriage” as defined in the Marriage Reform Ordinance (Cap.178). This was enacted to implement a number of proposals of the Government to reform the institution of Chinese “customary marriage”, that is, a marriage celebrated according to Chinese law and custom and formally recognised as a valid marriage under the Ordinance.[94] Here both “customary marriage”[95] and “modern marriage”[96] are subject to interpretation in s.2. However, in C v C,[97] the Court of Appeal accepted the definition of a “modern marriage” outlined by Vermier Chui in Marriage Laws and Customs of China[98] who argued that there is no settled form of marriage ceremony that would constitute a valid ceremony in accordance with art.982 of the Chinese Civil Code 1930. As Chui says: “By virtue of this definition all religious weddings, such as marriages in the church, temple or mosque as well as all civil weddings such as registry marriages are valid marriages”.[99]

An example of a “customary marriage” in China is a kim tiu marriage.[100] This was a recognised, if exceptional and strictly regulated, arrangement for a man to formally marry more than one wife and to maintain separate households.[101] However, with this exception, unions and marriages under Chinese law and custom were generally not polygamous and only one kit fat or “principal wife” was accepted. If the kit fat died or if the marriage ended, only then could the man take another wife, the tin fong,[102] or elevate a concubine (tsip), to the status of “principal wife”. Any union of concubinage is now defined by s.14 of the Legitimacy Ordinance (Cap.184) to mean a union of concubinage, entered by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognised as such by the family generally.[103] The status of a tsip had to be acknowledged by the family and especially by the kit fat or tin fong. The tsip was not seen as a “wife” although often given the rights and privileges of one. For example, her children were legitimate children, but if she was not accepted by the family or by the kit fat or tin fong, her status was that of a mistress and any children regarded as illegitimate. The status of a tsip was also entirely dependent on the intention by the man to take her as a tsip.[104]

The Marriage Reform Ordinance was brought onto the statute books precisely to regulate Chinese customary marriages and to require all marriages entered into in Hong Kong on or after 7 October 1971 to be monogamous and in accordance with the provisions of s.4. By s.5, on or after 7 October 1971, no man may take a concubine and no woman can acquire the status of a concubine. By s.6, no person may contract a kim tiu marriage although the status or rights of a party, including any child born of the marriage, shall not be affected in any way. Thus, the rights and status of concubines and kim tiu wives subject to customary marriage before that date were maintained. By s.7, the Marriage Reform Ordinance recognises as a lawful valid marriage, customary marriages celebrated in accordance with the traditional Chinese customs, accepted at the time of the marriage, as appropriate for the celebration of marriage in the part of Hong Kong where the marriage took place or in the place recognised by the family of either party to the marriage as their family place of origin.[105]

By s.8, “modern marriages” are recognised as lawful if entered into before 7 October 1971 by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person. Modern marriages, that is, a marriage celebrated under art.982 of the Chinese Civil Code 1930 in Hong Kong by open ceremony as a modern marriage and in the presence of two or more witnesses, are lawful and valid. This is the case notwithstanding that the proper personal law and religion of the parties, or one of them, was Chinese law and custom and the marriage was prohibited by, or failed to comply with, the requirements of Chinese law and custom or that the marriage was not under and in accordance with the Marriage Ordinance.

The Marriage Reform Ordinance, under Part IV ss.9 to 13, makes provision for the
post-registration of customary marriages and validated (modern) marriages. Section 14 deals with their formal dissolution by the mutual consent of the parties signified by the signature of each of the parties in the presence of two other persons who have also signed as attesting witnesses, to an agreement or memorandum in writing which sets forth unequivocally the final and complete dissolution of the marriage. This shall be valid for all purposes since the execution of the agreement or memorandum.

By s.22A, the Marriage Reform Ordinance allows for the dissolution in Hong Kong of certain marriages celebrated under the Chinese Civil Code 1930 in China after 4 May 1931 but before 1 May 1950 in accordance with the law of China in force when the marriage was celebrated. Such dissolution in Hong Kong, at any time before 7 October 1971, of a marriage by the mutual consent of the parties to the marriage shall be signified by the signature of each of the parties, in the presence of two other persons who have also signed as attesting witnesses, to an agreement or memorandum in writing which sets forth unequivocally the final and complete dissolution of the marriage. This shall be valid if both parties were domiciled in Hong Kong or either of the parties had a substantial connection with Hong Kong. Further, any child of both parties to a marriage to which this section applies shall, whether born before or after the date of the agreement or memorandum, be deemed legitimate for all purposes.

-oOo-

[1]     In England, this means the established Church of England, whose constitutional head is The Queen.

[2]     See Patterson, Cretney, Cilardo, Schumann, Allen, Kusum, Friedman, “Family” in Katz (ed), The Oxford International Encyclopedia of Legal History (Oxford University Press, e-reference ed, 2009).

[3]     For example in ss.57 and 58 of the Matrimonial Causes Act 1857.

[4]     Vervaeke v Smith [1983] 1 AC 145, 152 (Lord Hailsham of St Marylebone LC).

[5]     Namely a union prohibited by Canon Law, the corollary of which would clearly deprive, for example, devoutly Christian same-sex couples from of undertaking “a formal ceremony recognised by law” but allow heterosexual theistic Satanists to do so. Thereby, taking advantage of government and state benefits, such as tax relief, and public housing benefits, together with various other social, medical and pension provisions.

[6]     C v C [2000] 3 HKC 344.

[7]     CCPR General Comment No19: art.23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses (39th Session, 1990).

[8]     Ibid.

[9]     Article 12: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

[10]   Loving v Virginia (1967) 388 US 1, 12.

[11]   See Minister of Home Affairs v Fourie (2005) 20 BHRC 368, [47].

[12]   R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, [44] (Baroness Hale of Richmond).

[13]   Minister of Home Affairs v Fourie, [70] (Sachs J).

[14]   R (Baiai) v Secretary of State for the Home Department, [45].

[15]   ECHR art.8(1). Everyone has the right to respect for his private and family life, his home and his correspondence. (2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[16]   Marriage Ordinance ss.27(2)(b), 29.

[17]   Marriage Ordinance Sch.5.

[18]   The question of same-sex “marriages” is dealt with below.

[19]   [1998] 2 HKLRD 123, 164.

[20]   [2000] 1 HKLRD 717.

[21]   Ibid., [11].

[22]   Ibid., [12].

[23] Legality is only one factor in determining the constitutionality of any restriction of fundamental rights. The second sentence in Art 39 incorporates the test of rationality and proportionality: see Ch 15 to this volume.

[24]   Ibid., 721. Note that the Court of Final Appeal held that the reservation, despite its wide ambit, is not effective to exclude protection of non-derogable rights: Ubamaka v Secretary for Security (2012) 5 HKCFAR 743.

[25]   Ibid., 720.

[26]   [2008] UKHL 53, [14]–[27] and the Court of Final Appeal has held it is often appropriate to refer to the jurisprudence of the European Court of Human Rights and to the decisions of other international and national tribunals regarding international and constitutional instruments having substantially similar provisions. See, for example Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, [59]; Ahnee v DPP [1999] 2 AC 294, 306, where the Privy Council, in construing art.10(4) of the Constitution of Mauritius which was in terms virtually identical with art.12(1) of the Bill, applied to art.10(4) the interpretation given by the European Court of Human Rights in Sunday Times v United Kingdom (1979–80) 2 EHRR 245 to the expression “prescribed by law” in art.10(2) of the ECHR.). See also Chow Shun Yung v Wei Pih (2003) 6 HKCFAR 299, [36].

[27] Gurung Kesh Bahadur v Director of Immigration (2002) 4 HKCFAR 480, paras 27-29, W v Registrar of Marriage (2013) 16 HKCFAR 112…

[28] W v Registrar of Marriage (2013) 16 HKCFAR 112 at 144-145, paras 63-68.

[29]   R (Baiai) v Secretary of State for the Home Department, [14], followed by the Court of Final Appeal in W v Registrar of Marriage, supra, at para 67.

[30]   Ibid.

[31]   Ibid.

[32]   Ibid., [15].

[33]   Ibid.

[34]   Ibid., [16].

[35] Supra, [108-119].

[36]   Ibid., [18].

[37]   Ibid., [19].

[38]   Ibid., [20].

[39]   Ibid., [21].

[40]   Ibid., [22].

[41]   Ibid., [23].

[42]   Ibid., [24].

[43]   Ibid., [25].

[44]   Ibid.

[45]   See Carole J. Peterson, “Reproduction and Family Planning: Individual Right of Public Policy”, in Raymond Wacks (ed), Hong Kong, China and 1997: Essays in Legal Theory (Hong Kong University Press, 1994) p.261ff.

[46]   Ibid., p.262.

[47] The birth rate remained low (12.6 live births per 1,000 population in 2010 to 8.6 in 2014). Moreover, according to the total fertility rate, 1,000 women in 2014 would bear, on average, 1,235 children in their lifetime as compared with 1,127 children in 2010. Total fertility rate refers to the average number of children that would be born alive to 1,000 women during their lifetime if they were to pass through their childbearing ages 15-49 experiencing the age specific fertility rates prevailing in a given year – excluding female foreign domestic helpers. Census and Statistics Department, ‘Population Facts’ April 2015.

[48]   Sino-British Joint Declaration of the Government of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (1984).

[49]   Ibid., Annex I art.XIII.

[50]   Peterson, p.262.

[51]   CCPR General comment No 19: art.23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses (39th Session, 1990).

[52]   [2007] 1 FLR 1629.

[53] There are two main types of surrogacy: gestational and traditional. Gestational surrogacy involves the transfer of an embryo created by IVF, so that the child is genetically unrelated to the surrogate. Traditional surrogacy involves impregnation naturally or artificially of the surrogate, so that the child is genetically related to the surrogate.

[54] ‘Treatment services’ means medical, surgical or obstetric services administered for the purpose of assisting a woman to carry a child: s 2. There is no requirement that the man should be cohabiting with the woman.

[55] Unless judicially separated or the marriage is void and both parties did not reasonably believe the marriage was valid: s 10(8), PCO.

[56] Such consent may be withdrawn at any time: see eg Evans v Amicus Healthcare Ltd, Hadley v Midland Fertility Services Ltd [2004] 1 FLR 67. It has been said, obiter, that a failure to vocalise objection to artificial insemination or to take active steps to prevent it can only amount to consent if they are outward signs of an inner consent: M v F (Declaration of Parentage: Circumstances of Conception) [2014] 1 FLR 352, [2014] 1 FCR 456.

[57] Ie ‘medical, surgical or obstetric services administered for the purpose of assisting a woman to carry a child’: s 2, PCO.

[58] Section 10(4) and (6), PCO. See also Re Q (Parental Order) [1996] 1 FLR 369; Re B (Parentage) [1996] 2 FLR 15.

[59] Section 10(7), PCO.

[60] Re D (a child) sub nom Re R (IVF: Paternity of Child) [2005] UKHL 33, [2005] 2 FLR 843 (HL).

[61] Such consent may be withdrawn at any time: see eg Evans v Amicus Healthcare Ltd, Hadley v Midland Fertility Services Ltd [2004] 1 FLR 67.

[62] Section 10, PCO.

[63] However, the court may consider the alternative of adoption: Re G (Surrogacy: Foreign Domicile) [2008] 1 FLR 1047.

[64] See eg Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 486; and Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421. These cases may lead to complications: see eg Re P (Surrogacy: Residence) [2008] 1 FLR 177 (surrogate entered into surrogacy agreements with two different commissioning fathers and failed to hand over the child to either of them).

[65] Sections 9(1), 10(2), PCO. See eg Re W (Minors) (Surrogacy) [1991] FCR 419, [1991] 1 FLR 385, eggs from the wife and sperm from the husband were implanted in another woman who agreed to hand over the child to them when the child was born.

[66] The 6 month time limit has not been challenged in Hong Kong. However, it seems that a parental order may still be made by a court under its wardship jurisdiction after the 6 month limit: see Re X (A Child: Surrogacy: Time limit) [2014] EWHC 3135, where a parental order was made 2 years and 2 months after the surrogacy birth.

[67] Where the married couple fails to satisfy this test, the court may consider making an order granting an adoption or interim custody pending adoption under the Adoption Ordinance (Cap 290): see eg Re G (Surrogacy: Foreign Domicile) [2008] 1 FLR 1047.

[68] If such persons cannot be found, or if they are incapable of giving agreement, their consent will not be required. However, the surrogate cannot give her consent within 6 weeks of the child’s birth: s 12(6), PCO.

[69] However, authorisation may be granted retrospectively by the court: see Re X and Y (Foreign Surrogacy) [2009] Fam 71, [2009] 2 WLR 1274, [2009] 1 FLR 733.

[70] [1996] 1 FLR 369

[71]   Civil Partnership Act 2004. The purpose of the Civil Partnership Act is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. They may do so by registering as civil partners of each other provided: they are of the same sex; they are not already in a civil partnership or lawfully married; they are not within the prohibited degrees of relationship and they are both aged sixteen or over or if either of them is under 18, the consent of the appropriate people or bodies has been obtained. See also ; Civil Union Act 2004, New Zealand; Civil Marriage Act 2005, Canada; Civil Unions Act, South Africa. Similar legislation now exists in Netherlands (2001), Belgium (2003), Spain (2005), Norway (2009, Sweden (2009). Australia is currently debating national legislation but in all states and territories, cohabiting same-sex couples are recognised as de facto couples, and have the same rights as cohabiting heterosexual couples under state law.

[72]   “UK in Hong Kong” British Foreign and Commonwealth Office http://www.ukinhongkong.fco.gov.uk.

[73] [2013] 3 HKLRD 90; 16 HKCFAR 112

[74]   Now the Domestic and cohabitation Relationships Violence Ordinance (Cap 189).

[75]   See LC Paper No CB(2)330/07-08(01).

[76]   The Government Information services Department press release quoting The Secretary of State for Labour and Welfare, Matthew Cheung. He added “the decision to extend the scope of The Domestic Violence (Amendment) Bill 2009 to cover not only heterosexual cohabitants but also same-sex couples is to provide them with additional civil remedies on top of the current criminal legislative framework … the proposed amendments will not affect the government’s policy of not recognizing same-sex marriage, civil partnerships or any same-sex relationship as a matter of legal status, nor will it involve or affect other existing legislation … After careful and thorough consideration of the views of Legco members and different quarters of our community, we have adopted a three-pronged approach in preparing the proposed legislative amendments to address the concerns of religious and parent groups … The new legal framework will give a new definition to ‘cohabitation relationship’ as it will be devoid of any reference to ‘marriage’, ‘spouse’ or ‘husband and wife’. Specifically, we propose to define it as a relationship between two persons who live together as a couple in an intimate relationship and include such a relationship that has come to an end”. “The Standard” 4th June 2009.

[77]   Anne Scully-Hill, “Addressing the Problem of Domestic Violence?” Hong Kong Legal Community, August 2008 http://www.lexisnexis.com.hk/community.

[78]   [2006] 4 HKLRD 211.

[79] For a critique of the decision in Leung see Robert Danay, ‘Leung v Secretary for Justice: Privacy, Equality and the Hypersexualised Homosexual Stereotype, (2005) 35 HKLJ 545

[80]   (2007) 10 HKCFAR 335.

[81]   Dantes Leung, “The Prospect of Same-Sex Marriage in Hong Kong” Hong Kong Lawyer, March 2008, p.58.

[82]   Ibid., 60.

[83]   Toonen v Australia (CCPR/C/50/D/488/1992) and Young v Australia (2004) 11 IHRR 146.

[84]   [2006] 4 HKLRD 211.

[85] s.118C Crimes Ordinance (Cap.200) was amended in 2014 and reduced the age of consent from 21 to 16.

[86]   [2000] 1 HKLRD 717.

[87] Briefing Paper, Centre for Comparative and Public Law (University of Hong Kong), 3rd Janauary 2014, UNC Legal Studies Research Paper No. 2374875, University of Hong Kong Faculty of Law Research Paper No. 2014/001

[88] [2013] 3 HKLRD 90; (2013) 16 HKCFAR 112

[89] [1971] Probate Reports 83

[90] at paras 84 – 89

[91] See, for example, Chong Fung Yuen v Director of Immigration (2001) 4 HKCFAR 211 cited at para 165 of W

[92] W ibid para 165

[93] W ibid para 188 ‘In my view, the present position in Hong Kong is quite different from that in Europe and the UK when Goodwin was decided. While there was evidence of the changing attitudes in both Europe and the UK, I do not think there is sufficient evidence to show that the circumstances in Hong Kong are such as to justify the Court giving an interpretation to art 37 to include transsexual men and women for the purpose of marriage

[94]   See Pegg “Chinese Marriage, Concubinage and Divorce in Contemporary Hong Kong” (1975) 2 HKLJ 4, 17 and, inter alia, Halsbury’s Laws of Hong Kong (2006 Reissue) Vol.12(2), p.7ff.

[95]   Means a marriage celebrated in Hong Kong in accordance with s.7.

[96]   Means a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of two or more witnesses. Article 982 of the Chinese Civil Code 1930.

[97]   [2000] 3 HKC 344.

[98]   Chui, Marriage Laws and Customs of China, (Chinese University Press, Hong Kong, 1966).

[99]   See Chiu, p.128, cited in C v C [2000] 3 HKC 344, 348. C v C also refers to Lui Kit Chiu v Lui Kwok Hin Chow [1976] HKDCLR 51; Lau Au Yuet Mi v Lai Ka Lam [1981] HKC 179. A reasonable man test was applied in Lau Au Yuet Mi v Lai Ka Lam to determine whether a formal marriage had taken place.

[100]  Leung Sai Lun v Leung May Ling (1999) 2 HKCFAR 94, 102 (Ching PJ), disapproving Chan J in [1997] HKLRD 712, 717. See also Yau Tin Sung v Yau Wan Loi [1984] HKLR 15, 21–22; Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249, 267-268.

[101]  See Pegg fn 61.

[102]  A tin fong wife upon marriage would fill the vacancy left by the kit fat wife and become the mother of all children born by the kit fat wife without any ceremony of adoption. See Halsbury’s Laws of Hong Kong, Vol.12(2), p.8. Re Estate of Chan Lai Fong (unrep., HCMP 2988/2003, [2004] HKEC 654). Cf Re Estate of Ng Shum (No 2) [1990] 1 HKLR 67.

[103]  See Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474.

[104]  Halsbury’s Laws of Hong Kong, Vol.12(2), p.7.

[105]  Ng Ching Man v Ng Lai Wah [1996] 4 HKC 448; Chong Chui Yuk Ching v Chong Pui Cheong [1983] HKDCLR 1; Fan Kam Ching v Yau Shiu Hing [1986] HKDCLR 14. Proof of customary requirements is often the subject of expert evidence; see Ng Ying Ho v Tam Suen Yu [1963] HKLR 923; Chung Kai Fun v Lau Wai King [1966] HKLR 881;
(cf Lui Yuk Ping v Chow To [1962] HKLR 515); Tai Lee Construction Co v Tsang Ching Hing [1966] HKLR 868. See also Yau Tin Sung v Yau Wan Loi [1984] HKLR 15; Yeung Chi Ding v Yeung Tse Chun [1986] HKLR 131.