The Meaning of a Parent
By Winnie Chow, Collaborative Practitioner, Partner of CRB
https://www.crb.com.hk/en/winnie-chow
The Oxford English dictionary defines a parent as “a person who is one of the progenitors of a child: a father or mother. Also, in extended use: a woman or man who takes on parental responsibilities”. This covers both biological and legal connections between a parent and a child.
In Hong Kong, the concept of a traditional family has changed dramatically over the time. Just a little over 50 years ago, it was not uncommon for a nuclear family in Hong Kong to have more than two parents. That was a time when second wives, concubines and t’sips were well accepted and a common part of life in Hong Kong, so often a parent may have more than one spouse/partner. Children who grew up in those family settings are used to having more than two parental figures.
Move forward to Hong Kong’s more recent history from after 7 October 1971, when Chinese customary marriages, unions of concubinage, and modern marriages based on the Chinese civil code were abolished. Since then, only marriages as we now know, namely the voluntary union of one man and one woman to the exclusion of all others, are allowed to be registered and deemed valid. This has created a new norm for Hong Kong, resulting into the majority of families consisting of two parents, one of each gender, and their children.
However, with the passage of time, bringing about societal changes, advances in human reproductive technology and with the rise of divorces, remarriages, and same-sex relationships, the makeup of a nuclear family has also transformed and widened from that of two heterosexual married parents, and their children. We now see a myriad of combinations of parents and children making a family unit, be they married or unmarried heterosexual parents, single parents, married heterosexual parents, step-parents, parents of the same gender or multiple parents. This is regardless of whether all of these parental figures have any legal status in relation to the children in their family.
Despite these trends becoming more prevalent and accepted, many of our laws have not caught up with these changes and still refer to parents as “mother” or “father” and usually on a singular basis for each role. However, hope may be on the horizon. In the recent Judgment of NF v R, Secretary for Justice and Official Solicitor dated 31 August 2023, the Honourable Madam Justice Au-Yeung recognized that “Being a “mother” or “father” with respect to conception, pregnancy and birth of a child is not necessarily gender-specific or marriage-based, although until recent decades, it invariably was so.” The Learned Judge also accepted that legislation “should not be fossilized in its own time and should be construed as “always speaking”. Further, she commented that our Courts should be “astute to the changing world where people build families in different manners other than through a marriage or heterosexual relationship”.
In family law, it has been accepted that there are potentially four types of parenthood:-
(1) Biological parent - the person who is genetically linked to the child;
(2) Gestational parent - the person who carries and gives birth to the child;
(3) Psychological/social parent - the person who may be neither the biological nor the gestational parent, but develops a relationship with the child through caring, nurturing, loving, guiding and protecting the child, often catering for the children’s emotional, psychological and physical needs; and
(4) Legal parent – the person who has parental responsibilities for the child and that parent and child enjoy certain legal rights which flow from that relationship.
The case of NF v R involved a same-sex couple, (NF and R, who were married in South Africa), and their child (K). The couple went through a medical procedure known as Reciprocal In Vitro-Fertilisation, whereby an egg was extracted from R and fertilized with sperm from an anonymous donor to create an embryo. The embryo was then transferred to NF’s uterus. From that, NF gave birth to K. In short, NF is the gestational and legal parent of K, whereas R is the biological and psychological/social parent of K. NF applied to seek a declaration that in law, R is declared as K’s “parent”.
The Learned Judge drew a distinction between (1) natural candidates to be termed as “parents” in the context of care arrangements for the child, as against (2) candidates who may be termed “parents” in a case to determine the legal parents. Despite acknowledging that there will be no prejudice to anyone by making the declaration sought, that those in K’s position are being discriminated against without such a declaration and that this is an infringement of the fundamental rights of K pursuant to Bills of Rights Articles 20 and 22, she declined to make a declaration that R is the legal parent of K due to the lacuna in our existing legislation, which needs to be rectified by a change in our laws. Instead, the Learned Judge made a declaration that R is a parent of K at common law.
What a parent at common law means to the world at large, and the practical assistance such a declaration would give K, R and NF in their daily life remains to be seen. It is hoped that this area of law can continue to develop with greater clarity and support to those in similar situations, embracing the reality that we do have different makeup within the modern families in Hong Kong.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.