Protecting Your Family as a Same-sex Couple

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TRANSCRIPT

Protecting Your Family as a Same-sex Couple

Alfred Ip 0:09
Hello, everyone, welcome to our video. I’m Alfred Ip and…

Azan Marwah 0:13
I’m Azan Marwah.

Alfred Ip 0:14
And today we talk about family planning. Let’s say that there is a couple who have decided to tie the knot. The first thing that they will ask is, should we get married? What will be your advice?

Azan Marwah 0:30
I would absolutely advise people to seriously consider marriage. Provided you understand what it means for the rest of your life! Marriage is something that provides a lot of legal protection people’s relationship between each other, but also their relationship with their children, if they should have children.

Alfred Ip 0:51
Yeah, it’s a commitment that shouldn’t be taken lightly. It is not something that you should just get drunk and rush into a mini church in Las Vegas. That’s the wrong way!

Azan Marwah 1:03
Like many areas of the law, together with authority comes responsibility.

Alfred Ip 1:09
Yes.

Azan Marwah 1:10
And so marriage with marriage, you’re taking on certain rights. But with those rights come liabilities, come responsibilities.

Alfred Ip 1:18
Yeah. A lot of people have the misconception, I will call it a misconception, that they think a marriage contract certificate would not protect a marriage. Actually, it cannot be further from the truth.

Azan Marwah 1:32
I agree.

Alfred Ip 1:33
Yeah. Okay, let’s say that they are getting married. And now they plan about having babies. Obviously, this is a fairly challenging subject. Because especially when two men are wanting to have babies, they can try and try, but they cannot really get it. So what are they going to do?

Azan Marwah 1:57
Well, really, people who are infertile…

Alfred Ip 2:01
Yeah.

Azan Marwah 2:02
Or maybe one of one of them may be infertile, or together, they’re infertile. In a sense, it’s no different between same sex and opposite sex couples need, they have a few options. They can try medically assisted reproduction, IVF. Sometimes, if one of them can’t physically give birth to the child, they might use something called surrogacy. Or they might consider adoption.

Alfred Ip 2:27
Yeah. And in that respect, because it’s so complicated. Let’s try a different subject. The first thing would be, let’s try to adopt. I mean, this is applying to both gay and lesbian couples, they can decide to adopt. But is it easy to get an adoption in Hong Kong?

Azan Marwah 2:48
Adoption in Hong Kong I can say is very, very difficult. But it really depends on the circumstances. So there are about 350 adoptions every year…

Alfred Ip 3:01
Okay.

Azan Marwah 3:01
…in Hong Kong, give or take. They are divided into two big baskets. One of them is intra family, sometimes called relative adoptions. So those are where maybe parents have died and the uncle, the aunt, the grandmother is adopting the child. Or they might be step parents adopting.

Alfred Ip 3:23
Yes, that’s actually the most that we have come across. Step parent adoptions.

Azan Marwah 3:28
Where the court is effectively recognising that that second parent is a parent and should be treated as a parent involved for the rest of the child’s life. And then the other big basket are non relative adoptions. Stranger adoptions.

Alfred Ip 3:45
Stranger adoptions.

Azan Marwah 3:46
Now, that’s not my term for it. The legislation has a different word. But effectively were the two people have no relationship with each other. Now, for those groups there are basically two subgroups. One group is the, let’s say, the assisted adoption, where you’ve gone to an adoption agency, typically the social welfare department, or one of the three other adoption agencies,

Alfred Ip 4:14
Like Mother’s Choice?

Azan Marwah 4:15
Like Mother’s Choice, like Po Leung Kuk and ISS. Those are the other adoption agencies. Now, the system for that kind of adoption is very rigorous. You can say all adoption and rigorous, but in that system, you really have no control. All you can do is you open your life to the adoption unit, you show them and you demonstrate to them that you are qualified, you’re the sort of person who should adopt a child, then you set out your preferences. Now, when you do that, you limit what child you can be matched with. That matching process is a very difficult process. And really, it’s like a black box. They have a meeting somewhere, nothing to do with you, and someone who has a conflict of interest like let’s say the adoption agency that you’ve sought their help, they don’t make that decision. It’s made by this matching pen. Now those cases, they’re on their own. Now, if you want to adopt, you don’t need to adopt as a couple. But you can adopt as a couple if you’re married.

Alfred Ip 5:19
But can you adopt as a same sex couple then?

Azan Marwah 5:23
This is one of those questions that needs to be answered by the court.

Alfred Ip 5:27
No case has been challenged in a court yet?

Azan Marwah 5:31
No case has come up. We’ve had cases where there have been same sex couples who weren’t married. So I did a case a few years back where one of the parties adopted the child, but because they weren’t married, we didn’t even attempt a joint adoption.

Alfred Ip 5:47
Okay. But there’re actually a lot of couples, same sex couple who are on the queue. And they seem to be at the bottom of the pile, they can never get placed with a child.

Azan Marwah 5:58
Yes. The difficulty for them is that they are applying as a sole parent. And there’s always going to be a bit of a bias towards the joint parent adoption. And you can think of it as being for very good reasons, including that with a sole parent, what if something happens to that parent? With a joint parent there is there’s a backup.

Alfred Ip 6:20
Yeah. But then another limitation is that for example, two men are married and they want to get adoption. Only one of the power of the couple is on the line as the applicant and he will only be placed with boys.

Azan Marwah 6:39
That’s right. There is a statutory I wouldn’t say bar but a hurdle that means that with the exception of very exceptional cases, for what they call “good reason.” Except those exceptional cases, there will not be a young woman or young girl adopted by a sole male.

Alfred Ip 7:00
Yeah. And in that respect, it’s very fair, vice versa. Then lesbian couples cannot adopt a boy no matter how much they want one.

Azan Marwah 7:10
There is no such exception.

Alfred Ip 7:11
There’s no such exception?

Azan Marwah 7:12
The exception only applies to males adopting females.

Alfred Ip 7:15
Oh, I learned something new today!

Azan Marwah 7:18
If you think that that is discriminatory.

Alfred Ip 7:20
Yes.

Azan Marwah 7:20
Actually, when it came up in the Legco they also thought this is discriminatory. But there is a carve out like I said there’s an exceptional carve out.

Alfred Ip 7:29
And irony is that if they want to protect young female from being mistreated…

Azan Marwah 7:37
Molested…

Alfred Ip 7:38
…molested, in that case, the boy is more likely subject to that risk.

Azan Marwah 7:45
Well, yeah. If you if you take that mindset, yes. This is a somewhat outdated view of adoption. And I will say that other jurisdictions, they’ve abandoned this. Including the jurisdictions that our adoption law is based on they looked at it again and said, we should change the law. This doesn’t make sense.

Alfred Ip 8:06
It’s ridiculous. For couples who like are tired of waiting, let’s say they tried it through the normal adoption agency process and then not placed with any babies. For the lesbian couple, they can try IVF.

Azan Marwah 8:23
That’s right. Yeah. And in Hong Kong, that is completely open to them. It comes with the with the question of well, what is the status of the non-conceiving or the non-carrying mother, there is a case coming out fairly soon? I hope, where there will be a judgement dealing with what the status of that second parent is. But at the moment, it’s a bit up in the air.

Alfred Ip 8:23
So if a lesbian couple have a baby and one of the mothers, one of the one of the party is the gestation mother, the other one does not have automatic right…

Alfred Ip 9:05
That’s right.

Alfred Ip 9:05
…toward the baby. So what should they do?

Azan Marwah 9:08
Well, absolutely, they should take steps by seeking legal assistance and applying for guardianship. Okay, this is something that you can do regardless of whether or not you’re married. Regardless of whether or not you’re in a same sex or opposite sex couple, both male, both female, it doesn’t matter. You can go forward to the court and apply for a guardianship order. And a guardianship order will give you all the rights and responsibilities all the authority of a parent. It is not the same thing as becoming a parent, but it gives you all of the powers that a parent would have during the child’s childhood.

Alfred Ip 9:47
Okay. That is something that actually I find very confusing. What is the difference between a guardianship order and a parental order? And what should people consider applying?

Azan Marwah 9:59
Well, so you mentioned parental orders. I would, I would just be more specific about the differences. There’s one, so one thing is called a guardianship order. Then there’s, then there’s an adoption order. And then there’s a parental order. A parental order declares that you ARE the parent, as though you are the natural born parent of a child. That entails a lifelong relationship. And a two way relationship, your relationship of family, father and son, father, daughter, etc. That relationship is one that doesn’t only concern the raising and maintenance of the child during childhood, it covers everything from from what happens when you die. What happens when you’re sick or you’re in the hospital, through to all of the other decisions that families make for each other and the law protects. Guardianship is different. Well, before we get to go to ship to finish that adoption, adoption is almost like a parental order. Except that we don’t, we don’t have this fiction that you were always the parent. We’re saying from this date onwards, you become the parent. And it is also a lifelong relationship. Guardianship is different guardianship is only to do with the authority of a parent that relates to the childhood. So it is, in that sense, it is a one way street. That person is not your son or daughter, they are your ward. That’s a technical legal word, but it basically means that they’re under your authority. But that relationship ends when you turn 18.

Alfred Ip 11:40
Okay, that’s actually very different. Especially I can imagine when a couple wants to have a recognition of the relationship with the baby. The only thing that they want is a complete relationship, just like any other parents to the child. So the parental order is always going to be preferred.

Azan Marwah 12:04
A parental order would be preferred to an adoption order, and an adoption order would be preferred to a guardianship order.

Alfred Ip 12:11
But is it more difficult to get a parental order than a guardianship order?

Azan Marwah 12:15
Yes. So, parental orders, there’s declarations of parentage. So where you’d say there is a legal relationship, you’re simply going to the court and saying, court, please, please confirm that this relationship exists. A parental order is one that happens after a child is born using surrogacy. Those kinds of orders, the court is saying we will have this fiction that you were born naturally of these two people. Now to get that order is very, very difficult. You have to comply with certain requirements set out in the in the ordinance that deals specifically with the manner in which the child was was born – surrogacy relationship. It requires consents before the birth of the child. Now, that’s a very complicated application process and absolutely should be done with the assistance of lawyers. It is totally different from guardianship. Guardianship is not really concerned with how the child came to be. It’s simply concerned with what’s in the best interests of the child. And typically, it will be in the best interest of the child to be under the authority and responsibility of the people who are raising the child. Those people do not need to be married, they do not need to be biologically related to you. But a parental order is really focused on how you were born.

Alfred Ip 13:39
Which comes from a very complicated question that is surrogacy. This is particularly the case when we are talking about two men who are in a marriage and they want to have children. Obviously, they cannot carry the child themselves but they have to rely on assistance, external assistance, but then surrogacy itself is illegal in Hong Kong.

Azan Marwah 14:02
Yes. So the laws relating to surrogacy, they are a minefield. Yeah, frankly, and I wouldn’t attempt to explain them in any depth over a short video. I would say that people who have had a surrogacy arrangement, should, they be strongly advised to take legal advice as soon as possible? Because there are implications including possible criminal implications. And really, to regularise that situation, you need to take advice.

Alfred Ip 14:35
Absolutely!

Azan Marwah 14:36
You need to consider what application you can make.

Alfred Ip 14:38
A lot of people do not understand the gravity of a surrogacy arrangement, because actually, first of all, surrogacy is a fairly expensive arrangement. Not everyone can afford it, but for those who can afford it. The first thing is how to where to lay the relationship between the couples The surrogate mother and the agency that put it together. How to get the mother impregnated with assistance like IVF, usually it is IVF. And then how to ensure the party’s rights and liabilities in the course of the pregnancy. And most importantly, afterwards, the surrogate mother has to provide the necessary assistance in order for the parents or the couple to have full right of the child in the foreign court. A lot of times they are either doing it from a birth certificate with both parents listed as the father mother or parent one, parent two, we call it – no more father and mother. But then afterwards, when they come back to Hong Kong, a lot of time to have this question being faced by the immigration. Where is the child coming from? What happened to the birth mother? Whether the consent is available? Whether the consent is voluntary? Yeah, it’s it’s a commercial arrangement. And the horrible part is, if it is a commercial arrangement, whether you’re in breach of the law, that the authority is actually going to carry out investigation, and if necessary, consider, if appropriate, consider prosecution.

Azan Marwah 15:31
That’s right. Really, this, as I said before, is a minefield. And unfortunately, there were some documentaries produced earlier and people watch those documentaries. And they weren’t really prepared by lawyers, with an awareness of what the law is in Hong Kong. Yeah. And so I don’t criticise those people who’ve done those arrangements, or even those people who want to have those kinds of arrangements. I totally understand.

Alfred Ip 16:55
Understandable!

Azan Marwah 16:55
But they need to look for legal advice urgently. It’s not something that can be dealt with simply by saying, we’ve applied for this order in the foreign court, because Hong Kong law doesn’t automatically recognise that ordering the foreign court. Before that order is made, I really do think people should take advice, because there are better and worse kinds of foreign orders. For example, a foreign adoption order is much preferable to a foreign parental order. I won’t go into why. Except that one of them the adoption or will receive automatic recognition. Whereas the foreign parental order is unlikely to be recognised.

Alfred Ip 17:38
Yeah, it is really a minefield and a lot of people come to lawyers too late. They have the whole process done. And then with even the birth certificate, and they bring the baby back to Hong Kong without knowing that this kind of situation may arise.

Azan Marwah 17:56
And then sometimes they leave that to go for months, years, until it becomes a problem. And unfortunately, or fortunately, the courts really encourage people to come forward and not to delay regularising the situation. And it can be much harder if you wait, because it may be that the birth parents, the birth mother has disappeared in the meantime, yes, you can’t get evidence from her. So I would really suggest anybody in that situation, you need to take legal advice,

Alfred Ip 18:25
And you need to do things early. Don’t wait until you have to apply for the passport for the baby. Or if they enrolled them into school. It would be far too late. But okay, let’s say that the parents are now in Hong Kong, and then they managed to get through the process without any difficulty. The parental order is definitely going to be preferred, right?

Azan Marwah 18:52
That’s right. Yes.

Alfred Ip 18:53
And in that respect, they need to show the lineage of the birth.

Azan Marwah 18:57
That’s right. So there will need to be a DNA test. Okay. Now for same sex couples. It’s an open question about whether or not they can apply for a parental order. It’s likely to be a question that will have to be resolved through the courts. And probably one of those things that will have to go to the higher courts.

Alfred Ip 19:19
Yeah. Is this actually a very sensitive subject that all parents must think through before deciding whether to embark upon that process. And parental orders seems to be harder to get. Let’s just get the guardianship order.

Azan Marwah 19:38
Yeah, I think that that’s always good advice. Even it is great advice to do that. In the meantime, while you’re trying to regularise, whether it’s adoption or a parental order. This is the kind of application that can be made at any time. It is very flexible. So it really, it’s not important people’s relationship with the child, more important is what’s in the best interest of the child

Alfred Ip 20:05
And to same sex couples can apply, irrespective whether they’re married or not.

Azan Marwah 20:13
That’s right. So in the case of AA and BB, I know you and I have talked about that case before, they were a lesbian couple, they were not even in a same sex marriage, they had a kind of civil partnership, they were able to apply for joint custody of their two children. And they were able to get what we call care, shared care and control. This was despite the fact that only one of them had a legal relationship with those children.

Alfred Ip 20:44
Ultimately, parental order is much more heavy compared with the guardianship order. But for the purpose of the children benefit, guardianship order will be sufficient in most cases.

Azan Marwah 20:59
Yes, and it will enable you to both parents to independently and also collectively make all of the decisions that the child needs when the child is a child. Now there are, I really would suggest anybody who has this kind of situation where they’re in a same sex couple, and they have a child in their care, they really should take legal advice. It can be a very simple application. But one you definitely need to do legal assistance.

Alfred Ip 21:29
Yeah, getting the lawyer involved in the very beginning is actually very good advice. We have come across so many cases that we wish to do more for the clients, but it’s too late.

Azan Marwah 21:47
I think, unfortunately, people, they are intimidated by the legal process. And they either think it should be done very easily and simply, or they think that it’s too expensive, and they wait until something goes wrong. When something goes wrong, it’s the wrong time to prepare. You really, think of it like a simple dental surgery. You know, if you do it early on, you can avoid the big surgery, you can avoid having the tooth extracted, if you just take precautions earlier. But you need to do that with some professional assistance.

Alfred Ip 22:24
Nip it in the bud.

Azan Marwah 22:25
That’s right.

Alfred Ip 22:26
Yeah, is a very complicated subject. I think we can wrap it up here and another day we can talk about another subject.

 

This video is for informational purposes only. Its contents do not constitute legal or professional advice.