Are Parental Rights Equal for All Families?

In a disappointing development in Italy, the government is taking discriminatory action and requiring the removal of the non-biological lesbian mother on children’s birth certificates on the grounds that it is ‘contrary to public order’. Such measures are stripping parental rights away from gay parents.

Disappointingly, attempts to take the matter to the Supreme Court in Italy have been rejected. Upon the removal of their legal recognition on paper, such parents may be denied custody rights and legal access to their children. There is also a risk that they may face challenges in performing certain day to day parental responsibilities such as picking up their children from school or accompanying them to the doctor.

Although Italy has recognised same-sex civil unions since 2016, it does not provide such couples with full-adoption rights (in part because surrogacy remains illegal). This leaves the non-biological parent in an impossible situation. It also means that in the event the legally recognised parent passes away, the child may end up a Ward of the State.

In Hong Kong, same-sex marriage or civil unions are yet to be legally recognised. This also means that same-sex couples do not automatically have the same parental rights. However, the Court (in LS v KG [2021] HKCFI 1401) ruled that a non-biological parent of a child born to a same-sex partner can be granted guardianship rights, joint custody and shared care.

The Court focused on what would be in the child’s best interests and recognised that whilst not legally a parent under the laws of Hong Kong, the non-biological mother was a “natural” parent of the child, in a psychological and social sense, and that the welfare of the child meant that the parent should have equal rights.

It is important to note that this principle only appears to apply where one of the parents is the biological parent.

The approach of the Italian government is a stark reminder for family lawyers around the world to take proactive steps to protect all families, regardless of their form and structure. While the law continues to develop in Hong Kong, such parents still need to be proactive in obtaining Court orders, and hurdles still exist when relationships break down, since divorcing a same-sex partner in Hong Kong is still not currently possible.