High Court confirms unconstitutionality of non-recognition of same-sex parentage as LegCo blocks Registration of Same-sex Partnerships Bill

What is next for same-sex couples in Hong Kong?

9 and 10 September 2025 were significant days in Hong Kong for LGBTQ+ rights with two important decisions a day apart:

1. On 9 September there was a judicial decision that sent a firm message in support of the rights for same-sex parents.   
2. On 10 September there was a legislative decision that reflected a very different view. 

This article considers both positions. It also considers what the next steps might be in view of (a) the apparent conflict between the Court and the government and (b) the very limited time left in the government’s deadline by which to establish an ‘alternative framework’ for the legal recognition of same-sex partnerships.

The two decisions

A brief chronology of the two threads which have travelled alongside each other raising different, but overlapping issues:

5 September 2023 – The Hong Kong Court of Final Appeal refused to recognise same-sex marriage in the case of Sham Tsz Kit v Secretary for Justice (No 1) (2023) 26 HKCFAR 385, brought by LGBTQ+ rights activist Jimmy Sham. However, in its judgment the CFA made a Declaration that the Government was in breach of its obligation under Article 14 of the Hong Kong Bill of Rights (the right to privacy and family life) which required it to establish an “alternative framework” for legal recognition of same-sex partnerships and the grant of appropriate consequential rights and obligations. The government was given a 2-year period, expiring on 27 October 2025, within which to act.

12 September 2023 – The High Court gave judgment in a case concerning the parentage of a little boy, then aged 2 (NF v R [2023] HKCFI 2233). The boy, K, was born to B, one member of a female same-sex couple following the fertilisation and implantation of her partner (R’s) egg by donor sperm (known as ‘reverse IVF’). B and R were married in South Africa and B underwent IVF treatment in South Africa before moving to Hong Kong. The case was not about their same-sex marriage/partnership, but rather R, who was a biological parent, sought a declaration that she be recognised as K’s “parent”. Apparently reluctantly, the Court found no available legal route to find R could be recognised as K’s “parent” but the court did find that she was to be treated as a “parent at common law.” Notwithstanding the judgment, the Department of Justice subsequently refused to re-register K’s birth to include R as K’s parent on the birth certificate, a decision that was judicially reviewed.

Fast forward to September 2025:

9 September 2025 – By the time Mr Justice Coleman gave judgment following judicial review of the Department of Justice’s decision, K was aged 4.  Despite opening the judgment in K (An Infant) by his Next Friend, R v The Secretary for Justice [2025] HKCFI 1974 with recognition that K was a “lucky little boy” to be the son of a committed, loving same-sex marriage, K still does not have a birth certificate naming both of his parents. The judgment undertakes careful and detailed analysis of both the Hong Kong Bill of Rights – in particular the Article 14 right to family life, Article 19 right in respect of marriage and family, Article 20 right of the child and Article 22 right to equality - and the Parent and Child Ordinance – which does not cover a situation where a child has two same-sex parents.

In very broad summary of a comprehensive, eloquent and duly analytical judgment, the judge found that K’s rights had been infringed and that it was in his best interests to know his origin and lineage. It held that the non-recognition of both parents was discrimination, unconstitutional, and unjustified and consequently that there was a basis for the grant of relief.  What the precise form of that relief should be will be the subject of further legal argument.

10 September 2025 – The CFA having set the task to the government following Jimmy Sham’s case of putting in place an alternative framework to recognise same-sex partnerships, a draft Bill was put to the Legislative Council’s vote on 10 September 2025. The bill was limited in its scope, recognising some limited rights for same-sex couples already married overseas, and allowing such overseas marriages to be ‘registered’. The bill however did not go so far as to allow same-sex marriage in Hong Kong, or deal with the consequences of a same-sex marriage (having taken place overseas) breaking down. Notwithstanding that, the judgment in the K case the day before, and the deadline set by the CFA which expires next month, the Bill was opposed by 71 of the 89 members voting. 

Had it been approved, the Bill would have established a registration system so that same-sex couples already married or in civil partnerships abroad, would have been granted some rights, such as the right to make medical decisions for their partner or to be involved in funeral and cremation arrangements  It did not grant the right to marry in Hong Kong, nor the right to form a civil partnership, nor did it grant full equality. It did not address parental status, child-related rights, tax, immigration, inheritance, employment or many other rights now seen as standard between same-sex couples in many other parts of the world. Indeed, its scope was intentionally narrow and focussed on what were described as the “basic social needs” of same-sex couples.  

What happens next?

In the case of the little boy known as K, the court has yet to consider the most appropriate grant of relief. That is a more specific difficulty that arises for one family in the social and cultural context of Hong Kong’s approach to same-sex relationships. The decision in K is also potentially limited in scope. It is not known whether the same approach would be taken if, for example, R, had no biological link to the child (eg. this was a simple case of IVF and not reverse-IVF), and which would always be the case in a male same-sex couple.

The more general difficulty of how the government will comply with the requirement to meet the 27 October 2025 deadline by introducing a same-sex friendly legal framework remains. 

There is scope for the government to apply to the Court of Final Appeal to request more time, provided it can demonstrate that it has endeavoured to comply expeditiously and has compelling reasons to support the extension.  Alternatively, the Bill might be revised to address some of the concerns raised, but this feels like a challenging prospect given the fundamental objections held by many of those in the legislature. Despite the social tide – and the courts - moving more in favour of same-sex rights, there are still many in the legislature who remain concerned that such rights represent a threat to marriage and more traditional family models. There appears to have been a consistent block in the legislature for many years now.  The government sent a firm signal about this in 2018 when it voted down a motion to conduct research and consultation about the introduction of a legal framework to recognise same-sex relationships. Much more recently, in February 2025, the Legislative Council passed a motion to “protect the institution of marriage” between heterosexual couples. 

The conflict between the legislature’s views of same-sex relationships and what is required of it by the CFA is stark.

Theoretically, administrative or policy measures, interim guidance and statements, might offer a route to support same-sex relationships where the legislature appears blocked, but the CFA in Jimmy Sham’s case made clear a legislative framework is needed. If that is not put in place within the next month, the government will be in breach of the order of the most senior court in Hong Kong. How this constitutional stand off is resolved remains to be seen, but it is clear that somehow alignment needs to happen, with some degree of recognition being granted for same-sex relationships.  Whether this is too little, too late for Jimmy Sham and for K, B and R, remains to be seen, but it is plain that neither story is yet concluded.