HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
Furthermore, the court must be satisfied that the sur - rogate mother and the father of the child have freely and unconditionally consented to the order with full understanding. To ensure genuine consent, the sur - rogate mother’s agreement is legally invalid if given within six weeks of birth, save for a situation where she cannot be found or lacks capacity so that con - sent is not required at all. Finally, no money or benefit, other than reasonably incurred expenses, may be paid or received in relation to the surrogacy, handover, or order, unless authorised by the court. This restriction applies regardless of whether the surrogacy occurred in Hong Kong or abroad. 1.5 Relevance of Marriage at Point of Conception or Birth As noted in 1.2 Requirements for Birth Mothers and 1.3 Requirements for Fathers , while the birth mother will obtain the right of custody automatically, that of the father solely depends on the parents’ marital sta - tus at the time of the child’s birth, rendering their mari - tal status at the time of conception legally irrelevant. For the birth mother, marital status is entirely irrelevant as she automatically has the rights and authority from the moment of birth regardless of whether she is mar - ried. For the father, however, being married to the mother at the point of birth is critical: married fathers imme - diately obtain automatic, equal rights and authority alongside the mother. In contrast, if the parents are unmarried when the child is born, the child is legally illegitimate, and the father has no automatic rights and authority. In such cases, the father must actively apply under Section 3 (1)(d) of the GMO to establish his paternity and be granted some or all of the rights and authority he would have automatically held had they been married at birth. 1.6 Same-Sex Relationships As same-sex marriage is not legally recognised in Hong Kong, same-sex couples do not automatically enjoy the same parental rights as heterosexual cou - ples even if both partners consent to co-parenting, and only a biological parent would be the legal parent as of right. Because of this, a non-biological same-sex partner cannot rely on automatic legal status and must
instead apply to the court to formalise their parental rights. In Hong Kong, while current legislation does not auto - matically grant custody to same-sex partners, the courts evaluate non-biological parents in same-sex families on the same basis as in the heterosexual fami - lies, awarding guardianship, joint custody, and joint or share care and control whenever it serves the child’s best interests. The case of AA v BB [2021] HKCFI 1401 serves as a good example, where the non-biological lesbian spouse was appointed as the guardian of her chil - dren and was granted joint custody along with joint care and control of them, following the social inves - tigation reports confirming her profound bond with and parental role toward the children. The result of AA v BB affirms the principle that the primary con - sideration of the Court is to prioritise the children’s welfare regardless of the parent’s sexual orientation. In a recent case, YCR also known as CRY v YSJ nee SJE [2025] HKFC 96, a lesbian mother was granted joint custody and sole care and control in a relocation application, regardless of her sexual orientation. These decisions demonstrate that the court’s posi - tion on sexual orientation in custody matters is well- established. Ultimately, the cornerstone of Hong Kong family law regarding custody remains the welfare prin - ciple – the child’s best interests are the court’s first and paramount consideration, which remains equally applicable to disputes between parents and non-par - ents (referred to in J & Another v C & Others [1970] AC 668 cited in AA v BB ). 1.7 Adoption Adoption is the legal mechanism by which parental rights and responsibility are permanently transferred from birth parents to adoptive parents. In Hong Kong, all adoptions must comply with the Adoption Ordi - nance (Cap. 290) (AO), under which the child’s best interests serve as the first and paramount considera - tion as per Section 8. Prospective adoptive parents can acquire legal cus - tody by securing an adoption order from the District Court under the AO. The qualifications are set out in
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