Why homosexual couples deserve adoption rights

Ashley Sit

Author Ashley Sit is a law student at HKU enrolled in the SocSc (Govt & Laws) & LLB programme. 

Recent judgments have shed light on same sex couples’ quest for more equality and rights. Victories were particularly prominent for same-sex social welfare rights. In Leung Chun Kwong v Secretary for Civil Service, the Court of Final Appeal ruled that same sex couples married legally overseas are entitled to Spousal Benefits in Civil Service and Joint Assessment of Tax Liability. Some also see the judgment as a possibility to break the chain that ties social welfare and traditional marriage. Undoubtedly, the ruling opens up opportunities for rights such as application for public housing and in particular, adoption (Lo and Lam, 2019). In my view, the Social Welfare Department should be more agile and responsive to same sex couples who apply for adoption. 

Like any other heterosexual couples, some homosexual couples also long for building their own family. On 20 July 2020, the South China Morning Post published a story that entails the difficult journey of a pair of same-sex couple in adopting a child (McHugh, 2020). As Hong Kong only recognises heterosexual marriage (MK v Government of HKSAR), the couple can only apply for adoption under unmarried single person. However, after seven years of waiting, there is still no news from the Social Welfare Department, the department in charge of adoptions. This incident once again reminds us of the discrimination faced by homosexual couples, which in my opinion, could be challenged in courts.

The right to equality is protected under Article 25 of the Basic Law, which states that all Hong Kong residents shall be equal before the law. Article 22 of the Hong Kong Bill of Rights Ordinance (Cap. 383) also protects the right to equality. It states that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Adoption Ordinance (Cap.290) may have infringed the rights of homosexual couple provided by the above articles.

Section 4(b) and section 5(2) of the Adoption Ordinance provide that a joint adoption should be made by 2 spouses. Though it does not expressly mean the ineligibility of same sex couples, that does not lift the barrier to same sex couples’ journey to adopt children. The Social Welfare Department, when considering the eligibility of adoption applicants, takes into account the applicants’ marriage stability. In MK, it is recognised that the right to marry is restricted to heterosexual couples. Without the right to marry in Hong Kong, same sex couple can only adopt the child as a single individual.   Therefore, there is a difference in treatment between same-sex couple and heterosexual couples under the Ordinance. In order to determine whether differential treatment is unlawful, the courts apply the justification test used to determine if incursions into constitutionally protected rights are lawful (QT v Director of Immigration )

As summarised in Leung Chun Kwong, the justification test consists of four steps or elements: (i) does the differential treatment pursue a legitimate aim; (ii) is the differential treatment rationally connected to that legitimate aim; (iii) is the differential treatment no more than necessary to accomplish the legitimate aim; and (iv) has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights. 

The government may contend that the legitimate aims of such differential treatment is to protect the traditional heterosexual family sturcture and secure the best interests of the child in adoption. Putting these aims under consideration, I believe there is no difference between same sex couples and heterosexual couples when it comes to securing benefits for the children. Research also shows that children of gays and lesbians were virtually indistinguishable from children of heterosexual parents (American Psychological Association, 2010). Same sex couples can also construct a loving and warm family to the children being adopted because they can devote the same resources and dedication like any heterosexual couples. Furthermore, if the right to adopt is established, this may attract more same sex couples to adopt children. This eventually reduces the government’s burden to take care of the children. 

Moreover, as observed by Ma CJ and Ribeiro PJ in W v Registrar of Marriage, many people now marry without having children, while many others have children without getting married, neither group attracting social opprobrium. This shows that marriage and having children is not inextricably linked together. Allowing same sex couples to adopt does not lead to more same sex relationships or a lower status of heterosexual marriage.  It can be suggested that the restriction of not allowing same sex couples to adopt is not rationally connected to the aims. The restrictions of adoption rights may be successfully challenged in court because of the unjustified differential treatment. 
  
Some may argue that children raised by same sex couples will also have same sex orientation and different gender identity compared to children raised by heterosexual couples. However, this was proved wrong by research. In fact, there is no significance difference in terms of gender identification between children raised by homosexual or heterosexual couples (Patterson, 2013). Furthermore, studies show that children that are brought up by homosexual couples are less likely to be subject to gender stereotypes. This may potentially contribute to a more equal and diverse society (Goldberg and Smith, 2012). Furthermore, some people may point out that children raised by same sex couple will be easily discriminated because of having no mother or father. However, I must point out that discrimination comes from misunderstanding and ignorance. It is by loosening the restrictions to the rights of same sex couple adoption can these myths be rebutted and individual rights be upheld.  

To conclude, it is high time for the Social Welfare Department to reconsider its policy that impose harsh restrictions to same sex couples on the rights of adoption. The proportionality test may assist the court in unlocking the adoption rights for same sex couples. Currently, there are 79 orphans waiting for a warm home and loving parents (Social Welfare Department, 2020). Everyone deserves a loving family, having more homosexual couple to adopt children can definitely give more abandoned children hope and warmth.  Now is the time to act.

References:

1. Lo & Lam. (2019). Government loses litigation on the right to equality: public housing, CSSA, and adoption may be challenged. Hong Kong 01. https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/337813/%E5%90%8C%E6%80%A7%E5%A9%9A%E5%A7%BB-%E5%B9%B3%E6%AC%8A%E5%AE%98%E5%8F%B8%E6%94%BF%E5%BA%9C%E9%80%A3%E7%95%AA%E6%95%97%E8%A8%B4-%E5%85%AC%E5%B1%8B-%E7%B6%9C%E6%8F%B4-%E9%A0%98%E9%A4%8A%E5%B0%87%E5%8F%97%E6%8C%91%E6%88%B0
2. McHugh, F. (2020). Gay adoption is allowed in Hong Kong, but it rarely happens. Is there discreet discrimination at work?. South China Morning Post. https://www.scmp.com/magazines/post-magazine/long-reads/article/3094549/gay-adoption-allowed-hong-kong-it-rarely-happens
3. American Psychological Association. (2010). Adopted children thrive in same-sex households, study shows. Vol 41, No. 9. 
4. Patterson, C. J. (2013). Children of lesbian and gay parents: Psychology, law, and policy. Psychology of Sexual Orientation and Gender Diversity, 1(S), 27-34
5. Goldberg, A. E., Kashy, D. A., & Smith, J. Z. (2012). Gender-typed play behavior in early childhood: Adopted children with lesbian, gay, and heterosexual parents. Sex Roles, 67(9-10), 503-515.
6. Social Welfare Department (2020). Adoption Service. https://www.swd.gov.hk/en/index/site_pubsvc/page_family/sub_listofserv/id_adoptionse/​