The Court of Final Appeal ruled yesterday that the government is justified in charging mainland women married to Hongkongers more to give birth in public hospitals than it charges local women.
Before 2003, obstetric fees for residents and non-residents were subsidised at the same level. But by 2007, the Hospital Authority had raised the fees for non-resident women from HK$20,000 to HK$39,000 for a pre-booked birth and HK$48,000 for one without a booking.
The woman at the centre of the case, Zeng Lixia, was charged HK$48,000 after she gave birth at Princess Margaret Hospital in December 2007. She refused to pay, and her father-in-law, Fok Siu-wing, filed the legal challenge on her behalf.
Zeng was visiting Hong Kong on a 90-day permit and has since become a resident.
Fok argued that, unlike a transient visitor, Zeng, married to a Hong Kong resident, had a substantial connection to the city. The policy, he said, unfairly discriminated against her.
However, the top court ruled against Zeng yesterday, saying it was within reason for the authority and the government to use a woman's residency status for the policy change.
In handing down judgment, Chief Justice Geoffrey Ma Tao-li said that while drawing the line at residency status might not be justifiable in every situation, it was justifiable in this case.
'These decisions were made as part of the government's socioeconomic responsibilities and represent the implementation of policies in these areas,' Ma said. It was 'no part of the court's role to second-guess' the wisdom of these policies and measures, he said.
The fees had been raised to deal with problems that existed and were not increased to unreasonably high levels, Ma said.
Secretary for Food and Health Dr York Chow Yat-ngok who welcomed the ruling, said: 'We will discuss with private hospitals their quota [for mainland pregnant women giving birth in Hong Kong] in the coming month. Mainland wives of Hongkongers and other mainland women should be differentiated.'
Dr Alan Lau Kwok-lam, chairman of the Private Hospitals Association, said it would be difficult for private hospitals to differentiate the two types of mothers unless the government finds a way to do it.
Tsang Koon-wing, an organiser with the Mainland-Hong Kong Family Rights Association, said the group and Fok were disappointed by the ruling. 'The court is giving recognition to the government's policy changes,' Tsang said. 'The policy discriminates against the spouses of residents and has led to them being regarded as second-class citizens.'
Tsang said Zeng's case had dealt with the fees that public hospitals charged the mainland spouses of residents but not the wider question of their right to bed spaces in maternity wards, and the government needed to ensure there was provision for them. The case was heard by Ma, Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Ribeiro, Mr Justice Barry Mortimer and Lord Justice Millett.