The challenge to a Hospital Authority policy under which mainland women with Hong Kong husbands are charged more to give birth than local women will be fought out in the highest court. The Court of Final Appeal yesterday agreed to hear the appeal, which arose from an unsuccessful judicial review, on February 6 and 7 next year. At issue is the authority's decision in 2007 to raise 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. Fok Siu-wing, 72, whose daughter-in-law was charged the higher amount, argues that the policy is unconstitutional because it discriminates against mainland women with Hong Kong husbands. His judicial review was rejected in December 2008 and an appeal failed in May last year. After the Court of Appeal refused him leave in May this year to take the case to the Court of Final Appeal, he applied directly to the top court. Yesterday, Fok's lawyers argued that mainland women with Hong Kong husbands were distinctly different from transit mothers - mainland women who had no connections with Hong Kong but came just to give birth - and should not be treated like visitors under the policy. Fok launched the judicial review after daughter-in-law Zeng Lixia was charged HK$48,000 by a public hospital in December 2007. The family refused to pay the bill which grew to HK$150,000 as interest accumulated. The Hospital Authority waived the fee after the Court of Appeal urged it to reconsider the case while upholding the fee policy. Russell Coleman SC, for the government, said yesterday that the issue had become purely 'academic' after the authority introduced new measures in April this year and Fok's daughter-in-law's fees had since been waived. But Dennis Chang SC, for Fok, said permission should be granted because the case involved great general and public importance and affected at least 75 cases. Granting leave to appeal, Acting Chief Justice Patrick Chan Siu-oi said the court would decide whether a blanket exclusion of mainland spouses of Hong Kong men from subsidised obstetric services was discriminatory and unconstitutional; whether the mothers were different from others who did not hold Hong Kong identity cards; and whether the 2007 policy to increase fees for mainland mothers was contrary to the affordability principle under the Hospital Authority Ordinance or whether it was unreasonable. The Hospital Authority would not comment on the case as judicial proceedings had started. Asked outside court why he persisted even though his daughter-in-law's fee was waived, Fok said: 'I am standing up for all the mainland mums who are married to Hong Kong husbands.' He was confident that he would win the case.