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Before 2022, adoption used to be an option for gay and lesbian couples who yearned for a child but did not want to go through the travails of pregnancy, failed medically assisted insemination or surrogacy. The passage of the Adoption of Children Act 2022 by Parliament on 9 May that year made it illegal for same-sex couples to adopt children or employ surrogates, with hefty penalties of a fine of up to $10000 and/or a prison sentence of up to 3 years for first-time offenders.

A survey conducted by the Institute of Policy Studies (IPS) from late 2013 to early 2014 revealed that Singapore remained a largely conservative society with regard to certain social issues such as extramarital sex, living with a partner before marriage, divorce and gambling. When it came to LGBT issues, 78.2% felt that sexual relations between two adults of the same sex was always or almost always wrong[2],[3]. Regarding adoption of children by gay couples, respondents who found it always or almost always wrong fell to 61.1%. 72.9% found gay marriage always or in certain cases wrong while 15.7% thought it was not. It surprised many in the LGBT community to discover that Singaporeans were less opposed to gay adoption and gay marriage than to gay sex.

Local adoption[]

Local adoption refers to the adoption of children in Singapore. Prior to 2022, LGBT persons could have adopted as single parents. While it was possible for unmarried individuals to adopt a child, they usually faced stricter examination of their suitability by the relevant authorities. Singles could adopt as long as they met the following requirements stipulated by the Ministry of Social and Family Development (MSF) in accordance with the Adoption of Children Act (ACA)[4].

  • Residency Status – They must be residents of Singapore, that is. citizens or permanent residents, or holders of an Employment Pass, Dependent's Pass or any other pass which the Family Court deemed as residents of the country.
  • Age – They must be at least 25 years of age and at least 21 years older than the child to be adopted according to Section 4(1) of the ACA. The maximum age gap between the adopter and the child must not be more than 50 years, with the adopter being older than the child. There was also a "soft" limit to the maximum age of the adopter at around 40 to 45 years as the MSF considered that beyond this, the candidate may not be suited to adopting a child.
  • Marital status and gender – If they were single males, they were not allowed to adopt girls, unless there were special circumstances to justify the adoption.
  • Home study report – If they wished to adopt a foreign child or a child from the MSF, they were required to apply for a home study report. The latter ensured that prospective adopter would be suitable and ready to adopt before the child was uprooted from its country. Only after a favourable home study report was obtained would the candidate be able to identify a child to adopt. According to the official blog of the Singapore Adoption Agency, the home study was concerned with the living arrangements of the adoptee with a view to the stability of the long-term set up. This meant that they would want to learn about the adopter’s health condition, parenting style and whether the individual had the financial wherewithal to raise a child. After a favourable home study report had been obtained, the adopter could either identify a child on his/her own or go through the MSF. Subsequently, the adopter would need to get a notarised consent of the child’s biological parents. If a notarised consent could not be procured, they could apply to the courts to have the consent requirement dispensed with. The home study could be done by a few different adoption agencies, some more LGBT-friendly than others. Developments in the late 2000s revealed that some agencies would ask if the prospective adopter was gay. If the candidate replied affirmatively, the agency may have asked to interview the partner. One male gay couple got their adoption attempt rejected after the other half was interviewed. Before the passage of the Adoption of Children Act 2022, the law was not clear on same-sex adoption and the MSF's stand on whether gay people could or could not adopt was not stated publicly and categorically. Some gay couples did manage to adopt but that was in the mid-2000s. Would-be gay adopters were cautioned to be aware that when the home study or interview was being carried out, they may not want to be 100% truthful about their disclosures.
  • Pre-adoption briefing – they were required to attend a compulsory pre-adoption briefing (PAB) before they applied for a home study or commenced the legal proceedings for adoption.

The adoption application must finally be submitted to and approved by the MSF. The estimated cost of adoption was between S$8,000 to S$20,000, as at the early 2010s.

Overseas adoption[]

Overseas adoption refers to the adoption of a child from a country other than Singapore. Policies regarding child adoption differ from country to country.

Most applications made in Singapore to adopt a child from another country required home study approval by the MSF and prospective adopters still had to go through home study interviews. However, this was only applicable to Singaporeans. If one partner of a same-sex couple was a foreigner, the latter could get the approval from his home country to adopt a child there. If the partner was a Singapore PR, he could opt to have the home study done in his country of origin.

The process entailed the following steps:

  • Collation of relevant documents - The adopter first had to obtain all the identification documents of the child, including its birth certificate and passport.
  • Application for Dependent's Pass - The adopter would then be required to apply for a Dependent's Pass (DP) from the MSF so that the foreign child could be considered a resident of Singapore.
  • Itemised breakdown of costs - The adopter would then have to prepare an itemised breakdown of costs involved (if any) in obtaining the child to submit to the Singapore Family Court. However, they had to note that Section 11 of ACA restricted payment in consideration of the adoption.
  • Application to Court for Adoption Order - The adopter then had to file an application to the Family Court for the adoption. The court would then require the adopter to seek consent from the Director of Social Welfare from the MSF to act as the Guardian-In-Adoption for the child during the adoption process. This was in accordance with Section 10(3) of the ACA. Once consent had been obtained, the adopter would have to submit it to the Family Court. The latter would then appoint the Director of Social Welfare as the Guardian-In-Adoption.
  • MSF investigation - The Guardian-In-Adoption will appoint a Child Welfare Officer (CWO) from the MSF to conduct the necessary interviews regarding the adopter's family and the child's status and circumstances. After the investigation, MSF would prepare an affidavit based on the investigation for the Family Court.
  • Adoption Order hearing - the adopter would then have to apply for a date of hearing in which he/she (or his/her lawyer) had to be present. After the Adoption Order was granted, the Family Court would instruct the Registry of Births and Deaths, Immigration and Checkpoints Authority (ICA) on the issuance of a new Birth Certificate for the child. It must be noted that Section 7(9) of the ACA clarified that an adoption order shall not by itself affect the citizenship of the adopted child.
  • Citizenship application - the adopter had to apply to the ICA separately if he/she intended to apply for Singapore Citizenship for the child. If the Adoption Order was granted, they had to submit a copy of the child's new Singapore Birth Certificate to the MSF for a refund of the security deposit.

The estimated cost of the above procedures for overseas adoption was S$8,000 to 20,000.

Once approval for the adoption was obtained from the MSF, the adopter could approach any number of agencies to source a child overseas on his/her behalf. Some agencies are better than others. Most adopted children in Singapore come from overseas. Not many Singaporean children are offered for adoption. Nevertheless, the waiting list is quite long. Agencies will arrange for a child from Malaysia, Indonesia or one of the ASEAN countries. Some Singaporean couples were picky. They wanted a Chinese baby and desired that its parents were tall and educated. They rarely considered that if the parents were tall, educated and privileged, they would not want to offer the child for adoption in the first placle. Many children in Malaysia are born to underprivileged parents who cannpot afford to bring them up. Some may be mixed-race babies in need of a home. Same-sex couples were advised to approach agencies sourcing from Malaysia or Indonesia.

The cost was S$15,000 for a Chinese baby - the cuter the more expensive. It was like the child trafficking system in Singapore and it was legal. The agency could show adopters all the pictures and the prices, eg. $20K or $30K. If the adopters did not want them, there were others in the queue who did. Couples were cautioned not to patronise agencies who were so mercenary.

Citizenship of child[]

When a couple's assets are overseas, the laws of that particular country will apply to their assets and their children. US laws protect them better so theey prefer to have a child in the US. You can get a second parent adoption done in America. The child will be a UK or US citizen if born in the respective country. Both spouses will be legal parents of the child and they can have the adoption papers drawn up there. The laws of that country will apply. If you have a child and civil union or marriage in the UK, you are both recognised as legal parents of the child. When you both come back to Singapore, only one of you will be recognised as the child's parent because Singapore does not recognise same-sex parents. In a custody battle, the case can be brought to the courts of the UK because the legal papers were drawn up that jurisdiction. This is legal in the UK and the US but not in Australia. You cannot have both lesbian parents' names on the child's birth certificate even if the child was born in the US because if parents are not residents of US. To get the requisite paperwork done, the couple has to reside there for 6 months and a home study has to be undertaken to prepare for adoption. It is well worth it if you have the time and money. The advantages of having both lesbian parents' names on birth certificate is that in a custody fight, both parents have legal standing, not in Singapore, but you can bring up the case in the relevant overseas court. Also both parents have equal rights to child, even the one who did not give birth to it. It is important to have equality in the relationship and family.

If a couple has more than one child and even though both spouses are married and the biological mother's or one spouse's name is on the child's birth certificate, couples sometimes decide to adopt all their children because they want security for their family.

For some spouses, it is a form of insurance so that the other spouse cannot just take the kids and leave the other childless. Another advantage is that, at least, one spouse will not be stuck raising the kids on his/her own if the couple breaks up. Couples residing in the US are extremely fortunate to be able to do this.

For same-sex couples in Singapore, this is not an option. There are local couples who are raising kids together where one party has no legal rights to the kids. If anything should happen to the relationship, the parent who is not on the birth certificate is basically left in the lurch. It is important to realise that while it would be nice to for lesbian/gay couples with children to stay together forever because they have been through so much to have children, it is unfortunately not always the case. People change and if a relationship no longer works, it is pointless to stay together just for the children. Needless to say, this applies to everyone, whether gay or straight.

It is also relevant to LGBTQ couples who have no children but who have gone overseas to get married. Presently, getting married is the easy part. It is when the couple wants a divorce that it gets complicated. It tends to cost quite a bit of money and there are sometimes residency issues that need to be taken into consideration.

There are families who have gone through the process and come out better on the other side. Learning to co-parent with someone who is no longer one's spouse is difficult, but it can be achieved. The problem comes when both parties cannot come to an agreement, especially if one side has the upper hand - whether it be due to legal rights over the children, financial support or citizenship status.

As long as the LGBTQ community does not have equal rights to education, housing, marriage, reproduction, it is something worth fighting for.

A child of a Singaporean father only gains citizenship if he is legally married to the mother. A child born to a Singaporean mother is automatically a Singaporean.

Surrogacy[]

Surrogacy is the agreement of a woman to carry a pregnancy for the intended parents. It is a fairly controversial procedure in which a gestational mother is either inseminated or implanted with a fertilised embryo, and then carries it to term. Depending on how the procedure is performed, the surrogate may or may not be the biological mother of the child. The surrogate usually gives up rights to the child after it is born in favour of the person/s who commissioned the surrogacy. The process is legally fraught in many countries in the past decade has come under severe scrutiny in developing countries whose women often turn to surrogacy due to economic contingency. Several nations have even outlawed it.

Before surrogacy for same-sex couples was prohibited by the Adoption of Children Act 2022, those couples who opted for the surrogacy route were cautioned to seek legal advice on all aspects of the law, including the laws of the country which the surrogate was from, prior to proceeding with it.

In Singapore, under the LTCAR, medical practitioners are not allowed to carry out surrogacy procedures for anyone, even married heterosexual couples, so the policy is not discriminatory against gay couples. However, for artificial insemination and other assisted reproductive procedures, there is no bar against using these services in other countries.

There are two main types of surrogacy, gestational surrogacy and traditional surrogacy.

Gestational surrogacy[]

In gestational surrogacy, the pregnancy results from the transfer of an embryo created by in-vitro fertilisation (IVF), in a manner such that the resulting child is genetically unrelated to the surrogate. This type of surrogacy requires an egg donor.

Traditional surrogacy[]

In traditional surrogacy, the surrogate is impregnated naturally or artificially, but the resulting child is genetically related to the surrogate. In this case, the surrogate is the egg donor.

Legal status[]

Surrogacy is not legal in Singapore but can be done in other countries including Thailand and the United States.

Thailand[]

Until 2015, Thailand was Asia’s surrogate country of choice after India closed its doors to gay couples in January 2013. She boasted a lucrative, yet largely unregulated, international surrogacy trade which was particularly popular among gay couples.

But in February 2015, legislation was passed banning foreigners from using Thai surrogate mothers after a series of high-profile scandals[5].

The move was spurred by an Australian couple who were accused in the spring of 2014 of abandoning a baby with Down's syndrome carried by a Thai surrogate while taking his healthy twin sister.

A second high profile surrogacy controversy erupted when nine babies fathered by a Japanese man using Thai surrogate mothers were discovered in a Bangkok apartment.

Bangkok had a booming surrogacy industry with 35% of intending parents being gay men. However, there were some important laws that need to be noted. The most important law was that the surrogate mother must have her name on the child’s birth certificate. She was also the legal guardian, as a child born out of wedlock is deemed to be the legitimate child of the mother. The father had no parental rights, even if he was listed on the birth certificate. Therefore it was important to ensure the surrogate mother agreed to relinquish all rights to the child after birth.

The average cost of surrogacy in Bangkok was US$40,000, cheaper by half as compared to the United States and the proximity to Singapore made it a more attractive choice for Singaporeans.

Note:

  • One had to make sure that the surrogate entered into a contract outlining her intent to allow the child to be adopted by the biological sperm donor – the father listed on the birth certificate.
  • One had to be prepared to be in Thailand for around 3 to 4 weeks after the birth of the child as that was how long it took for the child to get a birth certificate and a passport.

USA[]

The United States’ lenient laws towards surrogacy have made the country an ideal place for gay couples to find a woman to carry their child.

Across the US, laws vary by state, with six states criminalising paid surrogacy, including New York, Michigan, New Mexico, Arizona, Utah and Washington. The surrogacy-friendly states are California, Illinois, Arkansas and Massachusetts. These states allow for paid surrogacies and some have agencies that specialise in locating surrogate mothers for gay couples. These agencies will also assist in preparing paperwork so that both fathers can have their names on the birth cert and the surrogate mother’s rights are correctly terminated.

The cost of surrogacy in United States starts from US$100,000. Taking into consideration airfare, accommodation and other miscellaneous expenses, couples must be prepared to spend between US$100,000 to US$200,000.

Note:

  • Same-sex couples were advised to engage a reputable agency, preferably one recommended by someone who had used their services before. This would help to prevent unnecessary complications.

Landmark cases[]

Successful adoption of surrogate child in Singapore[]

Main article: High Court allows gay father to adopt son conceived via surrogacy, December 2018

On Monday, 17 December 2018, the High Court issued a landmark ruling on LGBT rights when it approved, on appeal, a gay Singaporean man's bid to adopt his biological son, whom he fathered in the United States through a surrogate mother for US$200,000 (SGD$275,000).

Photo taken at the Botanic Gardens on 22 December 2018, showing "James" (right) with his partner "Shawn" and biological son "Noel", whom he was legally allowed to adopt in a landmark court case. Photo credit: The Straits Times[1]


The 46-year-old pathologist father had brought the Pennsylvania-born boy, then five years of age, to Singapore, but his bid to adopt him was rejected by a district judge in 2017. In the judgment grounds released, the three-judge appeal court made clear that its move to reverse the decision was based “on the particular facts of the case and should not be taken as an endorsement of what the appellant and his partner set out to do”. “Our decision was reached through an application of the law as we understood it to be, and not on the basis of our sympathies for the position of either party,” wrote Chief Justice Sundaresh Menon on behalf of the court, which also included Judge of Appeal Judith Prakash and Justice Debbie Ong. The court said it reached its decision “with not insignificant difficulty”. “On balance, it seems appropriate that we attribute significant weight to the concern not to violate public policy against the formation of same-sex family units on account of its rational connection to the present dispute and the degree to which this policy would be violated should an adoption order be made.” But the court found that, based on all the case’s circumstances, neither of these reasons was “sufficiently powerful to enable us to ignore the statutory imperative to promote the welfare of the child, and, indeed, to regard his welfare as first and paramount”.

The biological father and his partner, both Singaporeans aged 46, had cohabited for 13 years. They first approached the Ministry of Social and Family Development (MSF) to inquire about adopting a child, but were told it was unlikely to recommend adoption by a homosexual couple. The man then travelled to the US where his sperm was used to impregnate the egg of an anonymous donor, using in-vitro fertilisation (IVF) procedures. The embryo was transplanted into the womb of a woman who carried it to term for US$200,000. As the biological father, the Singaporean was allowed to bring the child back here to live with him. He started adoption proceedings to legitimise his relationship with the child but his application was turned down by a district judge last year.

This led to the appeal in the High Court (Family Division) where Senior Counsel Harpreet Singh Nehal and lawyer Jordan Tan, as briefed by lawyers Koh Tien Hua, Ivan Cheong and Shaun Ho from Eversheds Harry Elias, argued his appeal in July and the judgment was reserved. Kristy Tan, Germaine Boey and Uni Khng from the Attorney-General's Chambers, in representing the Guardian-in-Adoption appointed by the MSF, argued that the concern to promote the child’s welfare may be outweighed by other considerations, and objected that the adoption would advance the child’s welfare. Adding that public policy was a relevant concern in adoption applications, they said the application should be dismissed, pointing out the present situation is entirely of the couple’s own making “because they went to great lengths to circumvent the laws of Singapore to start a family unit”.

However, the Court found that while there is a public policy in favour of parenthood within the marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made. The Court accepted that an adoption order would enhance the child’s prospect of remaining in Singapore, as he would be able to apply for Singapore citizenship. If successful, this would stabilise the child’s care arrangements and give him a sense of security. It reiterated the importance of the term “first and paramount” when considering the child’s welfare.

The court added that the MSF Guardian-in-Adoption who assessed the case “did not rely on any public policy against surrogacy, nor did she consider herself able to state clearly what the Government’s position on that issue is”. Chief Justice Sundaresh wrote, “In the circumstances, given the still evolving nature of the Government’s position in the light of the complexities of the substantive issue, we find that the court certainly should not articulate a public policy against surrogacy and give it weight in the present case. “To do so would be to fill a space in deliberative social policymaking that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into.” The Court had no doubt that the Government was “studying the position carefully and will in time determine its policy stance and take the appropriate legislative and enforcement action”, he added.

Reacting to the judgment, lawyer Koh Tien Hua, who acted in the case, said this is the first time surrogacy and gay adoption had been canvassed in court. “This is important because family is important no matter the orientation of the parent, and family is the cradle of society,” he said. “This judgment recognises the important role of the family in the child’s life and found that an adoption order would be for the child’s welfare.”

Government's reaction to court ruling[]

About one month later, on Monday, 14 January 2019, three PAP MPs raised Parliamentary questions directed at the Minister for Social and Family Development (MSF) regarding the High Court's decision to grant James' appeal to adopt his biological son in the interest of the child's welfare[6]:

  • Prof Fatimah Lateef (MP for Marine Parade GRC): What is the Ministry's position on the recent High Court ruling to award adoption to a single man in a same-sex relationship, of his biological child born through an overseas surrogacy?
  • Seah Kian Peng (MP for Marine Parade GRC): What implications are there with regard to other Government policies including education and housing that need to be reviewed given the recent High Court ruling to award adoption to a single man in a same-sex relationship, of his biological son conceived through a surrogacy done overseas?
  • Christopher de Souza (MP for Holland-Bukit Timah GRC): Will the MSF (i) ban commercial surrogacy in Singapore (ii) prohibit agreements to pay for surrogacy in Singapore or overseas and (iii) disallow adoptions arising from commercial surrogacy whether such surrogacy occurs in Singapore or overseas?

MSF Minister Desmond Lee.

Minister for Social and Family Development, Desmond Lee, replied:

"Let me begin by recapping the facts of the case that is the subject of these Parliamentary Questions, so as to provide context to my response. The applicant in the case is a male Singaporean in a long-term relationship with another man. When the two men inquired about adopting a child, they were advised that MSF was unlikely to recommend the adoption of children by parties who were in a same-sex relationship. Both of them then went to the United States for commercial surrogacy, and paid a total of about $200,000 USD to a private company in the United States. Under the terms of the surrogacy contract, the arrangement was for the surrogate mother to carry the baby to term, deliver him, and then give up her rights over him.The child was born in 2013, and was handed over to the applicant and his partner. The child is a US citizen, and has been brought up in Singapore by the two of them in the same household.

The applicant later applied to Court to adopt the boy. In December 2017, the Family Justice Court ruled against the adoption. The applicant appealed to the High Court. In December 2018, the High Court, which comprised 3 judges, allowed the adoption to proceed. Following the ruling, the applicant and his partner gave media interviews, reported locally and abroad, describing the challenges that same-sex parents faced when wanting to conceive and raise their own children in Singapore, and shared about the process they went through to start a family in Singapore via overseas surrogacy. Understandably, the High Court's decision to grant the appeal has evoked a diverse range of emotions and reactions amongst Singaporeans, and raised questions about its implications.

These fall broadly into two categories:

  • First, around the definition of marriage, family, and future conceptions of family in society. Some Singaporeans are concerned whether this Court ruling sets a precedent to allow homosexual couples to legally adopt children, and in so doing mainstreams same-sex parent households in Singapore. Others, including LGBT activists, say that this case is a step towards the recognition and legalisation of same-sex relationships.
  • Second, on commercial surrogacy: Some have asked whether this ruling legitimises commercial surrogacy carried out overseas, especially in light of the complex ethical questions surrounding this practice.

Members' questions today reflect this range of views and reactions. Indeed, these emerging issues and divergent attitudes have become increasingly salient in our society. LGBT persons have a place in Singapore society, and are entitled to their own private lives. Just like other Singaporeans, they have access to opportunities and social support such as education, employment, and healthcare, and should, like all Singaporeans, not be subject to prejudice and discrimination. However, we must be mindful that a push for rights and entitlements which broader society is not ready for, or able to accept, will provoke a pushback, and can be very socially divisive. A push to use legislation or the courts to precipitate social change involving issues as deeply-held and personal as this, polarise society.

While we recognise that there are increasingly diverse forms of families and households in Singapore, the prevailing social norm in our society is still that of a man and woman marrying, and having and bringing up children within a stable family unit. This is also the family structure that the Government encourages. Most of us would agree that it is ideal for children to grow up in families anchored by strong and stable marriages. This is reflected in the differentiation we maintain in policies and benefits to encourage and support parenthood within marriage. It follows from this that the Government does not encourage planned and deliberate single parenthood as a lifestyle choice. Specifically, we do not support the use of Assisted Reproduction Technology (ART) or surrogacy by singles to conceive children, for the purpose of forming single unwed parent households. Hence, In-Vitro Fertilisation or other Assisted Reproduction Procedures at licensed AR institutions are available in Singapore only to married couples who experience difficulties in natural conception.

Over time, social attitudes have evolved to greater acceptance of homosexuals. The Government's policy is not to intrude or interfere with the private lives of Singaporeans, including homosexuals, and their relationships or partnerships. However, we do not support the formation of family units with children and homosexual parents, through institutions and processes such as adoption. Therefore, MSF did not support the appeal by the homosexual couple to adopt the child they had conceived through surrogacy, after they had been informed that the Government would not support the application to adopt a child because this would have been contrary to public policy. In raising this objection, MSF had carefully considered the welfare of the child. Two important aspects were considered. First, the child is not stateless, but is a US citizen. Second, the child remains with the father and will be cared for. The father has full parental rights and responsibilities, even if the adoption is not granted. In fact, the Women's Charter obliges parents to provide for their children, regardless of the children's legitimacy status.

The High Court stated that they had reached their decision in this case "with not insignificant difficulty". The Court affirmed the public policy against the formation of same-sex family units, and recognised that granting the adoption would violate it. This was, however, weighed against the interest of the child's welfare. Based on the specific facts of this case, the Court allowed the appeal to adopt the child. We respect and accept the Court's decision. Following the Court's judgment, MSF is reviewing our adoption laws and practices to see how they should be strengthened to better reflect public policy, which in turn is a reflection of the values of our broad society today. For instance, while the welfare of the child should always be a very important consideration in adoption proceedings, we are looking at whether the Adoption of Children Act needs to be amended so that an appropriate balance can be struck when important public policy considerations are involved.

We are also studying the issue of surrogacy carefully. This is a complex issue with ethical, social, health and legal implications for all parties involved. For commercial surrogacy in particular, concerns have been raised about the exploitation of women and commodification of children. These issues are not trivial, and warrant careful study and discussion. Persons who are considering surrogacy should take this into account from the outset while making their decision, as such factors could have a significant impact on the child. Today, surrogacy cannot be carried out in Singapore at any licensed healthcare institution that provides assisted reproduction services. Parents who have gone overseas for surrogacy and who come back and apply for adoption of their surrogate children will have their applications assessed on a case-by-case basis. They will also be scrutinised by the Courts during the adoption hearings. Prior to this case, the Courts have granted adoption of 10 children born abroad as a result of surrogacy. These children were all born to married couples applying jointly to adopt their child, who had resorted to surrogacy because the couples were infertile.

While an adoption order serves to make a child legitimate under the law, it does not on its own guarantee benefits and privileges such as citizenship, education or housing. Access to housing will continue to be determined by prevailing criteria, in line with public policy supporting parenthood within marriage. All Singaporean children, regardless of their legitimacy status, will receive Government benefits that support their growth and development, including healthcare and education benefits."

Public's reaction to court ruling[]

Some Singaporeans celebrated the judgment as a mark of progress for the gay community, while others pointed out that it went against what constituted a family in Singapore. Yet others felt the laws surrounding surrogacy were unclear, and wondered if James had exploited a loophole to become a father. Singapore, which was trying to boost its low fertility rate, offered generous incentives for couples to have babies but in vitro fertilisation was allowed only for married couples and surrogacy services were banned and not available for anyone, straight or gay. Those who had gone abroad for it and returned home to apply for adoption of their surrogate children would have their applications assessed on a case-by-case basis. To date, the courts had granted the adoption of 10 surrogate children to married couples who had turned to surrogacy because of infertility issues.

Court rejects bid to make partner guardian of two surrogate children[]

On Monday, 17 February 2020, it was reported in The Straits Times that James, who was allowed to legally adopt his biological son in 2018, had failed in a new bid to have his partner, Shawn, named guardian of his son, as well as a girl he fathered in the United States through another surrogacy arrangement. The High Court also rejected his bid to have Shawn awarded joint custody, care and control of the children.

Justice Debbie Ong.

In a case that raised important questions of law, the High Court ruled that simply saying James' application was made for the welfare of the child was insufficient. In judgment grounds issued on 14 February 2020, Justice Debbie Ong said the case raised the key issue of whether and, if so, when a fit parent may voluntarily delegate or share parental responsibility over his child with a non-parent through the appointment of the non-parent as a guardian. James had married Shawn, who was named the defendant in the guardianship matter, in 2018 in the US, where same-sex marriage was legal.

In early 2019, James begot a daughter through a second surrogacy arrangement in California. He legally adopted the girl in the US and moved back to Singapore. She then lived with the couple and their son in Singapore. With his daughter's birth in 2019, James then applied for his partner to be appointed a guardian of both children under the Guardianship of Infants Act. He also applied for both of them to have joint custody and shared care and control of the children. Shawn consented to the moves.

Through his lawyers Koh Tien Hua and Shaun Ho from Eversheds Harry Elias, James said he and his partner provided care for both children with a domestic helper. He added that Shawn had resigned from his job as a marketing executive to care for the children, but pointed out that his husband faced or would face difficulties in caring for the children as he was neither their biological or legal parent. Among other things, Shawn was unable to provide consent for medical procedures on behalf of the children and if the children were ill when he was away, Shawn would not be able to make decisions concerning medical treatment. His husband, who was unrepresented, added that as a couple, they collaborated in caring for the children. Adding him as parent, he said, was a "very natural thing to do".

Justice Ong accepted the child's welfare was the court's paramount consideration under the Guardianship of Infants Act. The law referred to the children's well-being in the most exhaustive sense of that word, including physical, intellectual and emotional well-being. But the judge also pointed out that under the Women's Charter, parental responsibility was not a responsibility that could be voluntarily delegated, unless the parent gave the child up for adoption. In such a case, that parent was no longer the parent of the child. Instead, the new adoptive parents had the parental responsibility. "In fact, severe breaches of parental responsibility by parents may even constitute offences under the Children and Young Persons Act," said Justice Ong.

The judge noted the orders sought by James went further than giving Shawn authority to make day-to-day decisions for the children as they neither suggest or seek any restrictions on the partner's authority. "When the guardian's authority is not limited, the appointment of a guardian over children results in the guardian stepping into the shoes of a parent to exercise the authority that the parent naturally possesses over the child," said Justice Ong. This included the delegation of long-term decision-making authority to that guardian, even if the parent of the child still retains responsibility and authority as a parent, she added.

Justice Ong found that on the factual matrix of the case, "the court has no jurisdiction and power to appoint a guardian and it is not in the children's welfare to appoint a guardian". James' husband had argued the application was to enable him to provide consent for medical treatment for the children during emergencies when the plaintiff was not present. But Justice Ong noted that however necessary or urgent, life-saving medical treatment will not be withheld, and where the need is not too urgent, a parent's consent can be obtained through various means of modern communication.

"I also remarked at the hearing that it is not uncommon for parents to entrust their children to caregivers, like grandparents, when they are overseas. These caregivers need not be clothed with the heavy legal instrument of a guardianship appointment. Thus, I do not find it necessary for the defendant to be appointed guardian in order to care for the children when the plaintiff is not present."

The purpose of the Guardianship of Infants Act, she added, was to enable the courts to make orders for the welfare of the children without intervening unnecessarily in the parental responsibility of a parent. The judge noted James and Shawn had not had an incident so far that raised decision-making difficulties. "It appears that the plaintiff's application was driven by convenience, not necessity. Convenience alone is not a reason for a friend, cousin or grandmother to be appointed a guardian. Thus the reasons provided for the appointment of the defendant as a guardian were insufficient for the court to make such an order, even if there was the jurisdiction and power to do so," she said.

The judge also rejected the application for joint custody, care and control, noting that James and Shawn had been caring for the children without any order for guardianship, custody or care and control. "Indeed, on the plaintiff's own evidence, the children were thriving under their care, an assertion which I saw no reason to doubt. I therefore did not see why it was necessary for the Court to make the orders sought by the plaintiff," said Justice Ong.

Adoption of Children Act revamped to prevent gay couples from adopting and using surrogates[]

Bill first tabled, 4 April 2022[]


On Monday, 4 April 2022, Minister for Social and Family Development Masagos Zulkifli introduced a Bill in Parliament, seeking to repeal the Adoption of Children Act 1939 and re-enact a new Adoption of Children Act 2022[7],[8]. The last substantial amendment to the current Act was in 1985. The proposed law would also define the meaning of "suitability to adopt". Authorised adoption agencies, the Guardian-in-Adoption who ensures the adopted child's best interests, and the court must consider factors such as the public policy against the formation of same-sex families and the policy against parenthood through surrogacy or assisted reproduction technology. The offences would have extra-territorial effect, meaning that if the offence were committed by a person outside Singapore, he or she may be dealt with as if the offence were committed here[9].

New Adoption of Children Act passed by Parliament, 9 May 2022[]

On Monday, 9 May 2022, during the Second Reading of the Bill to pass a revamped Adoption of Children Act, Minister for Social and Family Development, Masagos Zulkifli, said that couples wanting to adopt a child must be married under laws recognised by Singapore, and marriages that took place overseas must be legally recognised in Singapore. He added: "This means that only a man and a woman married to each other can apply together. This is because Singapore's marriage law only allows a man and woman to marry each other."[10]


The new Act governing child adoption were passed by Parliament the same day and aimed to provide more clarity and tighten rules to ensure adoptions were in line with Singapore public policy. Masagos emphasised: " The Government has also stated that it is a matter of public policy that we do not support the formation of same-sex family units which the High Court has affirmed in December 2018 in UKM and Attorney-General. We reiterated in January 2019 that we do not support the formation of same-sex families through processes such as adoption. These public policies will be taken into consideration when determining suitability to adopt."

Regarding enforcement, Masagos explained: "Under clause 60, it will be an offence for parties involved in adoption proceedings or in the adoption sector to fail to report suspected offences under the Bill to the GIA (Guardian-In-Adoption) or an officer authorised by the GIA. As the majority of applications in Singapore involve inter-country adoptions, the proposed offences will have extra-territorial effect under clause 50. This means that if an offence is committed by a person outside Singapore, the person may be dealt with as if the offence was committed within Singapore. The penalties for first-time offenders of an offence in the Bill will range from a fine of up to $5000 or $10000 and/or imprisonment for a term up to 12 months or 3 years. The penalties are higher for repeat offenders and offences targeted at commercial adoption agencies. To enforce these new offences, clause 61 to 63 provide the GIA and authorised officers with powers of enforcement, and clause 64 and 65 clarify that it would be an offence to obstruct enforcement or provide false or misleading information to officers performing enforcement functions such as an officer authorised by the GIA."

See also[]

References[]

  • K. C. Vijayan, "Singapore court rejects bid by gay man to adopt child he fathered through surrogacy", The Straits Times, 27 December 2017[11].
  • Agence France-Presse, "Singapore court stops gay doctor’s bid to adopt US-born surrogate son", South China Morning Post, 28 December 2017[12].
  • Kok Xinghui, "Where to go, what to do? Family in Singapore’s gay surrogacy adoption case face life in limbo", South China Morning Post, 9 January 2018[13].
  • KC Vijayan, "Landmark High Court case allows Singaporean gay dad to adopt surrogate son", The Straits Times, 17 December 2018[14].
  • Kok Xinghui, "Singapore allows gay couple to adopt their surrogate son in landmark ruling", South China Morning Post, 17 December 2018[15].
  • Rahimah Rashith, "Gay parents seeking to adopt their kids may find it harder to prove they did not intend to violate policy against same-sex families: Desmond Lee", The Straits Times, 19 December 2018[16].
  • Kok Xinghui, "‘A huge load off our shoulders’: gay Singapore couple open up after landmark adoption case", South China Morning Post, 22 December 2018[17].
  • Rachel Au-Yong, "Family life takes shape for gay couple after adoption ruling", The Straits Times, 23 December 2018[Family life takes shape for gay couple after adoption ruling].
  • Rachel Au-Yong, "Parliament: Authorities looking at adoption laws and surrogacy, do not support gay families, says Minister Desmond Lee", The Straits Times, 14 January 2019[18].
  • Reuters, "Singapore’s gay adoption case may lead to tighter laws to prevent ‘formation of same-sex family units’", South China Morning Post, 14 January 2019[19].
  • Kok Xinghui, "Why some members of Singapore’s LGBT community prefer life in the shadows", South China Morning Post, 6 February 2019[20].
  • KC Vijayan, "Gay man's adoption of biological child: Chief Justice says it is not the courts' business to formulate policy", The Straits Times, 12 March 2019[21].
  • KC Vijayan, "Court rejects bid by gay man to make partner guardian of his two surrogate children", The Straits Times, 17 February 2020[22].
  • Theresa Tan, "New law tightens eligibility criteria for adoption", The Straits Times, 9 May 2022[23].
  • https://www.marketing-interactive.com/prudential-same-sex-couple-asia
  • https://www.straitstimes.com/opinion/forum/forum-key-focus-of-adoption-should-always-be-childs-welfare

Acknowledgements[]

This article was written by Roy Tan.

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