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).
Failure of initial application
In December 2017, a 45-year old gay Singaporean man, who prefers to be known by the pseudonym of "James", applied to the courts to adopt his 4-year old son "Noel" (also a pseudonym to protect the child's identity) whom he had fathered through a surrogacy arrangement in the United States.
Facts of case
James, a medical doctor and pathologist, had been in a long-term relationship since 1998 with his same-sex partner "Shawn" (also a pseudonym), both ethnic Chinese and 45 years of age in 2017. They both lived together in a 1,450 sq ft apartment in central Singapore. Desiring a child, they approached the Ministry of Social and Family Development (MSF) to inquire about the possibility of adopting one locally but were told that the Ministry was unlikely to recommend the adoption of children by a homosexual couple.
Seeking an alternative route to their goal, James and Shawn travelled to the US and engaged the services of a surrogate mother, known only as M, whom they paid under a Gestational Surrogacy Agreement (GSA). She was to carry and deliver a baby conceived through in vitro fertilisation (IVF) and then to hand the baby over to them. James’ sperm was used to fertilise the ovum of an anonymous donor and the resulting embryo was transplanted into the uterus of M who offered to carry it to term for US$200,000 (S$275,000). In November 2013, M gave birth to Noel. M later relinquished her parental rights over the child whom the couple then brought to Singapore. Noel was granted a Long-Term Visit Pass to remain in the country until April 2015.
As the biological father of the child, James was allowed to bring Noel back to Singapore to live with him. Hoping to enable his son to remain in Singapore permanently, James applied on Noel’s behalf for Singapore citizenship but was rejected. He subsequently approached the Ministry of Social and Family Development (MSF) for advice and was told that the prospects of his son’s remaining here might be enhanced if he adopted Noel and thereby established a legal nexus with him. In December 2014, James filed an application to adopt his son under the Adoption of Children Act (Cap 4, 2012 Rev Ed) and Noel was granted a Dependant's Pass for the duration of the adoption proceedings. James deposed that he had made the application to improve Noel’s chances of obtaining Singapore citizenship or permanent residency and to “formalise” his legal status as Noel’s father. The surrogate mother M filed her consent to this application in January 2015.
The Director of Social Welfare of the MSF was then appointed Noel’s Guardian-in-Adoption. An extensive 3-year investigation by the MSF followed, resulting in a report recommending against allowing the adoption on the basis that an adoption would be “contrary to public policy”, given that “same-sex marriage is not recognised under Singapore law” and the appellant was “seeking to form a family unit with his male partner”. James had started adoption proceedings to "legitimise his relationship with the child", the court heard.
Grounds for rejection
In judgment grounds released on Tuesday, 26 December 2017, judge Shoba Nair pointed out that as a medical doctor, James the plaintiff was fully aware that Singapore did not condone surrogacy. Also, the use of IVF was confined to married couples under Singapore law.
Having carried out the procedure in the US, James now wanted the Singapore courts to sanction the adoption by pointing to the "welfare of the child" principle, the judge said.
She added that James was "acutely aware that the medical procedures undertaken to have a child of his own would not have been possible in Singapore".
"He cannot then come to the courts of the very same jurisdiction to have the acts condoned."
James' lawyers Koh Tien Hua, Ivan Cheong and Shaun Ho denied that he was seeking to adopt his biological son so as to form a lawfully recognised family unit with his partner - in effect a gay family.
Justice Shoba was not swayed by the arguments. "This application is in reality an attempt to obtain a desired result - that is, formalising the parent-child relationship in order to obtain certain benefits such as citizenship rights, by walking through the back door of the system when the front door was firmly shut."
Then, there was the issue of a large sum of money being paid to the surrogate mother.
"The very idea of a biological father seeking to adopt a child after paying a surrogate mother a sum of US$200,000 to carry his child to term reflects the very thing the Adoption Act seeks to prevent - the use of money to encourage the movement of life from one hand to another," said Judge Shoba.
The welfare of the child was not the issue either in this case, as he would continue to get a roof over his head, food on his table and a good support system - with or without an adoption order.
"The applicant is the only parent he knows. The child will continue to be in his care," the judge explained.
The applicant also retained his rights to the child as the biological father, added Judge Nair.
And the only argument supporting the issue of the child's welfare was that he might obtain Singapore citizenship if the adoption went through. "There is no evidence, however, that he will in fact obtain citizenship," the judge said.
She added: "The immigration authorities act independently and will issue (their) own decision on the matter."
Judge Shoba also pointed out that the child was not stateless. He was an American citizen. In any case, she said, "this court cannot by an adoption order enable Singapore citizenship".
Nor was she inclined to allow the application on the grounds that the applicant may have to move overseas, if his child was not granted Singapore citizenship. "The reason for the birth of the child in the US was precisely because it was not possible in Singapore," she said.
The judge added that an adoption order in this case would serve no purpose other than to ensure that the interests of the adult are not compromised.
"It does not further the interest of the four-year-old child. A four-year-old child will thrive anywhere in the hands of loving people."
The judge also made it clear that the court was not ruling on what a family unit ought to be like or on what acceptable patterns of behaviour were.
"This court is obligated to interpret the law and not make it. The law mirrors the morality and wishes of the majority of Singaporeans... this case has very little to do with the propriety and/or effectiveness of same-gender parenting."
The man appealed the court's decision.
Success of appeal
In a landmark reversal of its ruling the previous year, the High Court approved James' application to adopt his biological son on appeal.
In judgment grounds released on Monday, 17 December 2018, 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 is “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”.
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 2018 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 is 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 policy making 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 has no doubt that the Government is “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 was 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:
- 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?
"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."
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.
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,. 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.
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."
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."
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- Agence France-Presse, "Singapore court stops gay doctor’s bid to adopt US-born surrogate son", South China Morning Post, 28 December 2017.
- 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.
- KC Vijayan, "Landmark High Court case allows Singaporean gay dad to adopt surrogate son", The Straits Times, 17 December 2018.
- Kok Xinghui, "Singapore allows gay couple to adopt their surrogate son in landmark ruling", South China Morning Post, 17 December 2018.
- 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.
- Kok Xinghui, "‘A huge load off our shoulders’: gay Singapore couple open up after landmark adoption case", South China Morning Post, 22 December 2018.
- 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.
- 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.
- Kok Xinghui, "Why some members of Singapore’s LGBT community prefer life in the shadows", South China Morning Post, 6 February 2019.
- 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.
- KC Vijayan, "Court rejects bid by gay man to make partner guardian of his two surrogate children", The Straits Times, 17 February 2020.
This article was written by Roy Tan.