Adopt, Don’t Shop: Adoption and Surrogacy Laws in Singapore Give Birth to Uncertainty
A gay Singaporean man travelled to the United States and paid US$200,000 (S$268,000) to father a boy through surrogacy arrangements. As the biological father of the child, 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”, the court heard. A district judge has rejected his bid to adopt the child – now four years old. The judge had pointed out that as a doctor, the man was fully aware that Singapore does not condone surrogacy. Also, the use of IVF is confined to married couples, under Singapore law.
The welfare of the child was also not the issue in this case, as he would continue to have a roof over his head, food on his table and a good support system – with or without an adoption order.
This case raises key legal issues that we aim to answer in the following paragraphs.
What is surrogacy?
Surrogacy is where a woman is artificially impregnated and carries the child to term, whether for monetary consideration or not, with the intention that the child is to be that of some other person or couple.
While there are no laws that explicitly prohibit surrogacy in Singapore, guidelines set out by the Ministry of Health state that licenced assisted reproduction centres are not allowed to carry out surrogacy arrangements. Commercial and even altruistic surrogacy is thus not allowed in the local context.
What is adoption?
Adoption is a legal process in the Family Justice Courts, governed under the Adoption of Children Act (ACA), where parental rights over a child are conferred to the applicants, whom one or both are not the natural parents of the child.
Under section 3 of the ACA, the court can make an adoption order authorising singles or married couples to adopt an infant.
When an adoption order is passed by the court, the child’s legal ties with the biological parents will be severed and the adoptive parents will assume all rights, obligations and responsibilities in the care and education of the child according to Section 7(i) of the ACA.
However, under section 11 of the Adoption of Children Act, it is illegal for the biological parents or adoptive parents or guardians to receive any payment or reward for the adoption of the infant, except with the sanction of the court. The sum of US$200,000 paid to the surrogate mother to carry and deliver the child reflects the very thing the Act seeks to prohibit – the buying of a child.
What are the criteria for adoption?
Residency status: You and your spouse must be residents in Singapore to adopt.
Age: You and your spouse must be at least 25 years old and at least 21 years older than the child to be adopted. If you or your spouse is under 25 years old and/or less than 21 years older than the child, the adoption may be allowed if you or your spouse and the child are related by blood, or if there are other special circumstances justifying the adoption, according Section 4(2) a(i)(ii) of the ACA.
The maximum age gap between adopter and child: Both you and your spouse should not be more than 50 years older than the child.
Marital status: If you are a single male, you are not allowed to adopt a girl, unless there are special circumstances to justify the adoption, according to section 4(3) of the ACA. If you are married and intend to adopt alone, you must obtain the consent of your spouse, according to Section 4(5) of the ACA.
Home Study Report: If you wish to adopt a foreign child, you are required to apply for a Home Study Report.
Pre-adoption Briefing: You and your spouse should attend a compulsory Pre-Adoption Briefing (PAB) before you apply for a home study or begin the legal proceedings on adoption.
Endorsement from your home country (for non-Singapore Citizens who would like to adopt a foreign child): You must obtain endorsement from your home country through your embassy or High Commission and submit a letter of support, duly completed and endorsed by the relevant authority of your country before commencing home study in Singapore.
What is the law on guardianship?
There are two different types of legal guardians: a natural guardian (i.e. a parent) or an appointed guardian.
Under section 5 of the Guardianship of Infants Act, the court may, upon application by either parent or guardian, make orders as it thinks fit regarding the custody, the right of access, payment of sum towards the maintenance of the infant and may alter, vary or discharge such orders.
Other examples where one can obtain guardianship of a child include the right of a surviving parent, a guardian appointed by a deed or will, or a person who applies under the Guardianship of Infants Act.
The responsibilities and powers of a guardian are expressed in sections 16 and 17 of the Guardianship of Infants Act.
What is a legal guardian and what is the difference between adoption and guardianship?
Legal guardians are responsible for the welfare and safety of the child. In basic terms, it allows the guardian to legally take care of the child and make certain decisions regarding the child’s well-being, like attending parent-teacher conferences. If a guardian or the child dies, however, there is no statutory right of inheritance, and a guardian does not have the ongoing financial obligations to the child (i.e., child support) that a biological/adoptive parent has.
What is the law on assisted reproduction technology in Singapore?
Currently, the assisted reproductive methods allowed in Singapore are
(a) The placing of an embryo or of sperm and eggs in a woman; or
(b) Artificial insemination which includes in-vitro fertilisation, zygote intra-fallopian transfer and intra-cytoplasmic sperm injection.
Surrogacy is not condoned or encouraged in Singapore.
What is the Status of Children (Assisted Reproduction Technology) Act?
It is an Act relating to the legal status of children conceived and born through assisted reproduction technology and for matters connected therewith.
Who may be the legal father of the child conceived through assisted conception?
Under section 7 of the Status of Children (Assisted Reproduction Technology) Act, the husband or de facto partner of the gestational mother at the time she underwent the fertilisation procedure where the child was conceived shall be treated as the father of the child if:
(a) The sperm of the husband brought about the child
(b) The sperm of the husband was not used but he consented to the fertilisation procedure
(c) The sperm of the husband was not used, he did not consent to the fertilisation procedure but he through a course of conduct accepted the child as a child of their marriage
If the father-child relationship is not recognised under the Act, he may take steps to legally adopt the child.
What we can do to help?
At I.R.B Law, we understand that deciding whether to adopt a child or go through guardianship applications can be a stressful time for you. Should you be in a situation where you may need our assistance, speak to one of our experienced lawyers. At I.R.B. Law LLP our consultation is typically free. So do not hesitate to contact us at +65 6589 8913 or email us at Hello@irblaw.com.sg