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In a landmark case, Singapore’s High Court overturned an earlier ruling that denied two fathers the adoption of a biological son conceived through surrogacy in the United States.
Chief Justice Sundaresh Menon ruled the adoption should go through.
He said that the concern not to violate public policy against formation of same-sex family units is not powerful enough to ignore the imperative to promote the welfare of the child. Adoption would be for the child’s welfare “essentially because it would increase the child’s prospects of acquiring Singapore citizenship and securing long-term residence in Singapore.”
The case began in 2014 and in 2017 the lower court had rejected the man’s application to adopt his biological son. The rejection was based on the man’s awareness that the medical procedures – such as in-vitro fertilisation – undertaken to have his own child would not have been possible in Singapore. He cannot then “come to the Courts of the very same jurisdiction to have the acts condoned”, ruled District Judge Shobha Nair last December.
The judge said the son would be provided for, with or without an adoption order. The boy had been rejected for citizenship and at the time the fathers applied for his adoption, he was on a dependent’s pass that had to be renewed every six months.
The sperm donor and father, a 46-year old pathologist had chosen to enable the birth of the child through in-vitro and surrogate procedures in the United States. In Singapore however, assisted reproduction can only be provided to a married woman with the consent of her spouse. Although Singapore law does not explicitly prohibit surrogacy, the Ministry of Health prohibits healthcare institutions from providing assisted reproduction services to carry out surrogacy.
The lower courts have stated that the man sought to have the courts of Singapore allow the adoption of the child by pointing to the principle of the ‘welfare of the child.” In reality, the legal bid to adopt the child “an attempt to obtain a desired result – that is, formalising a 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”, the lower court added.
The High Court was clear that this case was not to be acknowledged as a legal endorsement of what the man and his partner set out to do.
CJ Menon noted the “difficult interplay between law and public policy” in this case, saying: “The law is asked to provide the answer to a dilemma that challenges the mores of a largely conservative society, and this arises partly because science has devised a new paradigm for procreation.”
“The court’s role is to apply the law”, said the Chief Justice. “It is not to determine social policy in our country or to be a player in what has sometimes been seen as the ‘culture wars’ that assail society.”
In deciding the case, the court considered Singapore’s public policy on same-sex families as well as any policy violation should an adoption order be made. It concluded that neither reason 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 chief justice wrote.
Does this mean that same-sex partners may use surrogacy to start a family unit?
Although this case does make it clear that the interests of the child is first and foremost, it would be risky for same-sex couples to attempt the same method. The courts have explicitly said they do not endorse the means and it cannot be denied that public policy against the formation of same-sex families does exist and should there be strong public opinion, there is opportunity for law makers to act.
However for now, we are at least in the knowledge that the welfare of the child is paramount.
