When courts place the interests of children at the heart of rulings
The recent court judgment involving the adoption of a child by a gay man shows how complex and difficult the exercise of ascertaining what promotes the welfare of the child is, says the author.
While some may have been hopeful that the recent High Court judgment that allowed a gay man to adopt his five-year-old biological son born overseas through a surrogate mother would serve as the catalyst for change for “gay rights”, the court was unequivocal in stating that it was not a “vanguard of social reform”.
Instead, the court clarified that its role was to “expound, and not to expand” the existing public policies.
In fact, the appellant being a gay man was not a factor seen as being favourable and was adjudged to be against existing policies on the traditional family unit.
However, having considered all the circumstances of the case, the court found that the violation of the policy against the formation of same-sex family units was not a factor that was “sufficiently powerful to enable [the court] to ignore the statutory imperative to promote the welfare of the child”.
And therein lies the most important message to be derived from the judgment. The welfare of the child is fundamental to any decision by a court in cases involving children.
While this may appear to be stating the obvious, this maxim is often forgotten in acrimonious battles between parties over a child.
The judgment also showed how complex and difficult the exercise of ascertaining what promotes the welfare of the child is. The court set out at length its analysis of the law, public policy and facts to show the intricacies and difficulties involved in arriving at its decision.
As the High Court stated, the welfare of the child covers his “well-being in the most exhaustive sense of the word” and included his physical, intellectual, psychological, emotional, moral and religious well-being both in the short and long term.
This involves both an assessment of the present facts and a prediction of what the future may hold for the child.
In this particular case, factors such as whether the child would be provided for, the stigma that the child may have to face, whether the proposed parenting arrangement would cause any detriment to the child and the child’s uncertain immigration status were considered in arriving at the decision.
In other cases involving children, various other factors may be considered, including the child’s relationship with his or her parents and in some cases, the child’s own views if he or she is of sufficient age and maturity.
However, the assessment of what weight to give to these factors is not always straightforward. Parties in these situations may prioritise their own interests and mould the facts to paint a picture that would help them win their case without having regard for what is objectively in the best interests of the child.
One difficulty related to the welfare of the child that was discussed in the recent judgement was the issue of surrogacy.
While no weight was eventually placed on appellant’s use of surrogacy, the court noted that the public policy on surrogacy was unclear at present, and further noted the positions for and against surrogacy based on the positions taken by the government and experts, including the avenues for abuse and commercialisation of childbirth.
The court was of the view that the formulation of a policy for or against surrogacy was a matter of some urgency.
Indeed, the lack of a clear policy can be seen as a loophole that may be exploited by some to compel the courts to rule in favour of adoption so that a child will not be left uncared for.
Currently, the existing legislation that mentions surrogacy — the Status of Children (Assisted Reproduction Technology) Act — states that it is not available in Singapore.
Yet the Ministry of Social and Family Development (MSF) has overseen 14 applications for adoption which involved the use of surrogacy overseas.
Ten of these were supported by MSF while the remaining four were still pending. All these cases involved heterosexual couples who were infertile.
Thus, it is evident that the government has been implicitly supportive — or at least facilitative — of parenthood through surrogacy.
This leaves us in a peculiar position of being tolerant of the process if it is done overseas but against it locally.
Enacting legislation to allow such services to be used by Singaporeans in Singapore would not be a radical change or an erosion of existing values but merely an acknowledgment and formalising of processes that MSF already faces and may increasingly face in the future.
This would also allow the government to be in control of the process rather than having to deal with it on an ad hoc basis.
To start with, the process may be made available to those who are medically unable to have children and the laws can then be revised in time to meet the changing needs and views of society.
As the court noted, “Children should be brought into existence with someone to care for them in a safe environment”.
Legislation that clearly defines the types of surrogacy that are allowed, to whom it is applicable to and the costs involved would go a long way in ensuring that the possible issues related to surrogacy are addressed and would also give certainty and stability to children conceived through such means.
In summary, while the forum for such social change may not be the courts, the recent judgement was an important affirmation that the welfare of the child would be at the forefront of the court's decision regardless of the magnitude of other social or related issues.
The High Court confirmed that it will protect children who are often the unrepresented, vulnerable and blameless subjects of such proceedings.
ABOUT THE AUTHOR:
Sudhershen Hariram is a lawyer with Tan Rajah & Cheah specialising in family law.
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