Government policy review will be a mammoth task after gay man’s legal win, experts say
Stage set for government to clarify its position on surrogacy and adoption of children born through such arrangements, whether by singles, heterosexual couples or homosexual couples.
On the surface, it might be seen as legitimising same-sex couples who want to start a family.
However, there is more than meets the eye when it comes to that High Court ruling on Monday (Dec 17), which allowed a gay Singaporean doctor to adopt his biological five-year-old son born through a surrogate mother in the United States.
Lawyers and sociologists who pored through the details of the 145-page judgment said that the case should not be conflated with the debate over Section 377A of the Penal Code, which criminalises consensual sex between adult men.
Rather, it appears to be setting the stage for the Government to clarify and fortify its stance on surrogacy and the adoption of children born through such arrangements, whether by singles, heterosexual couples or homosexual couples.
WHAT THE CASE WAS ABOUT
The doctor and his partner, both aged 46 and Singaporeans, have been living together for 13 years. They approached the Ministry of Social and Family Development (MSF) to ask about adopting a child, but were told it was unlikely to recommend adoption by a homosexual couple.
The doctor then flew to the US where, through in-vitro fertilisation procedures, his sperm fertilised an embryo which was transplanted into the womb of a woman, who carried the foetus to term. He paid US$200,000 (S$275,000) for the services and the baby boy was born in November 2013.
He returned to Singapore with the child, but a district court ruled against him adopting the boy. This led to the appeal in the High Court.
During the appeal, MSF disagreed that adoption would advance the child's welfare. It also said that public policy is a relevant consideration in adoption applications, and the couple “went to great lengths to circumvent the laws of Singapore to start a family unit”.
WHAT WERE THE KEY POINTS OF THE JUDGMENT?
The position MSF took is that it has three separate and independent public policies surrounding the idea of parenthood: One in favour of parenthood within marriage, one against singles embarking on planned and deliberate parenthood through the use of surrogacy, and one against the formation of same-sex family units.
However, the three-judge panel led by Chief Justice Sundaresh Menon found no evidence of the second-mentioned policy above, which discourages singles from taking steps to have children here through any form of assisted reproductive technologies.
And while the judges accepted that the Government has a policy against the formation of same-sex family units, they do not consider it to involve the enforcement of any law that may penalise homosexuals for making such an effort.
They further noted that there is nothing in the law requiring single adoption applicants to be heterosexual.
It is unclear what the Government’s policy against surrogacy is, the judges said, and if there is, what that policy would be.
The MSF, for instance, had backed 10 of 14 adoption bids that involved surrogacy procedures performed overseas between 2008 and 2018, although the provision of such services is illegal here. The accepted cases involved married couples who were infertile.
WHY CLARITY IS IMPORTANT
Sociologist Tan Ern Ser from the National University of Singapore (NUS) said that not clarifying or changing laws surrounding the ethically complex and morally fraught issue of surrogacy — and the linked issue of adoption — could mean that every application would be a long and tedious process.
Given that other couples may be encouraged to seriously consider the surrogacy option now that the landmark case had “opened a door”, he said the policies’ ambiguity will be “to the detriment of the child’s welfare”.
Furthermore, the increasing trend of Singaporean couples turning to overseas clinics to engage surrogacy services does not seem to be abating. These couples tend to turn to backdoor methods to become legal parents of the child they got through such means.
Last year, The Straits Times reported that a facility named British Surrogacy Centre — based in California, United States — had assisted in the birth of at least 15 children that year who were brought back to Singapore. The centre was said to have helped couples pass their surrogate children off as their own, by securing their statuses as legal parents through the Californian court.
Chief Justice Menon prodded the Government to take a stand soon, stating that there is “a case for some urgency” lest the court continues to place significant weight on the child’s welfare in future judgments.
“What should the court do in such a case if no clear policy on surrogacy has been expressed and no governmental action has been taken? Would the court be compelled to take the child as he is, and give at least significant weight to his welfare in determining the proper course for his future?” he asked.
“Indeed, it is difficult to imagine a set of circumstances in which… the welfare of any child would not be gravely compromised by a refusal to make an adoption order granting parental rights to the parties who intend to care for the child,” he added.
WHAT ARE THE ISSUES TO BE UNTANGLED
At the very least, experts told TODAY that clarifications are needed to spell out Singapore’s position on surrogacy done abroad, and the likely status of a biological parent adopting his or her biological child conceived through the arrangement.
With these starting points, safeguards could be set up to ensure that surrogate mothers are not exploited, to draw up the financial framework for surrogacy services, and the rights and responsibilities of the surrogate mother and the couple, they said.
Law professor Thio Li-Ann from NUS said that in working these out, some of the larger issues implicated include the troubling notion of “the commodification of a woman as effectively a baby machine” and whether a child has a right to know both his father and his mother.
Law professor Tan Seow Hon from the Singapore Management University (SMU) mentioned other wider issues to be tackled, such as addressing the question of whether the idea of immorality of certain acts — which appears to be a possible ground of the criminalisation of male homosexual acts in Section 377A — translates to any legal effect on persons in same-sex relations who want to adopt a child.
Associate Professor Tan finds that the court’s present decision “sits uneasily on principle" with Section 377A.
“The court regarded the child’s welfare as the paramount consideration in adoption cases, yet it did not seem to be of the view that parenting by persons in same-sex relations would be detrimental to the welfare of the child,” she said.
What the High Court did was give a hypothetical example of a set of five parents in a polyamorous relationship, which it would regard as injurious to the child’s identity, purpose and morality, in light of prevailing morality, she added.
Law lecturer Benjamin Joshua Ong from SMU noted that the MSF did not contend during the court proceedings that being raised by a homosexual would undermine the child’s welfare by “adversely affecting the child’s sense of identity of morality”.
HOW MIGHT THE GOVERNMENT ACT?
Law professor Eugene Tan from SMU said that while the surrogacy issue now appears to be intertwined with that of “same-sex rights”, the Government will likely endeavour to “disconnect” them and deal with them separately “given the overarching policy considerations of family as the bedrock of society”.
A policy goal would be to properly manage the expectations of couples, whether homosexual or heterosexual, with regard to surrogacy, he added.
He doubts that the Government will draw a distinction between same-sex and heterosexual couples vis-a-vis surrogacy and adoption of a child, nor will the Government be seen to clamp down on surrogacy or outlaw it.
Agreeing, criminal and human rights lawyer Eugene Thuraisingam said that it may be difficult for the Government to legislate to allow heterosexual couples to adopt a child but not a single parent when he or she is living in Singapore with that child, whether as a single or as part of a homosexual partnership.
“That would be discriminatory to the child, and it will not be in the best interest of the child,” he said, framing this as more of an issue on “child’s rights” rather than “same-sex rights”.
“If there is a child already living in Singapore with a Singaporean single parent or as part of a family where the parents are homosexual, it would be very difficult to turn down a request for adoption as that harms the interests of the child,” Mr Thuraisingam added.
“The only way to do it would be to ban the child from Singapore which — apart from being absurd in itself and not in the interests of the child — would lead to some professionals deciding to move out of Singapore and relocate to a more conducive place to raise a child, and that may not be in Singapore’s economic interests.”
Sociology professor Paulin Straughan from SMU similarly said that the hallmark of a sound policy would be one that takes into consideration the welfare and well-being of vulnerable Singaporeans — children in particular — to provide a safe platform for them to lead a normal life.
Law lecturer Benjamin Ong suggested that the Government could form a parliamentary select committee, similar to the one on deliberate online falsehoods, to resolve the complicated issues at hand and aid the law-making process.
The method, which “maximises public participation”, would create an outcome “with the greatest degree of democratic legitimacy”, he said.
Alternatively, the Government — in taking a more careful approach — may express policy views through statements made by Cabinet ministers instead of passing legislation, he said. This would prompt the court to continue to take the approach of exercising its powers to balance public policy against legal rights.
Dr Straughan is of the view that the Government will likely hold back to allow key stakeholders to digest the issues brought up by this “sophisticated” judgment, and keep its ear close to the ground in assessing shifting sentiments, as in the case of the Section 377A debate.
“The unfortunate stance for the Government now is that we are at the crux of social change,” she said.
WILL THERE BE MORE OF SUCH CASES?
Lawyer Genesis Shen from Templars Law said that the Attorney-General may still fight the High Court ruling by applying for leave to appeal to the Court of Appeal, given that “there may be novel points of law (that are) of public interest to be answered by the apex court”.
On the implications of the gay man’s legal victory, he said: “Now that a precedent has been set, we expect that a number of homosexual couples may step forward to follow suit and adopt their own children on the single-parent basis.
“If enough children are successfully raised in unconventional family units, over the years, it would likely change the public perception on the ability of homosexual couples to raise healthy, functioning children,” Mr Shen said.
In a statement issued late on Wednesday, Mr Desmond Lee, Minister for Social and Family Development, said that while there was a lack of evidence to show that the biological father had set out to deliberately violate the relevant public policy, with the publication of the High Court judgment, it may be harder for future applicants doing the same to argue that they did not intentionally set out to do so.
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