MSF has backed adoption bids that involved surrogacy; High Court and lawyers say it’s time to study the issue

MSF has backed adoption bids that involved surrogacy; High Court and lawyers say it’s time to study the issue

Source: TODAY
Date Published: 18 Dec 2018
Author: Alfred Chua

This is the first adoption application by an individual who has openly declared himself to be homosexual and living with his same-sex partner, according to the MSF.

Lawyers welcomed the landmark decision by the High Court on Monday (Dec 17) allowing a gay Singaporean doctor to adopt his five-year-old biological son born through a surrogate mother in the United States.

They noted that the High Court recognised there is no public policy against planned or deliberate parenthood by singles through the use of artificial reproduction technology or surrogacy, and said that more cases involving surrogacy could be brought before the courts in Singapore.

This is the first adoption application by an individual who has openly declared himself to be homosexual and living with his same-sex partner, according to the Ministry of Social and Family Development (MSF).

Responding to the ruling, the MSF stressed that all adoptions are decided by the court on a case-by-case basis.

It said that it respects the court’s decision and will study the judgment carefully and consider if relevant policies and legislation need to be “reviewed and further strengthened”.

The MSF opposed the doctor’s appeal to adopt the boy because it would be contrary to public policy against the formation of same-sex family units, among other reasons, said a spokesperson. And the High Court recognised that the Government does not support the formation of same-sex family units, as well as the existence of the policies encouraging parenthood within marriage, the ministry noted.

Mr Koh Tien Hua, one of the lawyers who represented the Singaporean doctor, said that the High Court’s decision — delivered by Chief Justice Sundaresh Menon, who ruled together with Judge of Appeal Judith Prakash and Judge Debbie Ong — recognises the important role of the family in the child’s life and found that an adoption order would be best for the boy’s welfare.

“The decision is important because family is important no matter the orientation of the parent, and family is the cradle of society,” said Mr Koh.

Mr Ivan Cheong, also part of the doctor’s legal team, said the court recognised that it is ultimately about the child’s best interests. It allowed the adoption despite some public policy considerations against it being made out, he noted.


The High Court, as well as family lawyers, also said that it is time for Singapore to study laws on surrogacy.

In fact, the MSF has dealt with adoption applications that involved the use of surrogacy, the judgment revealed.

Between 2008 and this year, it oversaw 14 such applications. The authorities supported 10 applications — made jointly by married couples who were infertile — and the remaining four are pending investigation as of July this year, CJ Menon said.

Payments were made in the surrogacy agreements.

“We have 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,” said CJ Menon. “But it is perhaps not out of place for us to observe that there is a case for some urgency in this regard.”

Ms Gloria James, lead lawyer at GJC Law, said that it could be “time for Singapore to look at the issue of surrogacy law”.

“This decision is welcomed (and) the Government should be prepared for a new area of law to be considered,” she said.

She is aware of Singaporeans who are unable to conceive and who head to places like Bangkok to engage a surrogate mother to carry and give birth to a child. They then return with the child but put their names on the birth certificate to “avoid the adoption issue”, she said.

In a surrogacy arrangement, the egg and sperm can come from one or both parents who commissioned the surrogacy, or from a third party.

The High Court noted that should a similar case as the doctor’s surface in future, the parentage of the child would likely be determined under the Status of Children (Assisted Reproduction Technology) Act, which does not seem to permit the parents who commissioned the surrogacy to displace the birth mother and her husband or partner as the legal parents of the child.

This would probably cause the commissioning parents to try to circumvent restrictions by applying to adopt the child. It would require a significant adaptation of the adoption regime, CJ Menon said.

The MSF said that surrogacy is not allowed in Singapore, but the High Court noted that the use of such services locally or abroad has not been criminalised.

“It would not be an understatement to say that legitimising surrogacy would involve a radical reconsideration of established paradigms of family intimacy, parenthood, gender relations, sexuality and the creation of life,” CJ Menon acknowledged.

Besides issues of human dignity and autonomy, there are also concerns over how the birth mother can be adequately protected so that poor or uneducated women are not exploited or coerced, he noted.

Said family and civil lawyer Nicholas Leow: “Family forms have changed so much already... it serves no purpose if the law is unable to adapt.”

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