In A First, Singapore HC Allows Gay Man To Adopt Biological Son Born Through Surrogacy [Read Judgment]

In a landmark decision, the Singapore High Court on Monday allowed a homosexual man to adopt his biological son born through surrogacy.

The judgment was delivered by a bench comprising Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Justice Debbie Ong.

The appellant, a 46 year old pathologist, had challenged a 2017 ruling, wherein it was held that the man cannot adopt the boy because he was born by a surrogate in the United States through in-vitro fertilization — a process restricted to heterosexual married couples in Singapore.

The appellant had been in a relationship with another man, both being Singaporean citizens, for the past 13 years. While initially, the couple decided to adopt a child, they were advised against it by adoption agencies, who informed them that they would not be allowed to adopt in Singapore because of their sexual orientation.

The couple then took recourse to the possibility of conceiving a child biologically related to one of them through assisted reproductive technology (ART). While they did bring the child to Singapore, the child was not granted citizenship by the government, but was granted permission to remain in the country till April, 2015 under a Long-Term Visit Pass.

The appellant was then advised by the Ministry of Social and Family Development (MSF) that he could choose to adopt his biological child to establish a legal nexus with him. An application was therefore filed by him for such adoption.

However, after examining the case for nearly three years, a Senior Child Welfare Officer with the MSF recommended against allowing the adoption on the ground that it would be “contrary to public policy”. In her view, this was because “[s]ame-sex marriage is not recognised under Singapore law” and the appellant is “seeking to form a family unit with his male partner”.

This was despite the fact that the officer noted that the appellant and her partner appeared to have the financial means to meet the child’s basic needs and that the two of them are committed to parenting a child together. Nevertheless, the couple’s adoption application was dismissed in December last year.

Issues Raised

The court framed the following four broad issues for its consideration:

1. Whether making an adoption order would be “for the welfare of the infant”?

The court ruled that an adoption order 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.

“This consideration carries significant weight, given its bearing on the Child’s sense of security and emotional well-being, as well as the long-term stability of his care arrangements,” it observed.

The court further asserted that the approval would result in his “legitimisation”, which would in turn “have some positive social, psychological and emotional impact on him due to the social acceptance attached to being a legitimate child”.

• Whether there is any basis for taking public policy considerations into account in the present case, and if so, what that basis is?

The court held that there is both, a statutory basis and a common law basis, to take public policy considerations into account in arriving at its decision in this case.

• If public policy may be taken into account, how should it be done?

The court concluded that there is a public policy in favour of parenthood within marriage and a public policy against the formation of same-sex family units. It acknowledged that allowing adoption in this case would violate the latter policy.

It, however, opined that none of such considerations outweigh the concern for giving paramount consideration to the welfare of a child. It explained, “However, having regard to all the circumstances before us, we think it seems to us that neither of these reasons is are 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. 

That statutory imperative is not only intrinsically weighty, having emanated from the Legislature, but is also supported by the evidence, which shows that the welfare of the Child, which is the value opposed by the countervailing public policy consideration in this case, would be materially advanced by our making an adoption order. With not insignificant difficulty, therefore, we conclude that an adoption order ought to be made in this case.”

• Whether the payment made by the appellant to the surrogate mother is unlawful?

Examining precedents, the court pointed out that sanction can be granted for such payment, if it is found that the payment in question was made for the purpose of adopting the child with a sincere desire to benefit and promote the welfare of the child in question. It then went on to sanction the payment made by the appellant to the surrogate mother.

Clarifications issued

The court, however, clarified that its ruling is a decision on the particular facts of this case, and should not be taken as an endorsement of what the appellant and his partner set out to do.

“As we have mentioned at [209] above, our decision was reached through an application of the law as we understood it to be, and not on the basis of our sympathies for the position of either party,” it observed.

The court further asserted that the child welfare officer has failed to articulate herself properly on the government’s position on the issue, and opined that the decision may or may not have been different had the position in this regard been different.

The appeal was, therefore, allowed, asserting that the adoption order ought to be made in the case at hand.