High Court allows gay father to adopt surrogate son, December 2018

In December 2017, a gay Singaporean man applied to the courts to adopt his 4-year old son which he fathered through a surrogacy arrangement in the United States which he paid US$200,000 for.

However, district judge Shobha Nair rejected his bid. The Adoption of Children Act "did not envisage the specific situation this case presents", the court said.

The man, a doctor and pathologist, had been in a gay relationship with a partner here in Singapore for 13 years. They approached the Ministry of Social and Family Development (MSF) to inquire about the possibility of adopting a child, but were told that the ministry was unlikely to recommend adoption of children by a homosexual couple.

The man then travelled to the US where his sperm was used to impregnate the egg of an anonymous donor, using in-vitro fertilisation (IVF) procedures.

The embryo was then transplanted into the womb of another woman, who offered to carry it to term for US$200,000.

As the biological father of the child, the Singaporean was allowed to bring the child back here to live with him. He started adoption proceedings to "legitimise his relationship with the child", the court heard.

In judgment grounds released on Tuesday, 26 December 2017, judge Shoba Nair pointed out that as a medical doctor, the man was fully aware that Singapore did not condone surrogacy, in which a woman agrees to carry to term a child who is not her own, usually for a fee. Also, the use of IVF was confined to married couples under Singapore law.

Having carried out the procedure in the US, the man now wanted Singapore courts to sanction the adoption by pointing to the "welfare of the child" principle, the judge said.

She said the applicant, being a doctor, was "acutely aware that the medical procedures undertaken to have a child of his own would not have been possible in Singapore".

"He cannot then come to the courts of the very same jurisdiction to have the acts condoned."

The applicant's lawyers Koh Tien Hua, Ivan Cheong and Shaun Ho denied that he was seeking to adopt the child so as to form a lawfully recognised family unit with his partner - in effect a gay family.

Judge Nair was not swayed by the arguments. "This application is in reality an attempt to obtain a desired result - that is, formalising the 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."

Then, there was the issue of a large sum of money being paid to the surrogate mother.

"The very idea of a biological father seeking to adopt a child after paying a surrogate mother a sum of US$200,000 to carry his child to term reflects the very thing the Adoption Act seeks to prevent - the use of money to encourage the movement of life from one hand to another," said Judge Nair.

The welfare of the child was not the issue either in this case, as he would continue to get a roof over his head, food on his table and a good support system - with or without an adoption order.

"The applicant is the only parent he knows. The child will continue to be in his care," the judge said.

The applicant also retained his rights to the child as the biological father, said Judge Nair.

And the only argument supporting the issue of the child's welfare was that he might obtain Singapore citizenship if the adoption went through. "There is no evidence, however, that he will in fact obtain citizenship," the judge said.

She added: "The immigration authorities act independently and will issue (their) own decision on the matter."

Judge Nair also pointed out that the child was not stateless. He was an American citizen. In any case, she said, "this court cannot by an adoption order enable Singapore citizenship".

Nor was she inclined to allow the application on the grounds that the applicant may have to move overseas, if his child was not granted Singapore citizenship. "The reason for the birth of the child in the US was precisely because it was not possible in Singapore," she said.

The judge added that an adoption order in this case would serve no purpose other than to ensure that the interests of the adult are not compromised.

"It does not further the interest of the four-year-old child. A four-year-old child will thrive anywhere in the hands of loving people."

The judge also made it clear that the court was not ruling on what a family unit ought to be like or on what acceptable patterns of behaviour were.

"This court is obligated to interpret the law and not make it. The law mirrors the morality and wishes of the majority of Singaporeans... this case has very little to do with the propriety and/or effectiveness of same-gender parenting."

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This article was written by Roy Tan.