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

On Monday, 17 December 2018, the High Court issued a landmark ruling on LGBT rights when it approved, on appeal, a gay Singaporean man's bid to adopt his biological son, whom he fathered in the United States through a surrogate mother for US$200,000 (SGD$275,000).



=Failure of initial application=

In December 2017, a 45-year old gay Singaporean man, who prefers to be known by the pseudonym of "James", applied to the courts to adopt his 4-year old son "Noel" (also a pseudonym to protect the child's identity) whom he had fathered through a surrogacy arrangement in the United States.

However, district judge Shobha Nair rejected his bid, saying that the Adoption of Children Act (ACA) "did not envisage the specific situation this case presents."

Facts of case
James, a medical doctor and pathologist, had been in a long-term relationship since 1998 with his same-sex partner "Shawn" (also a pseudonym), both ethnic Chinese and 45 years of age in 2017. They both lived together in a 1,450 sq ft apartment in central Singapore. Desiring a child, they approached the Ministry of Social and Family Development (MSF) to inquire about the possibility of adopting one locally but were told that the Ministry was unlikely to recommend the adoption of children by a homosexual couple.



Seeking an alternative route to their goal, James and Shawn travelled to the US and engaged the services of a surrogate mother, known only as M, whom they paid under a Gestational Surrogacy Agreement (GSA). She was to carry and deliver a baby conceived through in vitro fertilisation (IVF) and then to hand the baby over to them. James’ sperm was used to fertilise the ovum of an anonymous donor and the resulting embryo was transplanted into the uterus of M who offered to carry it to term for US$200,000 (S$275,000). In November 2013, M gave birth to Noel. M later relinquished her parental rights over the child whom the couple then brought to Singapore. Noel was granted a Long-Term Visit Pass to remain in the country until April 2015.

As the biological father of the child, James was allowed to bring Noel back to Singapore to live with him. Hoping to enable his son to remain in Singapore permanently, James applied on Noel’s behalf for Singapore citizenship but was rejected. He subsequently approached the Ministry of Social and Family Development (MSF) for advice and was told that the prospects of his son’s remaining here might be enhanced if he adopted Noel and thereby established a legal nexus with him. In December 2014, James filed an application to adopt his son under the Adoption of Children Act (Cap 4, 2012 Rev Ed) and Noel was granted a Dependant's Pass for the duration of the adoption proceedings. James deposed that he had made the application to improve Noel’s chances of obtaining Singapore citizenship or permanent residency and to “formalise” his legal status as Noel’s father. The surrogate mother M filed her consent to this application in January 2015.

The Director of Social Welfare of the MSF was then appointed Noel’s Guardian-in-Adoption. An extensive 3-year investigation by the MSF followed, resulting in a report recommending against allowing the adoption on the basis that an adoption would be “contrary to public policy”, given that “same-sex marriage is not recognised under Singapore law” and the appellant was “seeking to form a family unit with his male partner”. James had started adoption proceedings to "legitimise his relationship with the child", the court heard.

Grounds for rejection
In judgment grounds released on Tuesday, 26 December 2017, judge Shoba Nair pointed out that as a medical doctor, James the plaintiff was fully aware that Singapore did not condone surrogacy. Also, the use of IVF was confined to married couples under Singapore law.

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

She added that James 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."

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

 Justice Shoba 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 Shoba.

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 explained.

The applicant also retained his rights to the child as the biological father, added 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 Shoba 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."

The man appealed the court's decision.

=Success of appeal=

In a landmark reversal of its ruling the previous year, the High Court approved James' application to adopt his biological son on appeal.

In judgment grounds released on Monday, 17 December 2018, the three-judge appeal court made clear that its move to reverse the decision was based “on the particular facts of the case and should not be taken as an endorsement of what the appellant and his partner set out to do”.

“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,” wrote Chief Justice Sundaresh Menon on behalf of the court, which also included Judge of Appeal Judith Prakash and Justice Debbie Ong.

The court said it reached its decision “with not insignificant difficulty”.

“On balance, it seems appropriate that we attribute significant weight to the concern not to violate public policy against the formation of same-sex family units on account of its rational connection to the present dispute and the degree to which this policy would be violated should an adoption order be made.”

But the court found that, based on all the case’s circumstances, neither of these reasons is “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”.



This led to the appeal in the High Court (Family Division) where Senior Counsel Harpreet Singh Nehal and lawyer Jordan Tan, as briefed by lawyers Koh Tien Hua, Ivan Cheong and Shaun Ho from Eversheds Harry Elias, argued his appeal in July 2018 and the judgment was reserved.

Kristy Tan, Germaine Boey and Uni Khng from the Attorney-General’s Chambers, in representing the Guardian-in-Adoption appointed by the MSF, argued that the concern to promote the child’s welfare may be outweighed by other considerations, and objected that the adoption would advance the child’s welfare.

Adding that public policy is a relevant concern in adoption applications, they said the application should be dismissed, pointing out the present situation is entirely of the couple’s own making “because they went to great lengths to circumvent the laws of Singapore to start a family unit”.

However, the Court found that while there is a public policy in favour of parenthood within the marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made.

The Court accepted that an adoption order would enhance the child’s prospect of remaining in Singapore, as he would be able to apply for Singapore citizenship. If successful, this would stabilise the child’s care arrangements and give him a sense of security.

It reiterated the importance of the term “first and paramount” when considering the child’s welfare.

The court added that the MSF Guardian-in-Adoption who assessed the case “did not rely on any public policy against surrogacy, nor did she consider herself able to state clearly what the Government’s position on that issue is”.

Chief Justice Sundaresh wrote, “In the circumstances, given the still evolving nature of the Government’s position in the light of the complexities of the substantive issue, we find that the court certainly should not articulate a public policy against surrogacy and give it weight in the present case.

“To do so would be to fill a space in deliberative social policy making that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into.”

The Court has 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”, he added.

Reacting to the judgment, lawyer Koh Tien Hua, who acted in the case, said this was the first time surrogacy and gay adoption had been canvassed in court.

“This is important because family is important no matter the orientation of the parent, and family is the cradle of society,” he said. “This judgment recognises the important role of the family in the child’s life and found that an adoption order would be for the child’s welfare.”

=Government's reaction to court ruling=

About one month later, on Monday, 14 January 2019, three PAP MPs - Christopher de Souza (Holland-Bukit Timah GRC), Dr Fatimah Lateef (Marine Parade GRC) and Seah Kian Peng (Marine Parade GRC) - raised questions in Parliament about the High Court's decision to grant James' appeal to adopt his biological son in the interest of the child's welfare.

Minister for Social and Family Development, Desmond Lee, replied: “Following the court judgment, MSF (Ministry of Social and Family Development) is reviewing our adoption laws and practices to see how they should be strengthened to better reflect public policy” and also “the formation of family units with children of homosexual parents through institutions and processes such as adoption”. The authorities would be looking into the issue of surrogacy as well. He stressed the Government's position on same-sex parenthood, reiterating it did not support the formation of families by gay parents. “While we recognise that there are increasingly diverse forms of families...the prevailing norm of society is still that of a man and a woman,” he explained. However, he added that government policy was not to intrude or interfere with the private lives of Singaporeans, including homosexuals, and they were entitled to private lives of their choosing.

Some Singaporeans celebrated the ruling as a mark of progress for the gay community, while others pointed out that it went against what constituted a family in Singapore. Yet others felt the laws surrounding surrogacy were unclear, and wondered if James had exploited a loophole to become a father. Singapore, which was trying to boost its low fertility rate, offered generous incentives for couples to have babies but in vitro fertilisation was allowed only for married couples and surrogacy services were banned and not available for anyone, straight or gay. Those who had gone abroad for it and returned home to apply for adoption of their surrogate children would have their applications assessed on a case-by-case basis. To date, the courts had granted the adoption of 10 surrogate children to married couples who had turned to surrogacy because of infertility issues. 

=Court rejects bid to make partner guardian of two surrogate children=

On Monday, 17 February 2020, it was reported in The Straits Times that James, who was allowed to legally adopt his biological son in 2018, had failed in a new bid to have his partner, Shawn, named guardian of his son, as well as a girl he fathered in the United States through another surrogacy arrangement. The High Court also rejected his bid to have Shawn awarded joint custody, care and control of the children. In a case that raised important questions of law, the High Court ruled that simply saying James' application was made for the welfare of the child was insufficient. In judgment grounds issued on 14 February 2020, Justice Debbie Ong said the case raised the key issue of whether and, if so, when a fit parent may voluntarily delegate or share parental responsibility over his child with a non-parent through the appointment of the non-parent as a guardian. James had married Shawn, who was named the defendant in the guardianship matter, in 2018 in the US, where same-sex marriage was legal.

In early 2019, James begot a daughter through a second surrogacy arrangement in California. He legally adopted the girl in the US and moved back to Singapore. She then lived with the couple and their son in Singapore. With his daughter's birth in 2019, James then applied for his partner to be appointed a guardian of both children under the Guardianship of Infants Act. He also applied for both of them to have joint custody and shared care and control of the children. Shawn consented to the moves.

Through his lawyers Koh Tien Hua and Shaun Ho from Eversheds Harry Elias, James said he and his partner provided care for both children with a domestic helper. He added that Shawn had resigned from his job as a marketing executive to care for the children, but pointed out that his husband faced or would face difficulties in caring for the children as he was neither their biological or legal parent. Among other things, Shawn was unable to provide consent for medical procedures on behalf of the children and if the children were ill when he was away, Shawn would not be able to make decisions concerning medical treatment. His husband, who was unrepresented, added that as a couple, they collaborated in caring for the children. Adding him as parent, he said, was a "very natural thing to do".

Justice Ong accepted the child's welfare was the court's paramount consideration under the Guardianship of Infants Act. The law referred to the children's well-being in the most exhaustive sense of that word, including physical, intellectual and emotional well-being. But the judge also pointed out that under the Women's Charter, parental responsibility was not a responsibility that could be voluntarily delegated, unless the parent gave the child up for adoption. In such a case, that parent was no longer the parent of the child. Instead, the new adoptive parents had the parental responsibility. "In fact, severe breaches of parental responsibility by parents may even constitute offences under the Children and Young Persons Act," said Justice Ong.

The judge noted the orders sought by James went further than giving Shawn authority to make day-to-day decisions for the children as they neither suggest or seek any restrictions on the partner's authority. "When the guardian's authority is not limited, the appointment of a guardian over children results in the guardian stepping into the shoes of a parent to exercise the authority that the parent naturally possesses over the child," said Justice Ong. This included the delegation of long-term decision-making authority to that guardian, even if the parent of the child still retains responsibility and authority as a parent, she added.

Justice Ong found that on the factual matrix of the case, "the court has no jurisdiction and power to appoint a guardian and it is not in the children's welfare to appoint a guardian". James' husband had argued the application was to enable him to provide consent for medical treatment for the children during emergencies when the plaintiff was not present. But Justice Ong noted that however necessary or urgent, life-saving medical treatment will not be withheld, and where the need is not too urgent, a parent's consent can be obtained through various means of modern communication.

"I also remarked at the hearing that it is not uncommon for parents to entrust their children to caregivers, like grandparents, when they are overseas. These caregivers need not be clothed with the heavy legal instrument of a guardianship appointment. Thus, I do not find it necessary for the defendant to be appointed guardian in order to care for the children when the plaintiff is not present."

The purpose of the Guardianship of Infants Act, she added, was to enable the courts to make orders for the welfare of the children without intervening unnecessarily in the parental responsibility of a parent. The judge noted James and Shawn had not had an incident so far that raised decision-making difficulties. "It appears that the plaintiff's application was driven by convenience, not necessity. Convenience alone is not a reason for a friend, cousin or grandmother to be appointed a guardian. Thus the reasons provided for the appointment of the defendant as a guardian were insufficient for the court to make such an order, even if there was the jurisdiction and power to do so," she said.

The judge also rejected the application for joint custody, care and control, noting that James and Shawn had been caring for the children without any order for guardianship, custody or care and control. "Indeed, on the plaintiff's own evidence, the children were thriving under their care, an assertion which I saw no reason to doubt. I therefore did not see why it was necessary for the Court to make the orders sought by the plaintiff," said Justice Ong. 

=See also=
 * Child adoption by same-sex couples in Singapore
 * Same-sex parenting in Singapore

=References=
 * K. C. Vijayan, "Singapore court rejects bid by gay man to adopt child he fathered through surrogacy", The Straits Times, 27 December 2017.
 * Agence France-Presse, "Singapore court stops gay doctor’s bid to adopt US-born surrogate son", South China Morning Post, 28 December 2017.
 * Kok Xinghui, "Where to go, what to do? Family in Singapore’s gay surrogacy adoption case face life in limbo", South China Morning Post, 9 January 2018.
 * KC Vijayan, "Landmark High Court case allows Singaporean gay dad to adopt surrogate son", The Straits Times, 17 December 2018.
 * Kok Xinghui, "Singapore allows gay couple to adopt their surrogate son in landmark ruling", South China Morning Post, 17 December 2018.
 * Rahimah Rashith, "Gay parents seeking to adopt their kids may find it harder to prove they did not intend to violate policy against same-sex families: Desmond Lee", The Straits Times, 19 December 2018.
 * Kok Xinghui, "‘A huge load off our shoulders’: gay Singapore couple open up after landmark adoption case", South China Morning Post, 22 December 2018.
 * Rachel Au-Yong, "Family life takes shape for gay couple after adoption ruling", The Straits Times, 23 December 2018[Family life takes shape for gay couple after adoption ruling].
 * Rachel Au-Yong, "Parliament: Authorities looking at adoption laws and surrogacy, do not support gay families, says Minister Desmond Lee", The Straits Times, 14 January 2019.
 * Reuters, "Singapore’s gay adoption case may lead to tighter laws to prevent ‘formation of same-sex family units’", South China Morning Post, 14 January 2019.
 * Kok Xinghui, "Why some members of Singapore’s LGBT community prefer life in the shadows", South China Morning Post, 6 February 2019.
 * KC Vijayan, "Gay man's adoption of biological child: Chief Justice says it is not the courts' business to formulate policy", The Straits Times, 12 March 2019.
 * KC Vijayan, "Court rejects bid by gay man to make partner guardian of his two surrogate children", The Straits Times, 17 February 2020.

=Acknowledgements=

This article was written by Roy Tan.