SINGAPORE: The High Court of Singapore on Monday (Dec 17) allowed a gay man’s application to adopt his five-year-old biological son who was born through a surrogate mother in the United States.
“This is a landmark case because it’s the first time surrogacy and gay adoption have been canvassed in court,” the man’s lawyer, Koh Tien Hua of Eversheds Harry Elias, told Channel NewsAsia.
The man, a 46-year-old pathologist, has been dating a man of the same age since 1998. The couple - both Singapore citizens - began cohabiting in 2003 and currently reside with the child and a domestic helper in a condominium here, according to court documents.
Sex between men is criminal in Singapore and same-sex marriages are not legally recognised.
The couple had initially wanted to adopt but were advised by agencies that their homosexual orientation would hinder success. So they travelled to the US and paid about US$200,000 for a woman to carry and deliver a baby through in-vitro fertilisation and then hand the child over.
The pathologist’s sperm was used together with the egg of an anonymous donor. In Singapore, an assisted reproduction procedure can only be administered to a married woman with her spouse’s consent.
The boy was then brought to Singapore on a long-term visit pass, but an early application for Singapore citizenship was denied. The couple then approached the Ministry of Social and Family Development (MSF) for advice and were told their prospects would be enhanced if the child was legally adopted.
In December 2014, the biological father applied as a single parent to adopt the child. A joint adoption by two men is not allowed under Singapore law.
Three years later, their application was dismissed by a district judge who said it was “ethically problematic” to go overseas to procure a child through surrogacy.
The men appealed the outcome, but emphasised in earlier media interviews that they were not “pushing any agendas for gay issues”. Said the man’s other lawyer Ivan Cheong: “It has always been our position ... that his sexuality is immaterial to the adoption application.”
CHILD’S WELFARE BEFORE PUBLIC POLICY
In a statement provided to reporters, the man said: "This has been a long and difficult journey for our family. We are happy and relieved with the High Court's ruling. We hope that with the adoption order, it will increase the chances of our son residing in Singapore for the long term."
The High Court’s decision to overturn the earlier ruling hinged on it being satisfied that adoption would be for the welfare of the child, and to increase his prospects of securing Singapore citizenship and possible long-term residence in Singapore, where his natural father and family support structures were located.
“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,” Chief Justice Sundaresh Menon wrote.
He also said the court could not and should not articulate a public policy against surrogacy and give it weight in the present case, “given the still evolving nature of the Government’s position in the light of the complexities surrounding the substantive issue”.
Local law does not expressly ban surrogacy, but healthcare institutions are not allowed to provide assisted reproduction services for surrogacy.
“The court found that there is no public policy against planned or deliberate parenthood by singles through the use of assisted reproductive technology or surrogacy,” Mr Cheong commented. “This is very important in the clarity it provides over the issue of surrogacy and its potential impact.”
CJ Menon also noted that granting an adoption order to the man would not be contrary to public policy encouraging heterosexual family units as optimal parenting conditions - because the policy did not logically entail opposing other forms of parenthood.
He also said no weight could be given to public policy against formation of same-sex family units as this policy did not arise from the Adoption of Children Act.
At the same time, CJ Menon wrote, nothing indicated that the man had set out deliberately to violate any law or public policy.
None of the above reasons were “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”, he concluded. The evidence also supports that the child’s welfare would be advanced through an adoption order.
CJ Menon however made sure to qualify that this decision was arrived at “with not insignificant difficulty” - based on the facts of the case and application of law, rather than “an endorsement” of what the man and his partner set out to do or an expression of “sympathies” for the couple’s position.
“At the end of the day, it is about what is in the child’s best interests,” said Mr Cheong. “The court recognised this … Our client is overjoyed and happy that at the end of a long adoption process, the child’s welfare is upheld.
“Being recognised as a legitimate child, and given the certainty of having his long-term residential status in Singapore met, have always been our client’s primary concerns.”
"Singapore is the only place we have known as home, and is where we wish to raise our family," the man added in his statement.