Court rejects bid by gay man to make partner guardian of his two surrogate children

A photo taken on Dec 22, 2018, shows a Singaporean man (right) with his partner and biological son, whom he was legally allowed to adopt in a landmark court case, at the Botanic Gardens.
A photo taken on Dec 22, 2018, shows a Singaporean man (right) with his partner and biological son, whom he was legally allowed to adopt in a landmark court case, at the Botanic Gardens.PHOTO: ST FILE

SINGAPORE - The Singaporean man, who was allowed to legally adopt his biological son in a widely publicised landmark court case in 2018, has failed in his bid to have his same-sex partner named guardian of his son, as well as a girl he fathered in the United States through a surrogacy arrangement.

The High Court also rejected his bid to have his partner 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 the man's application was made in the welfare of the child is insufficient.

In judgment grounds issued on Feb 14, 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.

The man had married his partner - who was named the defendant in the guardianship matter - in 2018 in the US, where same-sex marriage is legal.

The 47-year-old man, a pathologist, has been with his Singaporean partner since 1998.

In early 2019, he had a daughter through a second surrogacy arrangement in California. His first child - a boy who is seven years old this year - was also fathered through a surrogacy arrangement in the US.

The man legally adopted the girl in the US and moved back to Singapore. She now lives with the couple and their son in Singapore.

His son was brought back to Singapore in 2013 on a long-term visit pass, and the man subsequently applied for Singapore citizenship for the boy. But it was denied.

Because joint adoption by two men is not allowed under Singapore law, the man applied in December 2014 as a single parent to adopt the boy.

After the application was dismissed in the district court, he took it to the High Court where the three-judge court granted the adoption, stressing that its decision was based on the welfare of the child, and "should not be taken as an endorsement of what the appellant and his partner set out to do".

With his daughter's birth last year, the man 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. His partner consented to the moves.

Through his lawyers Koh Tien Hua and Shaun Ho from Eversheds Harry Elias, the man said he and his partner provide care for both children with a domestic helper.

He added that his partner had resigned from his job as a marketing executive to care for the children, but pointed out that the partner faced or would face difficulties in caring for the children as he is neither their biological or legal parent.

Among other things, his partner is unable to provide consent for medical procedures on behalf of the children and if the children are ill when he is away, his partner would not be able to make decisions concerning medical treatment.

His partner, 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 is the court's paramount consideration under the Guardianship of Infants Act. The law refers 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 is not a responsibility that can be voluntarily delegated, unless the parent gives the child up for adoption.

In such a case, that parent is no longer the parent of the child. Instead, the new adoptive parents have 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 the man went further than giving his partner 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 includes 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".

The man's partner had argued the application was to enable him to provide consent for medical treatment for the children during emergencies when the plaintiff is 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, is 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 the man and his partner have 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 the man and his partner 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.