Gay man allowed to adopt surrogate son on appeal

File photo of an adult holding a child's hand. A gay Singaporean has been allowed to adopt his biological son after a bid to do so was rejected last year.
File photo of an adult holding a child's hand. A gay Singaporean has been allowed to adopt his biological son after a bid to do so was rejected last year.PHOTO: ST FILE

High Court says paramount consideration for reversal of decision was child's welfare

In a decision that it reached "with not insignificant difficulty", the High Court has allowed a gay Singaporean man to adopt his biological son, whom he fathered in the United States through a surrogate mum.

The pathologist father had brought the Pennsylvania-born boy, now five, to Singapore, but his bid to adopt him was rejected by a district judge last year.

In judgment grounds issued yesterday, the three-judge court stressed 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," Chief Justice Sundaresh Menon wrote on behalf of the court, which also included Judge of Appeal Judith Prakash and Justice Debbie Ong.

"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".

The biological father and his partner, both Singaporeans aged 46, had cohabited for 13 years. They first approached the Ministry of Social and Family Development (MSF) to inquire about adopting a child, but were told it was unlikely to recommend adoption by a homosexual couple.

  • MSF to consider if policies, laws need to be reviewed

  • The Ministry of Social and Family Development (MSF) has said it respects the High Court's ruling yesterday allowing a gay Singaporean man to adopt his biological son.

    An MSF spokesman also said the ministry will "study the grounds of decision carefully and consider if the relevant policies and legislation need to be reviewed and further strengthened".

    "MSF had opposed the appeal because, among others, the adoption would be contrary to public policy against the formation of same-sex family units," the spokesman said in a statement.

    She added that the man had also gone overseas for surrogacy to form a single parent household, when surrogacy is not permitted in Singapore.

    The ministry noted that the High Court recognised the existence of two public policies. The first is of encouraging parenthood within marriage, which MSF described as "the norm in our society", and second, is the lack of support for the formation of same-sex family units.

    "However, the court concluded with not insignificant difficulty that an adoption order ought to be made in this case because it would advance the child's welfare, which the court found is 'first and paramount'," said the MSF spokesman.

    The court took the view that allowing the adoption would "make the child a legitimate child with the social acceptance attached to this status", and that would bring some "positive social, psychological and emotional impact" on the boy.

    "All adoptions are decided by the court on a case-by-case basis," the spokesman added.

  • Fabian Koh

The man then flew to the US where, through in-vitro fertilisation procedures, the embryo bearing his sperm was transplanted into the womb of a woman who carried it to term for US$200,000 (S$275,000).

He returned here with the child, but a district court refused to let him adopt the boy.

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 and the judgment was reserved.

Lawyers from the Attorney-General's Chambers led by Ms Kristy Tan, in representing the Guardian-in-Adoption from MSF, disputed that adoption would advance the child's welfare.

Adding that public policy is a relevant concern in adoption applications, they pointed out that 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 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.

It held that an adoption order would increase the child's prospect of becoming a resident Singaporean, which will significantly enhance his sense of security and emotional well-being, and care arrangements. The court added that the 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 Menon said given the circumstances, 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 policymaking that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into."

 
 
 

The boy's father said the family had spent many sleepless nights worrying about the judgment. "We hope that with the adoption order, it will increase the chances of our son residing in Singapore for the long term. Singapore is the only place we have known as home, and is where we wish to raise our family," he told The Straits Times.

Mr Koh, one of the lawyers who acted in the case, said: "This judgment recognises the important role of the family in the child's life, no matter the orientation of the parent, and found that an adoption order would be for the child's welfare."

A version of this article appeared in the print edition of The Straits Times on December 18, 2018, with the headline 'Gay man allowed to adopt surrogate son on appeal'. Print Edition | Subscribe