SINGAPORE - In a landmark move, the High Court has approved on appeal a gay Singaporean's bid to adopt his biological son, whom he fathered in the United States through a surrogate mum for US$200,000 (S$275,000).
The 46-year-old 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 released on Monday (Dec 17), 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".
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.
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 transplanted into the womb of a woman who carried it to term for US$200,000.
As the biological father, 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 but his application was turned down by a district judge last year.
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.
Ms Kristy Tan, Ms Germaine Boey and Ms Uni Khng from the Attorney-General's Chambers, in representing the Guardian-in-Adoption appointed by 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".
Wrote Chief Justice Menon: "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 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 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 Mr Koh, who acted in the case, said this is 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."