Gay man fails to adopt child he had via surrogacy

Singapore court rejects bid, pointing out man was aware surrogacy is not condoned here

File photo of an adult palm holding the hand of a child. The court said that it "did not envisage the specific situation this case presents". PHOTO: THE BUSINESS TIMES FILE

A gay Singaporean man travelled to the United States and paid US$200,000 (S$268,000) to father a boy through surrogacy arrangements. A district judge has rejected his bid to adopt the child - now four years old - whom he brought back with him to Singapore.

The Adoption of Children Act "did not envisage the specific situation this case presents", the court said.

The Singaporean man, a doctor, had been in a gay relationship with a partner here for 13 years.

They approached the Ministry of Social and Family Development to inquire about the possibility of adopting a child, but were told that the ministry was unlikely to recommend adoption of children 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 then transplanted into the womb of another woman, who offered to carry it to term for US$200,000.

As the biological father of the child, 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", the court heard.

His application has been turned down by District Judge Shobha Nair.

  • Ministry's response

  • The Ministry of Social and Family Development (MSF) laid out its policy on adoption yesterday, when it commented on a court decision on a gay Singaporean doctor's bid to adopt a child he had fathered through surrogacy in the United States.

    It said its position is "informed by Singapore's public policy, which encourages parenthood within marriage".

    "Planned and deliberate parenthood by singles, as evidenced through the intentional use of assisted reproduction and/or surrogacy, runs contrary to this," an MSF spokesman said in an e-mailed response to queries from The Straits Times.

    According to past media reports, surrogacy is not explicitly banned here, although the Health Ministry's guidelines prohibit assisted reproduction centres from practising surrogacy.

    The MSF, in comments made last night on the failed bid, said all adoption applications are assessed on a case-by-case basis.

    The factors it considers include the applicant's parenting capacity, parenting beliefs, family circumstances, support network and ability to meet the child's long-term needs.

    "The best interests of the child are the primary consideration when the Guardian-in-Adoption assesses each adoption application," said the spokesman.

    She explained that the director of social welfare, as the appointed Guardian-in-Adoption, opposed the Singaporean doctor's application on policy grounds.

    But the Family Justice Courts make the final decision on adoption applications, taking into account various factors such as the assessment and recommendation of the director of social welfare.

    "The Adoption of Children Act prohibits any payment or reward to the biological or adoptive parents for the adoption of the child, except with the sanction of the court," the spokesman added.

    She also reiterated the court's stand, which is that the doctor's adoption application is a case of "intentional and deliberate parenthood by a single to conceive a child through procedures which are not allowed in Singapore".

    In any case, she said, "the welfare of the child is not affected by the dismissal of the adoption application, and the child, who is a US citizen, will continue to be in his father's care".

    Rachel Au-Yong

In judgment grounds released on Tuesday, the district judge pointed out that, as a doctor, the man was fully aware that Singapore does not condone surrogacy - in which a woman agrees to carry to term a child who is not her own, usually for a fee. Also, the use of IVF is confined to married couples, under Singapore law.

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

She said the applicant, being a doctor, 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."

Lawyers Koh Tien Hua, Ivan Cheong and Shaun Ho denied that their client was seeking to adopt the child to form a lawfully recognised family unit with his partner - in effect a gay family.

But Judge Nair 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 Nair.

The welfare of the child was also not the issue in this case, as he would continue to have 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 said.

The applicant also retained his rights to the child as the biological father, said 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 Nair pointed out that the child was not stateless. He is an American citizen.

In any case, she said, "this court cannot by an adoption order enable Singapore citizenship".

She was also not 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," she said.

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."

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A version of this article appeared in the print edition of The Straits Times on December 28, 2017, with the headline Gay man fails to adopt child he had via surrogacy. Subscribe