High Court grants gay man’s bid to adopt biological son born via surrogate mother

SINGAPORE — A gay Singaporean doctor will be allowed to adopt his five-year-old biological son born in the United States through a surrogate mother.

In a landmark decision on Monday (Dec 17), the High Court overturned an earlier ruling that rejected the man’s bid.

Delivering the three-judge panel’s decision, Chief Justice Sundaresh Menon said that granting the adoption order in this case would “violate the public policy against the formation of same-sex family units”, but this concern is not powerful enough to ignore the need to promote the welfare of the child and regard it as paramount.

This is the first adoption application here by someone who has openly declared himself to be homosexual and living with his same-sex partner.

There is evidence to show that the welfare of the child would be materially advanced by the court granting an adoption order, Chief Justice Menon said. Together with Judge of Appeal Judith Prakash and Judge Debbie Ong, he said: “With not insignificant difficulty, therefore, we conclude that an adoption order ought to be made in this case.”

An adoption order would increase the child’s prospects of securing Singapore citizenship and possible long-term residence in Singapore, where his natural father and family support structures are, the judges noted.

This has significant bearing on the child’s sense of security and emotional well-being, as well as the long-term stability of his care arrangements, the High Court said in its 145-page judgment.

The child is an American citizen born in November 2013. The man's sperm was used to impregnate the egg of an anonymous donor through in-vitro fertilisation (IVF) procedures. The embryo was transplanted into the womb of a woman, who carried the foetus to term for a fee.

Last year, the lower court had rejected the man’s application to adopt his biological son, saying the man was well aware that the use of medical procedures — such as IVF — to have his own child would not have been possible in Singapore. He cannot then “come to the Courts of the very same jurisdiction to have the acts condoned”, District Judge Shobha Nair ruled last December.

The 46-year-old man, who works as a pathologist, and his partner — who is also a Singaporean and of the same age — have been living together for about 13 years. They chose to enable the birth of the child by having the IVF and surrogate procedures done in the United States.

In Singapore, assisted reproduction can only be provided to a married woman with the consent of her spouse. And while the law here does not explicitly prohibit surrogacy, the Ministry of Health prohibits licensed healthcare institutions from providing assisted reproduction services to carry out surrogacy.

The lower court said: “Having so chosen, (the man) seeks to have the courts of Singapore allow the adoption of the child by pointing to the principle of the ‘welfare of the child’.” 

His legal bid to adopt the child “is in reality an attempt to obtain a desired result — that is, formalising a 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”, the lower court added.

The child’s welfare does not demand unlocking the back door, the lower court also said.

“An adoption order in this particular case serves no other purpose than to ensure that the interests of the adult are not compromised. It does not further the interests of a four-year-old child… (who) will thrive anywhere if in the hands of loving people,” the district judge said at the time.

On Monday, Chief Justice Menon said that the High Court’s decision should not be taken as an endorsement of what the man and his partner set out to do.

He noted the “difficult interplay between law and public policy” in this case, saying: “The law is asked to provide the answer to a dilemma that challenges the mores of a largely conservative society, and this arises partly because science has devised a new paradigm for procreation.”

Besides the public policy against the formation of same-sex family units, the High Court accepted that there is also a policy in favour of parenthood within marriage.

Mr Menon said that the adoption order is not contrary to the policy favouring parenthood within marriage, because it is “not the same thing as a public policy against other forms of parenthood”.

The court’s role is to apply the law and there is nothing to indicate that the doctor set out to deliberately violate any law, Mr Menon noted.

On the court’s role, he said: “It is not to determine social policy in our country or to be a player in what has sometimes been seen as the ‘culture wars’ that assail society.”

The Ministry of Social and Family Development told TODAY that its director of social welfare, appointed by the Family Justice Courts as the Guardian-in-Adoption, looks into an average of 360 adoption applications a year. Applications by sole applicants form less than 10 per cent of the applications. ADDITIONAL REPORTING BY ALFRED CHUA

ABOUT THE CASE

The doctor and his partner are both 46, Singaporean and have been in a relationship for about 13 years.

They live with the child and a domestic helper in a three-bedroom condominium here.

Sometime during their relationship, the couple decided that they wanted to raise a child together. They were advised by adoption agencies that because of their homosexual orientation, they would not be allowed to adopt in Singapore.

They went abroad and paid US$200,000 (about S$275,000) for a woman, an American citizen, to be the surrogate mother. The sum of money included medical fees and a payment of US$25,000 to the woman.

They both donated their sperm for the procedure, and an egg from an anonymous donor was fertilised by the doctor’s sperm.

The child was born in November 2013 in Pennsylvania. The birth mother relinquished her parental rights over the child.

In August 2014, the Immigration and Checkpoints Authority of Singapore rejected the child’s citizenship application.

In December 2014, the doctor filed the application to adopt the boy.

A District Judge dismissed the application in December last year. The doctor appealed the decision, which was overturned by the High Court on Monday.