Landmark High Court case allows gay dad to adopt surrogate son

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.

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.

The three-judge appeal court made clear 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", adding: "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 circumstances of the case, 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".

"This statutory imperative is not only intrinsically weighty, having emanated from the Legislature, but is also supported by the evidence, which shows the welfare of the child, which is the value opposed by the countervailing public policy consideration in this case, would be materially advanced by our making the adoption order," CJ Menon said in judgement grounds released on Monday (Dec 17)

The biological father and his partner, both Singaporeans aged 46, had cohabited for some 13 years.

They first approached the Ministry of Social and Family Development (MSF) to inquire about the possibility of 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 then transplanted into the womb of a woman who offered to carry 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 on various grounds 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 judgement 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 Ministry of Social and Family Development argued among other things that the concern to promote the child's welfare may in this case 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, the said the application should be dismissed, pointing out the present circumstances are entirely of the couple's own making "because they went to great lengths to circumvent the laws of Singapore to start a family unit".

The court outlined a two-step framework in relation to public policy considerations raised.

Firstly, it would undertake a forensic exercise to determine if public policy considerations do in fact exist and if they do, balance them against the weight to be given to the value underlying the claimed right which is in competition to the public policy consideration.

In the current case, although the Court found that there is a public policy in favour of parenthood within the marriage and a policy against the formation of same sex units, the Court found that the welfare of the child would be significantly promoted 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 also be able to apply for Singapore citizenship. If successful, this would stabilise the child's care arrangements and give him a sense of security.

The Court reiterated the importance and meaning of the term "first and paramount" when considering the child's welfare which is critical l to any applications concerning the child.

The court added that the Guardian-in-Adoption from the MSF who probed and 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".

"Had the position in this regard been different, our decision may or may not have been different," wrote CJ 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 policy-making that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into.

" Indeed it is perhaps for this reason the Guardian clarified during oral argument that she was not relying on a public policy against surrogacy.

"We have 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."

Lawyer Koh Tien Hua, 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 judgement 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."

This article was first published in The Straits Times. Permission required for reproduction.