Legal Updates

Gay man’s application to adopt biological son conceived through surrogacy granted: UKM v Attorney-General [2018] SGHCF 18

17 Dec, 2018

Singapore court decision: UKM v Attorney-General [2018] SGHCF 18

Facts: 

The appellant had been in a long-term relationship with his same-sex partner. They decided to raise a child together and paid a surrogate mother in the United States to carry and deliver a baby conceived through in vitro fertilisation, in which procedure the appellant’s sperm and the egg of an anonymous donor were used. Subsequently, the surrogate mother gave birth to the appellant’s biological son (“the Child”).

The appellant then brought the Child to Singapore and applied for Singapore citizenship for the Child. Upon rejection of the citizenship application, the appellant sought advice from the Ministry of Social and Family Development and was informed that the Child’s “eligibility for Permanent Residency/citizenship” would be improved should he be adopted by the appellant.

The appellant subsequently filed an application to adopt the Child under the Adoption of Children Act (Cap 4, 2012 Rev Ed) in Singapore but his application was dismissed by a District Judge. Given that gestational surrogacy was not legally available in Singapore, the District Judge held that such an application would only be allowed if the welfare of the child in question demanded it, which was not the case. The appellant appealed to the High Court of Singapore (“the court”) against that decision.

Judgment:

In relation to the welfare of the Child, the court held the following:

  1. The welfare of a child refers to his “well-being” in every aspect for the purposes of section 5(b) of the Adoption of Children Act. It is equally critical to account for the intangible components of a child’s well-being in a broader sense, notably the environment within which his sense of identity, purpose and morality will be cultivated.
  2. Section 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) requires any court to regard the welfare of a child as the first and paramount consideration in any proceedings concerning his custody and upbringing. The court held that this applies to adoption proceedings. The court should generally make an order that achieves an outcome which is shown to be for the welfare of the child unless there are compelling reasons to do otherwise.
  3. In the present case, an adoption order would be for the welfare of the Child because it would enhance the Child’s prospects of acquiring Singapore citizenship and possible long-term residence in Singapore, which would contribute to his sense of security and emotional well-being, as well as the long-term stability of his care arrangements.
In relation to the legal basis for taking public policy into account in determining whether to make an adoption order, the court took the following view:
  1. Section 3(1) of the Adoption of Children Act gives the court a general discretion to determine whether to make an adoption order once the relevant statutory requirements are met. One of the purposes of conferring such a discretion on the court is to enable it to consider any public policy which may be relevant to any aspect of the institution of adoption.
  2. Public policy considerations relating to family, parenthood and the well-being of children could, therefore, be introduced in the present case pursuant to section 3(1) of the Adoption of Children Act.
Having established the legal basis for taking public policy into account in determining whether to make an adoption order, the court went on to discuss the proper approach to taking public policy into account and further held that:
  1. A two-step analytical framework for taking public policy into account is established. The first step is a forensic exercise to determine whether the alleged public policy exists, and if it does, whether it is violated should the claimed right be given effect. The second step is a balancing exercise between the value underlying the claimed right and the countervailing public policy considerations.

In accordance with the two-step analytical framework above, the court held in the present case that:

  1. Firstly, there existed a public policy in favour of parenthood within marriage and a public policy against the formation of same-sex family units.
  2. Secondly, making an adoption order in the present case would violate the latter policy but not the former. Significant weight was ascribed to the latter given its rational connection to the present dispute and the extent to which it would be violated should an adoption order be made. Yet, in the circumstances of the case, neither of these reasons justified ignoring the statutory imperative to promote the welfare of the Child and to regard it as first and paramount. The court held that the welfare of the Child would be materially advanced by the making of an adoption order. With difficulty, the court concluded that an adoption order ought to be made in the present case.
Finally, it should be noted that the payment made by the appellant to the surrogate mother was a “payment or other reward” received by a parent in consideration of the adoption of an infant within the meaning of section 11 of the Adoption of Children Act and, therefore, would be unlawful unless the court sanctioned it. In relation to the payment:
  1. The court held that, even if a payment falling under section 11 is not sanctioned, the adoption application will not automatically fail but the court shall take into account the reason why sanction is withheld in the balancing exercise above.
  2. The court decided to sanction the appellant’s payment, as the appellant made it for the purpose of adopting the Child with a sincere desire to benefit and promote his welfare.
 Based on the above, the court allowed the appeal.
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