Government’s Position on Court Ruling to Award Adoption to Man in Same-sex Relationship

Mr Christopher de Souza asked the Minister for Social and Family Development whether the Ministry will (i) ban commercial surrogacy in Singapore, (ii) prohibit agreements to pay for surrogacy in Singapore or overseas and (iii) disallow adoptions arising from commercial surrogacy whether such surrogacy occurs in Singapore or overseas.

Thank you. Let me begin by recapping the facts of this case that is the subject of these Parliamentary Questions, so as to provide this House with the context to my response.

Sir, the applicant in this case is a male Singaporean in a long-term relationship with another man. When the two men enquired about adopting a child, they were advised that the Ministry of Social and Family Development (MSF) was unlikely to recommend the adoption of children by parties who were in a same-sex relationship.

Both of them then went to the United States (US) for commercial surrogacy and paid a total of US$200,000 to a private company there. Under the terms of the surrogacy contract, the arrangement was for the surrogate mother to carry the baby to term, deliver him and then give up her rights over him. The child was born in 2013 and was handed over to the applicant and his partner.

The child is a US citizen and has been brought up in Singapore by the two of them in the same household. The applicant later applied to Court to adopt the child. In February 2017, the Family Justice Court ruled against the adoption. The applicant then appealed to the High Court. In December 2018, the High Court, which comprised three judges, allowed the adoption to proceed.

Following the ruling, the applicant and his partner gave media interviews, reported locally and abroad, describing the challenges that same-sex parents faced when wanting to conceive and raise their own children in Singapore, and shared about the process they went through to start a family in Singapore via overseas surrogacy.

Understandably, the High Court's decision to grant the appeal has evoked a diverse range of emotions and reactions amongst Singaporeans and raised questions about the implications of this case. These fall broadly into two categories.

First, around the definition of marriage, family and future conceptions of family in society, some Singaporeans are concerned whether this ruling sets a precedent to allow homosexual couples to legally adopt children in Singapore and, in so doing, mainstreams same-sex parent households here. Others, including lesbian, gay, bisexual, transgender (LGBT) activists, say that this case is a step towards the recognition and legalisation of same-sex relationships.

Second, on commercial surrogacy, some have asked whether this ruling legitimises commercial surrogacy carried out overseas, especially in light of the complex ethical questions surrounding this practice. Members' questions today reflect this range of views and reactions. Indeed, these emerging issues and divergent attitudes have become increasingly salient in our society.

LGBT persons have a place here in Singapore and are entitled to their own private lives. Just like other Singaporeans, they have access to opportunities and social support, such as education, employment and healthcare, and should, like all Singaporeans, not be subject to prejudice and discrimination. However, we must be mindful that a push for rights and entitlements which the broader society is not ready for, or able to accept, will provoke a pushback, and can be very socially divisive. A push to use legislation or the Courts to precipitate social change involving issues as deeply held and personal as this polarises society.

While we recognise that there are increasingly diverse forms of families and households in Singapore, the prevailing social norm in our society is still that of a man and woman marrying and having and bringing up children within a stable family unit. This is also the family structure that the Government encourages. Most of us would agree that it is ideal for children to grow up in families anchored by strong and stable marriages. This is reflected in the differentiation we maintain in policies and benefits to encourage and support parenthood within marriage.

It follows from this that the Government does not encourage planned and deliberate single parenthood as a lifestyle choice. Specifically, we do not support the use of Assisted Reproduction Technology or surrogacy by singles to conceive children, for the purpose of forming single unwed parent households. Hence, In-Vitro Fertilisation or other Assisted Reproduction Procedures at licensed assisted reproduction institutions are available in Singapore only to married couples who experience difficulties in natural conception.

Over time, social attitudes have evolved to greater accommodation of homosexuals. The Government's policy is not to intrude or interfere with the private lives of Singaporeans, including homosexuals and their relationships or partnerships. However, we do not support the formation of family units with children and homosexual parents, through institutions and processes, such as adoption.

Therefore, MSF did not support the appeal by the homosexual couple to adopt the child that they had conceived through surrogacy overseas, after they had been informed that the Government would not support the application to adopt the child because this would have been contrary to public policy.

In raising this objection, MSF had carefully considered the welfare of the boy. Two important aspects were considered. First, the child is not stateless but is a citizen of the US. Second, the child remains with the father and will be cared for. The father has full parental rights and responsibilities, even if the adoption was not granted. In fact, the Women's Charter obliges parents to provide for their children, regardless of the children’s legitimacy status.

The High Court stated that they had reached their decision in this case "with not insignificant difficulty". The Court affirmed the public policy against the formation of same-sex family units and recognised that granting the adoption would violate it. This was, however, weighed against the interest of the child's welfare. Based on the specific facts of this case, the Court allowed the appeal to allow the child to be adopted. We respect and accept the Court's decision.

Following the Court's judgment, MSF is reviewing our adoption laws and practices to see how they should be strengthened to better reflect public policy which, in turn, is a reflection of the values of our broad society today. For instance, while the welfare of the child should always be a very important consideration in adoption proceedings, we are looking at whether the Adoption of Children Act needs to be amended so that a better balance can be struck when important public policy considerations are involved.

We are also studying the issue of surrogacy carefully. This is a complex issue with ethical, social, health and legal implications for all parties involved. For commercial surrogacy in particular, concerns have been raised about the exploitation of women and commodification of children. These issues are not trivial and warrant careful study and discussion. Persons who are considering surrogacy should take this into account from the outset while making their decision, as such factors could have a significant impact on the child.

Today, surrogacy cannot be carried out in Singapore at any licensed healthcare institution that provides assisted reproduction services. Parents who have gone overseas for surrogacy and who come back to apply for adoption of their surrogate children will have their applications assessed on a case-by-case basis. They will also be scrutinised by the Courts during the adoption hearings. Prior to this, the Courts have granted adoption of 10 children born abroad as a result of surrogacy. These children were all born to married couples applying jointly to adopt their child, and who had resorted to surrogacy because the couples were infertile.

While an adoption order serves to make a child legitimate under the law, it does not on its own guarantee benefits and privileges, such as citizenship, education or housing. Access to housing will continue to be determined by prevailing criteria, in line with public policy supporting parenthood within marriage. All Singaporean children, regardless of their legitimacy status, will receive Government benefits that support their growth and development, including healthcare and education benefits.

I thank the Minister for his response. Commercial surrogacy, in my view, where a woman's womb is rented for money, is demeaning to the child and to the woman. It commodifies the life of a baby. Life is formed for a commercial price, then bought and sold. This is exploitative.

My supplementary questions are: would the Minister agree, for these reasons, that commercial surrogacy should be prohibited? Further, it can be argued that a substantial amount of commercial surrogacy is undertaken by women who are poverty-stricken and it is, therefore, exploitative of them. So, my second question is, for those additional reasons, does the Minister agree that commercial surrogacy should be barred? Thirdly, to make these principles even clearer, could the Minister consider amendments to the Children and Young Persons Act, the Penal Code and the Adoption Act? And I am very willing to work with MSF, as a Member of Parliament, to make the necessary amendments in the law to reflect those principles.

I thank the Member for his questions. Surrogacy is an issue that is fraught with ethical concerns. The Member has rightly pointed out that some have argued against the commodification of children, against the exploitation of women. And others, on the other hand, say that this offers a way out for couples who are otherwise unable to bear their own children. Some women, for instance, have, due to medical reasons, had their wombs removed. And even though they get married and wish to have their own children, are unable to do so, and that could be why some of them go overseas and undergo surrogacy. Because of the ethical considerations and the practical concerns about surrogacy, it is not permissible currently in Singapore to be carried out at healthcare institutions.

So, our position currently, as it stands, is that we do not allow it in Singapore. But where couples for whatever reason go overseas and come back, it is scrutinised on a case-by-case basis, ultimately with the gatekeeping by the Courts, who will look at the application. Thus far, all surrogate adoptions have been by married couples, men and women who have had medical reasons why they cannot otherwise conceive and these are then assessed by the Courts holistically.

As to whether we should completely prohibit surrogacy by Singaporeans within Singapore or all over the world, and whether we should amend the legislation to do so, it is something that we must consider holistically and carefully, keeping in mind the wishes, aspirations and concerns of mothers who would otherwise not be able to conceive their own flesh and blood.

I thank the Minister for his response. I note that the Ministry will be reviewing the adoption framework on a more generic basis, but with specifics to the case itself, can I just find out whether the Ministry will be involved at all in monitoring or surveillance of this child during his growing-up years? For example, will school counsellors be alerted? What about management of expectations of the child and also their psychological and mental well-being? Will there be any involvement of the Ministry on these grounds?

I think the Member alludes – I may be wrong – in part, to concerns that the child who is brought up by two parents in Singapore who are of the same gender may result in this child having difficulties adjusting to mainstream society in schools and preschools, in the working environment, and so on and so forth. But whether or not MSF needs to then come in to monitor and provide surveillance on the child, it is something quite altogether different. Certainly, for any child, or any children in Singapore for whom legitimate concerns are raised about their welfare, then MSF will come in and take a look. This child that has hitherto been taken care of by the biological father and his male partner, we are concerned about the formation and mainstreaming of same-sex parent family units in Singapore, but when it comes to the welfare of the child, we have to act on the basis of whether there are concerns or otherwise.

I thank the Minister for his response and I take it to heart that there are some men and women in marriage who find it difficult to conceive. But to resort to commercial surrogacy where you are paying for a womb overseas, renting a womb, does bring about ethical concerns. And there is always the option in Singapore for a married man and woman to explore adoption. So, there is an adoption of another child. So, there is a route to create a family unit with children. Would the Minister consider that as a route?

We will take all the Member's suggestions into consideration as part of this overall review. Certainly, the Member is quite right that adoption of unrelated children or even of related children who had to be given up by other family members is and remains an option. So, ultimately, the concerns over surrogacy as well as commercial surrogacy remain. In some jurisdictions, they have permitted altruistic surrogacy. In others, they go the whole hog to allow commercial surrogacy. And in some jurisdictions, they say they have put in safeguards to ensure that those who step forward to offer surrogate services are not exploited. But we need to study this holistically and see what works for Singapore and what Singapore's broader society is prepared to accept or not to accept.