Debated in Parliament on 12 Aug 2013.
Order for Second Reading read.
Mr Deputy Speaker, Sir, I beg to move, "That the Bill be now read a Second time."
The Bill deals with the legal parenthood and status of children conceived through assisted reproduction technology, or ART. This is now being introduced because of the increased use of ART treatment in Singapore.
We have been studying possible legislation in this area. We consulted the public last November on a draft Bill. That followed earlier consultation with family law experts and religious groups in 2011. We studied the Law Reform Committee's 1997 Report on the status of children conceived through ART. We also looked at and discussed the legal position and practices of other jurisdictions, including the United Kingdom, Australia and New Zealand.
Having undertaken this review of the legal and socio-cultural issues, both locally as well as abroad, we settled on a new legislative regime which embraces the unique realities of families and children in Singapore.
The Bill really represents the culmination of these efforts. It attempts to do three things: (a) clarify the legal parenthood and status of children conceived through ART; (b) clarify the legal parenthood and status of children conceived where the wrong egg, sperm or embryo was used in the fertilisation procedure;
Page: 78
and (c) modernise laws relating to legitimacy and evidence of paternity.
The Bill does not go into or seek to regulate the provision of ART services in Singapore. Neither does it seek to deal with surrogacy issues. These will continue to be regulated by MOH.
I will now take the House through the main provisions of the Bill. The premise of the Bill is that a child conceived through ART should have at least one legal parent. The status of legal motherhood is governed by clause 6. The gestational or birth mother will be treated in law as the mother of the child. Clauses 7 and 8 govern legal fatherhood.
The Bill provides for several broad scenarios. Clause 7 deals with the situation where the gestational mother is married. The gestational mother's husband will be regarded as the legal father of the child where the husband is: (a) the genetic father of the child; (b) not the genetic father, but had consented to the ART procedure. Consent is presumed unless the contrary is proven; or (c) not the genetic father, did not consent to the ART procedure, but accepted the child as a child of the marriage, knowing that the child is genetically not his.
Clause 8 deals with the situation where the gestational mother is in a relationship with a man, as if he were her spouse. The Bill terms this man her "de facto partner". In such cases, legal fatherhood is premised on a court declaration of parenthood, not the operation of law. The "de facto partner" will not be treated as the legal father of the child, unless an application is made to the Court, and the Court so declares under clause 8.
The circumstances under which such Court declarations may be made are similar to those governing the legal fatherhood relating to husbands under clause 7. In terms of what the Court has to consider, the welfare and best interests of the child is the Court's primary consideration when exercising its discretion.
Clause 10 sets out a list of factors which the Court may have regard to when considering what is in the welfare and best interests of the child. These include the child's wishes and the bond developed between the child and any of the parties to the proceedings. If the gestational mother subsequently marries her de facto partner after the ART treatment, the rules on legal fatherhood pertaining to husbands under clause 7 will also apply.
Page: 79
As for the position of gamete donors, clause 5 dissociates parenthood from biological descent. Sperm or egg donors are not to be automatically treated as parents of the child except as provided for by the Bill.
Let me now turn to the legal parenthood and status of children conceived as a result of an ART mix-up. The wrong egg, sperm or embryo used in the fertilisation procedure as a result of mistake, negligence, recklessness or fraud could take place. The Bill sets out the default position to ensure certainty, in the interests of the child. Absent an application to Court, legal parenthood would be determined as if the mix-up had not taken place. But any interested party – for example, the other sets of parents in the mix-up – can apply to Court for a declaration that he or she be declared as the parent of the child. This particular provision is unique to Singapore. Through this, we seek to achieve two objectives: (a) ensure that the child will not be left parentless if no one wants to take care of the child after discovery of the mix-up; and (b) give the Court flexibility to declare parenthood where a different result would be in the best interests of the child.
We also seek to make amendments to the Evidence Act and Legitimacy Act. These are relevant to all children, whether conceived naturally or through ART. Let me turn, first, to the Evidence Act. Amendments to the Evidence Act will modernise our laws relating to evidence of paternity. Clause16 repeals and re-enacts section 114 of the Evidence Act. This enables relevant scientific evidence, for example, DNA evidence, to be produced before a Court to displace the presumption of paternity under that section.
If you turn to the Legitimacy Act, clause 17 amends section 3(1) of the Legitimacy Act. This was a suggestion of the Singapore Academy of Law (SAL) Law Reform Committee. Previously, an illegitimate child whose father is domiciled in Singapore at the date of marriage can be legitimised by the subsequent marriage of his parents. Now, this rule is extended to children whose mothers are domiciled in Singapore at the date of marriage. The effect is legitimation of the child where either the father or mother has a strong connection to Singapore. Mr Deputy Speaker, I beg to move.
Question proposed.
Mr Deputy Speaker, I support this Bill. Science and technology have improved our lives and enabled us to live
Page: 80
in a manner our forefathers could not even conceive. And every time we think we have reached our capacity, we are often reminded that that capacity may well be limitless.
So it is with Assisted Reproduction Technology (ART). It is a cold, clinical term. What it really represents is HOPE – hope for childless couples around the world and in Singapore to bear children, to hold their own flesh and blood in their arms, and to experience the joys of parenthood. It has been said that life affords no greater responsibility, no greater privilege, than the raising of the next generation. As a father myself, I cannot agree more. Becoming a parent is a life-changing and humbling experience.
It is, therefore, no wonder that many have turned to ART in the hope of becoming parents. And the Government has supported the hopes of such couples. In 2008, the ART treatment co-funding scheme was introduced to subsidise the cost of ART. This scheme was further enhanced earlier this year. As of March 2012, a total of 3,841 couples had benefited from the subsidy. And I have no doubt that the numbers will continue to rise. All this has resulted in more births in Singapore using ART – from 720 in 2006 to 1,308 in 2010. It is the same story around the world, with reported increases in countries where such facilities are readily accessible. In Japan, for example, there were 26,680 babies born through IVF in 2009, compared to just 11,119 in 1999. So, more than double in 10 years.
When this Bill was introduced, some raised concerns about the ethical issues it gives rise to and such concerns are inevitable. This Bill deals with controversial issues, such as conferring parental rights to a man even if he is not the sperm donor. It also gives a man parental rights where he is not married to the mother at the time of the procedure. There will be concerns that we are sanctioning ART for single women and compromising the family unit.
As difficult as these issues may be, it bears reminding that this Bill is intended to tackle real life problems. ART exists and ART procedures are being carried out. And there are real situations and circumstances where the law is unclear or unsettled on paternal rights and legitimacy of the child. One example is where the husband or partner of the gestational mother has not given consent to the use of his sperm. Another example is where the wrong egg or sperm is used in the fertilisation procedure, as has happened in Singapore.
As the use of ART becomes more prevalent, we will have to confront disputes similar to those which have arisen elsewhere. Let me cite a few
Page: 81
examples around the world.
In the United Arab Emirates (UAE), a lady became pregnant after her divorce, using her ex-husband's previously-stored sperm from a failed IVF treatment. The man applied to disown the child because the woman did not obtain his consent for the procedure and he failed in court.
If this Bill becomes law, and a similar dispute arises in Singapore, the ex-husband would not be the legal father of the child, given that he was neither married to the lady nor her "de facto partner" at the time of the fertilisation procedure, and he was not her "de facto partner" after the procedure.
In Australia, a couple lived together for six months before breaking up in 2002. They remained friends and began IVF treatment in 2008 after the man agreed to donate his sperm. The man attended the birth of the child and visited him regularly, until the relationship between him and the mother broke down in 2011. A Family Court judge awarded the man equal parental shared responsibility of the two-year-old boy.
Should a similar dispute arise in Singapore after this Bill is passed, the man would not be the legal father of the child, given that he was neither married to the mother nor was he her "de facto partner" at the time of the fertilisation procedure and he was not her "de facto partner" after the fertilisation procedure either. Further, the man may not even be able to make an application to determine parenthood under section 10 since he does not fall within the ambit of section 10(2).
In the UK, in Leeds, there was an IVF mix-up with the result that a lady's eggs were fertilised with the sperm of the wrong man. That man and his wife were undergoing treatment in the same clinic at the time. The lady had twins as a result of the IVF procedure. The biological father applied for access to the children in 2002. The Court decided that he was the legal father of the twins.
Should a similar dispute arise in Singapore after this Bill is passed, the default position under section 9 of the Bill is that the gestational mother and her husband will be the legal parents of the child. The biological parent will, however, be able to make an application to the Court to contest this position by virtue of section 9(3). Section 9(4) states that this application must be made within two years of the mistake, negligence, recklessness or fraud being discovered.
Page: 82
So, whatever the religious, ethical or other sensitivities which may arise, we should not shy away from addressing the difficult problems that will arise. We should clarify the law so there will be a measure of certainty. There must be clear rules that we can follow in times where emotion is likely to reign.
I, therefore, commend the Ministry for tackling these difficult issues. Like any good piece of legislation, the Bill seeks to anticipate as many possible scenarios as possible, and tackle them in a clear, consistent manner. Nonetheless, I wish to highlight three aspects of the Bill that may require further consideration.
First, the extra-territorial application of the Bill may give rise to a conflict of laws. The Bill does not only apply where the child is born in Singapore. By virtue of section 3(1)(b), it also applies to persons, such as the gestational mother of the child, husband, donor of the egg or sperm and other connected persons who are domiciled in Singapore. Problems may arise where the ART procedure is carried out overseas and the child is born in another country. Singapore law and the law of the country where the child was born may apply conflicting laws on the issue of parenthood. How will such conflicts be resolved? Given the increased mobility of Singaporeans and the availability of ART overseas, this is a problem that we may encounter. I hope that the Minister will clarify this point.
Second, sub-sections 7(3)(d) and 7(6)(e) of the Bill provide that the husband or "de facto partner" at the time of the fertilisation procedure may be treated as the father of the child where he has "through a course of conduct accepted the child as a child of the marriage or of the relationship". This applies, notwithstanding the fact that he did not consent to the fertilisation procedure and did not provide the sperm. While I understand that these provisions must be applied flexibly, it is uncertain what conduct or actions will be sufficient to constitute acceptance.
And there are important consequences: the interpretation of the phrase determines whether a man owes legal duties to the child and, if so, when he becomes subject to these duties. Furthermore, section 11(c) sets out that a child shall be treated as legitimate from the last date a list of events occurs, one of these events being "the date the child is accepted as a child of the marriage by the man who is to be treated as the child's father".
Section 11(c) is phrased differently from sections 7(3)(d) and 7(6)(e). Nonetheless, I assume that section 11(c) really provides the same condition of "acceptance" of the child by the man through a course of conduct. If so, the
Page: 83
interpretation of this phrase affects the legitimacy of the child as well. Given that so much turns on the interpretation of this phrase, I hope that the Minister will shed some light on what actions are intended to demonstrate acceptance. I accept that the Minister cannot give an exhaustive list, but some guidance would be useful to help interpret the law.
My last point is that section 10(6) may be worded too narrowly. Section 10(6) allows an application to Court to determine the parenthood of a child to be opposed by either the child or any person who is treated or is seeking to be treated as the parent of the child. In contrast, section 10(3) provides that an application to determine the parenthood of a child may be made by "any other person" who has "sufficient interest" in the parenthood of the child.
To put it simply, the scope for making an application is wider than that for contesting an application. As a result, someone with an interest in the well-being of the child, but who is not seeking to be treated as the parent of the child – for example, an older sibling or grandparent – will be unable to contest an application. This appears to be an anomaly. In any event, we should allow the Courts to determine who should be allowed to be heard and not seek to restrict its jurisdiction. I, thus, urge the Minister to consider widening the scope of section 10(6) to allow persons with "sufficient interest" in the parenthood of the child to contest an application.
To conclude, Mr Deputy Speaker, this Bill deals with real life problems that we cannot and should not ignore. The issue of legal parenthood is far more than a question of legal status. It has a direct impact on lives and families. This Bill is, thus, both practical and timely. I support the Bill.
Mr Deputy Speaker, this Bill is timely with the growing popularity of Assisted Reproduction Technology (ART) in Singapore. We now have more ART children in Singapore. I understand that in 2006, 720 children were conceived through ART, a figure that doubled to 1,308 in 2010. The number of ART cycles done has grown from 2,432 in 2006 to 4,672 in 2011. These figures reflect the growth in demand and supply of ART-related services. ART is a growth industry, indeed, but it also raises questions over the genetic, gestational and social aspects relating to procreation on children, parents and their families.
Page: 84
Through ART, the likelihood of separation between the gestational, social and genetic parenthood is greater. The legal regime that governs who is the parent of a child in a non-ART birth is relatively uncontroversial in our family law. The woman who gives birth to the child is the mother and the man presumed to be the genetic father is the father. With ART involving the use of donated sperm, such children would be raised by a man who is not their biological father. This separation of social and genetic fatherhood is inevitable in such a situation.
Sir, as I see it, one objective of the Bill is to promote heterosexual nuclear families with the father as the basis for defining and organising family life. Underlying the Bill's regulation of fatherhood is primarily the view that a father is the person with genetic ties to the child. But the Bill does not take a strict view on this and the various provisions in clause 7 provides recognition of social fatherhood – that what makes a parent is not just biology alone but about the everyday activities relating to the care and custody of a child such as meal times, cleaning, washing, education and the like. This course of conduct approach is a sensible one to take since it privileges substance over form in determining legal fatherhood.
The Bill is relatively straightforward in spelling out how parents of an ART child is to be recognised in selected situations. I welcome the drafting intent of ensuring that the ART child does not have a single parent, even though the child's mother has a spouse. The proposed parenthood regime avoids situations in which an ART child would have a set of parents who are not in the same marriage or be left effectively parentless.
In this regard, clause 8 is to be welcomed for granting the High Court the flexibility to take into account specific circumstances on a case-by-case basis. There is only so much that legislation can do in such a situation, but case law can augment what it means by "the best interest of the child".
Sir, I find the Bill interesting for what it does not cover. I recognise that this is deliberate as the Bill does not seek to regulate ART services and treatment in Singapore which comes under the purview of the Health Ministry. Even then, this Bill in seeking to provide for the legal parentage and status for children conceived through ART has a limited scope. For example, the Bill is clear that it only applies to heterosexual couples, whether married or not to each other at the time of the fertilisation procedure. The "de facto partner" in the Bill refers to the male partner and, as such, excludes same-sex couples.
Page: 85
I have several questions which I hope the Minister can enlighten us on. One, does the Act apply in cases where the fertilisation procedure is carried out overseas, but the child born in Singapore? Two, clause 4 relates to the giving and withdrawing of consent to a fertilisation procedure. However, it is silent as to whether the consent can be withdrawn after the fact, that is, after the fertilisation procedure has been carried out and before the child is born. Three, the Bill does not specifically address the issue of surrogacy. Again, would it be correct to assume that a child born to a surrogate mother from a fertilisation procedure overseas does not come under the purview of the Act? Going by a plain reading of clause 6, however, it would appear that gestational surrogate mother would be treated as the legal mother of the child.
Sir, in situations where the Act does not apply – such as in surrogacy – there arises the real possibility of uncertainty and conflict over who the child's parent or parents are. The changing trends in our society point to more couples wanting to achieve their desired families even if they do not conform to the traditional family form of husband, wife and biological child.
I appreciate that the above matters are not under the ambit of this Bill. They are very complex and controversial issues, and defy the jurisdictional boundaries between the Law and Health Ministries. But they also highlight that what the Bill and other legislation on our statute books do not deal with are also life issues that present real concerns. They are very much the proverbial "elephants in the room". As a society, I hope we can engage them proactively, rather than leaving such children in a state of legal limbo.
The House would also be mindful that this Bill can be criticised for not being pro-life by not adequately promoting respect for the embryos, sperms and eggs, since ART involves creating, transferring, freezing and the discarding of embryos. These ART processes connect with the right to life issues and for which I recognise that the pro-life and the pro-choice advocates in Singapore contest passionately over.
We cannot hide from the reality that not all Singaporeans share similar religious, moral and ethical concerns. For some Singaporeans, as Mr Hri Kumar had pointed out, ART is critical to their having their own children. Objectors to reproductive autonomy rights will, however, appreciate that it is important, given the boom in the fertility business, that we properly regulate the regime governing the legal parentage of ART children. Not to do so will render it injustice to these children.
Page: 86
Sir, this Bill is primarily procedural in that it prescribes how fatherhood will be accorded in different situations. Yet, this Bill does have a signalling effect. It is "loaded" in that there is an inherent moral dilemma in providing the legal architecture that the Bill seeks to provide. For those who object to ART, creating this regime can be perceived as signalling a wider approval of ART and encouraging the expansion of ART because it reduces the "planning costs" for the stakeholders. For example, where the mother and male partner are not married to each other and the child was not brought about with the sperm of the partner, they can still avail themselves to the Act.
On the other hand, by not providing the legal architecture, we would also be prolonging the legal uncertainty, and generate potentially contentious and heart-rending litigation over who has parental rights over an ART child.
The Bill conveys the idea of the need for a father and families, and implicitly creates the notion of the inferiority of other family types. This is a very complex matter and I worry that this Bill raises more questions than answers. Not so much relating to the legal parentage of the child but to other matters.
This Bill makes an important first step but much more needs to be done to develop a working consensus that takes cognisance of individual rights, and the delicate balance between the individual and society and public policy.
Sir, ART facilitates the formation of alternative families, for example, without sexual intimacy, where the mother and male partner are not married to each other, or with two parents of the same gender. We have to deal with the greater uncertainty and the ambiguity of kinship relations including those of motherhood and fatherhood. Legal ambiguity in such scenarios would not be in the best interest of the child. In this regard, I reiterate my call earlier this year that we seek to promote and create greater awareness of adoption as an alternative to ART for married couples. This is not to suggest that adoption is the panacea. Sir, notwithstanding the concerns that I have, I support the Bill.
Thank you, Mr Deputy Speaker, for allowing me to speak on this Bill. This Bill will play an important role in strengthening the protective layers around Assisted Reproduction Technology (ART) and reassure parents going into it that there is enough legal cover to assist them should anything go wrong.
Page: 87
I feel that as we try to encourage the birth rate in Singapore to improve, we should also focus more resources into making assisted reproduction and adoption as attractive and viable options. This Bill certainly helps us work closer towards that goal as well.
I only have two minor points to suggest that may help in the overall effectiveness of this Act. Firstly, in the section of interpretations, on the definition of "de facto partner", I would like to suggest that the condition that the gestational mother be in a live-in relationship with her partner at the point of their application of ART be inserted into this section. This provides some certainty that the eventual parents of the child have taken a mature and responsible decision of having the child and also to provide some certainty that both parents will have joint domestic responsibility of the child eventually.
My other point refers to section 10 of the Bill, which constitutes the application to determine parenthood. In sub-section 7(b) of this section, it has specified the factors that the Court may use to consider the welfare of the child to determine the parenthood of him or her.
Earlier in the Bill, it was also provided that the Court may choose to declare that the "de facto partner" of the child's mother as the father even though he did not consent to the gestational mother undergoing the fertilisation procedure initially, but did nevertheless, act as if he had accepted the child. We can all agree that a man should act in this manner on goodwill and humanity. I feel that this should then be reflected as a consideration as well under section 10: by reflecting goodwill by non-biological parent as a factor that the court may use to consider the welfare of the child to determine the child's parent. This is especially when the child's biological relationship with any of the parties has been listed and could prejudice a decision in favour of the biological parent. It is not always true that a biological parent may ensure that the child's welfare is maximised and therefore the goodwill of the non-biological parent should also be considered.
All in all, Sir, I support the Bill for being comprehensive in its consideration of a sensitive and important topic. Thank you, Mr Deputy Speaker.
Mr Deputy Speaker, since the first IVF baby was born, there has been tremendous development in the field of Assisted Reproduction Technology (ART). Societies around the world have
Page: 88
embraced this new technology. Technological advancement must come hand in hand with social and legal advancement. The word "parent" may no longer mean the same thing as it did before the advent of reproductive technology. Hence, this Bill is an urgent and long-awaited response to acknowledge, clarify and protect the status of children born out of IVF technology. It is ironic that it took an IVF mix-up for this law to be amended, but as they say, better late than never.
As I am neither a doctor nor a lawyer, please excuse me if my speech has more of a layman's approach. Allow me now to distill my speech into three broad points.
The first point is to expound on why we need this Bill and to recognise that this is a response to the changing socio-economic, medical and family trends in Singapore.
The second point is to state that for this Bill to be meaningful and relevant, it should not be solely reactive. It should be forward looking. This is because it will become the eventual framework supporting new areas in family law surrounding the family unit derived from medically assisted reproduction. Hence, it should cover some of the future contingencies that many Singaporeans are already considering or already carrying out.
The third point is to consider offering egg-life extension options to more women as an extension of IVF. Whilst there has been tremendous advancement in the field of IVF technology, the one constant that has not changed is the ticking of a woman's biological clock. This puts time limits on our fertility window.
On point one, I am told by lawyers that this Bill has taken 16 years to be presented in Parliament in its current form. The idea of a statute to clarify the status of children born though artificial conception was first mooted in 1997 but it took the recent IVF case to get us to where we are today. Hence, there is urgency in updating our laws.
The Bill recognises that there is the option and availability of such options here and this is because there is a growing trend of families choosing such options because women are marrying later, having children later and as a result having less children than they would like to have. In a recent survey done by NPTD, the Marriage and Parenthood Study 2012, 84% of married respondents said they wanted to have two or more children, but only 51% have two or more
Page: 89
children. The statistics I mentioned that Singaporean women are marrying later and as they marry later, they have children later. And that the number of ever-married females remaining childless is growing. These childless numbers are rising and they may not necessarily be voluntary. Hence, it comes as no surprise that more couples and more women would turn to such technology.
A recent report from Clearstate – Clearstate is part of the Economist Intelligence Unit – states that 71% of respondents to a recent survey they did here indicated they would consider IVF if the need arose. According to MOH, the number of women opting for ART treatments had increased from 1,933 to 3,271 between 2006 and 2009. The number should be even higher now. This number is quite a large percentage of our annual birth rate.
On point two, I had asked that for this Bill to be relevant, it should not just be responsive but also forward looking. Which means it needs to be more comprehensive and to anticipate other contingencies resulting from the growing number of new techniques that couples in Singapore are adopting.
Here, I will quote from some research done by an independent, non-profit research group called BELRIS or Bioethics Legal Group for Reproductive Issues in Singapore:
*BELRIS made a point that in relation to the welfare and best interest of a child, the "gestational test is arguably the most straight-forward approach" in defining who the "mother" is, as is the very broad definition of father in the Bill. They believe that a gestational-based definition of mother, as well as the broad definition of father, may solve some more straight-forward problems. However, in the long run this definition may be short-sighted in the context of the rapidly evolving field of assisted reproduction.*
And, perhaps, an intention-based concept of parenthood would not only be more forward thinking but is also necessary. An intention-based concept of parenthood places emphasis on the fact that at the point where agreement is reached, all parties involved intend that any child born of the arrangement is to be regarded as the child of the commissioning couple upon birth. Why? Because as I have said, more childless couples or unmarried parents are choosing these options to procreate.
Allow me now to share some examples of this trend and discuss how this Bill may not be adequate to address such contingencies.
Page: 90
Contingency number one: women who freeze their eggs overseas. The Minister mentioned rightly that some of these issues are to be addressed by MOH. I have to bring them up here as this Act does impact the definition of the father and the mother. For this contingency, doctors tell me that more Singaporean women are availing themselves of the services of overseas IVF centres. Some single women, who have the means, may elect to freeze their eggs overseas as they are not allowed to do so in Singapore under our Licensing Terms and Conditions for Private Clinics.
Whatever the reasons for their choice, the reality is elective egg-freezing overseas is a medical option open to Singaporean women. Often, these women choose this rather difficult option as they wish to have a child but have not found the right partner. If she does marry later, she and her husband then have the option to conceive a healthy baby using the frozen eggs. If she does not marry, she may still choose to have a child perhaps with the help of an anonymous sperm donor. The Bill, however, presumes either a "de factor partner" or a husband, but not an anonymous sperm donor.
Contingency number two: how about in the case where the embryos are derived from a married couple where the husband unfortunately passes away during the process? Can such embryos which are in storage in Singapore be used?
The third contingency is the use of a surrogate abroad. The growing trend of Singaporean couples resorting to surrogacy abroad. It would be ideal for the wife to be the gestational carrier of a child she wishes to have, but this may not always be the case. If a woman is not medically able to carry a pregnancy, the couple may choose to have a gestational surrogate overseas as surrogacy is not allowed here. The Bill in its current form leaves unclear the status of this child in relation to the Singaporean couple using a gestational carrier abroad. The outcome could be harsh for the couple if the child is, in fact, genetically the child of the Singaporean couple. So far, there has been no reported challenges regarding the status of such children, but if there were to be one, these children could be at risk of being the subject of a protracted legal battle.
Point three. My final point is about elective egg-freezing, which is not allowed in Singapore. In fact, we use the term "social" egg-freezing here instead, which may wrongly imply that this is not a medical term. In other jurisdictions, age-related fertility decline is deemed to be a medical condition and, hence, elective egg-freezing is seen as "preventive medicine". It allows women to
Page: 91
extend and protect their fertility.
This is not allowed in Singapore unless the woman is already married, under 45 years old, or undergoing serious treatment like chemotherapy. In contrast, this procedure is available in neighbouring countries like Thailand and Malaysia. These differences in governance could lead to regional arbitrage as our citizens will be forced to go to more permissive environments to receive these medical treatments, leading to what is now termed "reproductive tourism". Our current laws are not yet adequately built to address these trends.
In closing, I just want to say, I believe in the importance of a traditional family unit. I am well aware that the Government has to do a delicate balancing act in recognising and valuing the views of social conservatives alongside the reality of what is happening in society due to the advancement of medical science. This balance is not easy. Yet, often, progress means the reinvention of concepts and changing trends may mean a new understanding of what constitutes the meaning of what is a "traditional" family unit.
This Bill may be a late start, Sir, but it is an important start in how we recognise our changing demographic trends and how we address the prickly parenthood issues that may arise from the increasing use of ART. Whatever this Bill tries to achieve, let us not forget the most important thing here is that a child is being born and this life is sacrosanct. Whatever the Bill tries to achieve, we should do our best to safeguard the well-being of this child. Allowing this child to grow up in a safe and healthy environment is key. Let this be the bedrock and foundation behind every decision we need to take going forward.
Ms Ellen Lee (Sembawang) (In Mandarin): [Please refer to Vernacular Speech.] Mr Deputy Speaker, with regard to this Bill, I support it and I have the following comments.
According to MOH figures, the number of children born through Assisted Reproduction Technology (ART) rose significantly from 2006 to 2010. Our laws do not have specific stipulations on the legitimacy of parenthood. For example, if a woman gives birth to a child conceived from a sperm donated by a man other than her lawful husband, or if there is a mistake in the insemination process, then it will become difficult to determine who the legitimate father of the child is. Undoubtedly, this is a legal loophole that must be plugged. That is
Page: 92
why this Bill is of utmost significance to children born through ART.
From the perspective of the unborn child, I agree that the laws must specify who the parents of the child are so that the unborn child can also enjoy the same legal rights of receiving care and protection from his parents.
This Bill is a reminder that even as we use technology to solve problems of mankind, we must also spare a thought for the repercussions that technology may bring as well as the implications for our future generations. Our country is built on the premise of fairness and equality and therefore we must use our laws to ensure that children born through ART will also have the equal right of receiving care and love from his parents, just as we do for all citizens.
Clearly, this Bill's objective is not to allow any young life, in the absence of his or her voice, to become an option for adults to decide whether they want to fulfil their legal responsibilities or not. Once we pass this Bill, the legitimate husband of the wife, as long as he has consented to his wife undergoing ART, even if she were to accept the sperm from another male donor; or if he accepts that the child is his, then he will be specified as the legitimate father of the child. And that means he will have to discharge the legal responsibilities as a father.
Singapore is a relatively conservative Asian society. Such a peculiar father-child relationship is something that is quite alien to us. How do the children, when they grow up, understand that there are differences vis-a-vis other children and how will his parents explain their actions for using ART? And if the child wants to know who his father is, will his parents be mentally prepared to answer that question?
The Government, in January this year, announced higher subsidies for those who are unable to conceive so that they can make use of ART to fulfil their dream of having children. Personally, I suggest that the Government give further subsidies for these couples to undergo training in child psychology so that they will understand the kind of issues that their children will face in the future. They should also understand the kind of academic pressure that their children will face so that even if they want the best for their children, they should not spend so much time on getting various tuition teachers, piano teachers or swimming coaches for the children.
According to media reports, there are some Singaporeans who have gone overseas for ART and they stated that they wanted a son. That is because Singapore does not allow couples to do gender selection. This demonstrates
Page: 93
that the conservative mindsets in Singapore are still deep seated. The older the parents are, the higher their expectations of the child. I think many parents are emphasising too much on academic results and this has caused a lot of stress for the children. Meanwhile, they have neglected the holistic character development of their children. Hence, we need to put more emphasis on how to raise our children correctly.
My last point is regarding feedback that I have received from my residents. In Woodlands, there is a resident who noted that in January 2013, we announced higher subsidies for procreation and now we are discussing the ART Bill. People get the impression that the Government is focusing too much on procreation measures. He thinks that there is a need to discuss in the community the real reason behind low birth rate – the reason is that young couples in the more fertile age are too focused on their career success, and they do not want to consider marriage, family, children and things that are closely associated with their own happiness. That is why many people are marrying late in life. Late marriages have caused some couples to be unable to conceive; they subsequently pin their hopes on ART. This resident thinks that higher medical subsidies will encourage more young people to marry late.
We also have to take note of the possible social problems that ART may bring in the future, and the issues that we discuss in this House may also become more complicated. I agree with that view and I hope that the different Ministries will conduct seminars in the community and focus on the issues that ART may lead to. We should encourage young people to focus on families and children and not just on their career success.
Sir, I repeat my support for this Bill.
Mr Deputy Speaker, thank you for letting me speak on the Bill. I just have five brief points for the Minister to consider.
First is on clause 9 of the Bill which deals with IVF mix-up situations. I compared it against the four other alternative options put forward in the Ministry of Law's 2012 Public Consultation Paper, and in my view, the current option put forward in this Bill strikes as good a balance as possible between securing certainty on the one hand, both for the parents and the child and, on the other hand, retaining flexibility in the form of the court's discretion to
Page: 94
achieve an outcome in the best interests of the child.
It also sits more comfortably with the general nature of our social fabric: we are still largely an Asian, traditional society. Alternative option 4, for instance, which could result in a child having as many as four legal parents because of an IVF mix-up would, in my view, fit rather poorly in our context.
Sir, my second point is about the two-year limitation period for making applications to court to determine or challenge the parenthood of the child, set out in clauses 9(4) and 15(3). This two-year period is determined from the time that the IVF mix-up is discovered. Sir, this could happen anytime and when the child is at any age. I would imagine this could suddenly create a lot of uncertainty and anguish for the people affected, including many adults, who were conceived out of IVF, since IVF has been around for over two decades.
Would it not be better to let this two-year period run, but with a cut-off for all interested persons when the child at the centre of the mix-up reaches a certain age, say, 21 years of age? And after that age, only the child alone can make such an application. This will provide greater certainty on issues such as parental obligations and maintenance, inheritance and succession, and so on. I hope the Ministry can consider this.
The third point is directly about IVF mix-ups. It happened in Singapore in 2010, in the Netherlands in 1993, in the UK in 2002 and so on. Each time such cases get publicly reported, they generate tremendous public and media interest, but these are really incidents of immense personal anguish and embarrassment for the families concerned. So, while it is important to ensure that we have the legal framework, as we do now, to handle such cases if they ever do recur, it is far more important to ensure that there are stringent regulations and rigorous safeguards upstream in our ART centres to try to prevent such occurrences in the first instance.
The fourth point is a point of clarification on the interpretation of clause 3(1)(b)(v) of the Bill, which says that the Bill will apply if "the person who consented to the fertilisation procedure" is domiciled in Singapore on the date of the birth of the child. For the purposes of clauses 7 and 8, both the husband as well as the "de facto partner" are already covered under (b)(ii) and (iii), so I am not quite clear which group (b)(v) would cover. And in the interest of ensuring clarity of the law, could I invite the Minister to shed light on this, please?
Page: 95
My fifth and final point is about clause 16, which makes a related amendment to section 114 of the Evidence Act, and clause 17, which makes a related amendment to section 3 of the Legitimacy Act.
On the amendment to the Evidence Act, I think no one would disagree that the significant developments in technology, the irrebuttable presumption in that Evidence Act section was rendered meaningless many years ago and it is correct to fix this piece of legislation now.
On the amendment to the Legitimacy Act, this is, in my view, a progressive amendment. As it currently stands, section 3 of that Act allows an illegitimate child to be legitimised by the marriage of his parents only if his father is domiciled in Singapore at the time of marriage. This amendment now permits legitimisation by marriage if the mother is domiciled in Singapore at the time of marriage. While we recognise that elsewhere, traditional common law choice of law rules may still reflect a historical bias for the father's domicile, this amendment now permits legitimisation by marriage if the mother is domiciled in Singapore at the time of marriage, which is, ultimately, better for the child.
Sir, in closing, I would like to commend and continue to encourage the important task of law reform work, where officers of the Ministry of Law's Legal Policy Division work closely with the Legislation Division officers in the Attorney-General's Chambers and the Law Reform Committee of the Law Society as well as with academics and practitioners to continually comb through our corpus of laws to identify, to refresh and fix outdated or outmoded legislations. This is an important task. Their continued hard work will ensure that Singapore's laws remain relevant and up-to-date. Sir, with that, I support the Bill.
Thank you, Sir. I thank the Members for their suggestions and comments.
First, let me turn to the genesis of the Bill and IVF mix-ups. Ms Tan Su Shan made a few comments on the Bill being finally here and the reasons for that. The main reason for the Bill being introduced is the growing number of children conceived as a result of ART. Possible reform in this area was studied since early 2010, before the Thomson Medical Centre's IVF mix-up. In the course of the last two and a half years or so, we had also considered the Law Reform
Page: 96
Committee's 1997 Report extensively.
As regards the ART processes, we accept Mr Desmond Lee's comment that we need stringent regulations and rigorous safeguards. It is important to uphold the integrity of the ART process.
The existing safeguards are in the licensing terms and conditions (LTCs) which MOH issues under the Private Hospitals and Medical Clinics Act. The LTCs set out the requirements on laboratory procedures to ensure identification of patients and specimens at every critical step of the ART procedure. All ART centres must comply with these standards. MOH regularly conducts audits to ensure compliance.
Turning now to parenthood, Ms Tan Su Shan advocated intention-based parenthood. While she did not specifically say as such, I think in essence, this would lead to an argument for surrogacy, because the natural conclusion of her suggestion is that an ART child would be regarded as the child of the commissioning couple if all the parties involved so intended.
As I have said in my Second Reading speech, this Bill is a technical one dealing with the parenthood of children born through the ART process. It is not intended through this Bill to address the larger question of surrogacy. That is an issue within the purview of MOH. It has also been raised with them before.
As Assoc Prof Eugene Tan pointed out, the real point of this Bill is to make sure that children who are conceived through the ART process are not left in a legal limbo. The gestational mother would be treated in law as the legal mother. The husband or "de facto partner" may be treated as the father if the conditions that are set out in the Bill are satisfied. It is also open to the couple to adopt the children.
Ms Tan Su Shan gave examples of possible areas where the Bill may have gaps. She spoke about egg-freezing by women who may wish to have the option to conceive later. She also asked if stored embryos from married couples, where the husband unfortunately passes away, may be used in Singapore. This Bill does not seek to deal with the rights over stored embryos. It is not within this framework. Medical related matters, including procedures and practices provided by AR centres, are also under MOH's purview.
MOH has certain licensing terms and conditions. AR centres are required to obtain written instructions from married couples on the use of unused embryos
Page: 97
in the event of death of a spouse. There is no legislation on the legal status of embryos.
As regards to the use of eggs which were frozen overseas for later use, on the assumption that the subsequent embryo is subsequently implanted into the woman herself, the woman is the legal mother, as she is the gestational mother. If she had a husband or "de factor partner" at the time of the fertilisation procedure, he can be the legal father if the conditions stated in the Bill are satisfied. If the husband or "de facto partner" became so only after the time of fertilisation, he will not be entitled to be the legal father. Such a gentleman will be in the same position as a man who marries a woman with naturally conceived children from previous relationships. So, he will be the step-father.
We need to be clear as to what the Bill seeks to cover. The Bill does not seek to address the legality of egg-freezing. Members, including Ms Tan, may have broader issues but those have to be conveyed to MOH.
As regards Ms Tan's comment on "reproductive tourism", again, insofar as it touches on surrogacy and its legality, you have my answers. We recognise that the Bill has got to be forward-looking. The Bill is technology neutral. It focuses on key principles rather than technical definitions and recognises that as social consensus changes, the laws have to change and adapt, insofar as it is within my Ministry's purview.
Assoc Prof Eugene Tan questioned whether consent can be withdrawn after the fertilisation procedure and before the child was born. Consent cannot be withdrawn. If you look at clauses 7 and 8 of the Bill, consent must be given "at the time the fertilisation procedure was carried out".
Mr Hri Kumar Nair asked what conduct or actions constitute acceptance. The lawyer's answer is that acceptance has to be inferred through a "course of conduct". Now, Mr Nair knows that "course of conduct" has come up before the Courts on several occasions. It is neither useful nor right for me to try and define what amounts to a "course of conduct", for instance, whether it is a single act, or multiple acts, or a series of acts. We ought to leave this determination to the Court, because the primary factor is the welfare and best interests of the child. However, acceptance by the father or intended father must be with the knowledge that the child is not genetically his.
I prefer not to limit the Court's discretion by laying down fairly prescriptive rules as to what course of conduct will or will not amount to acceptance. An
Page: 98
example of acceptance will include the man taking care of the child, paying for maintenance, upbringing and so on.
Turning to applications for Court declarations of parenthood, Mr Hri Kumar Nair's point was that the scope for making an application for a Court declaration of parenthood under clause 10(3) of the Bill is wider than the scope for contesting the application under clause 10(6) of the Bill. Someone with an interest in the well-being of the child, but who is not seeking to be treated as a parent, for example, an older sibling or a grandparent, will not be able to contest an application because that is limited to those who can be parents.
Clause 10(3) is intended to cover situations where potential candidates for parents cannot or do not wish to apply for a Court declaration of parenthood. In such cases, third parties are given the standing to apply to Court to determine the parenthood of the child as it is in the best interests of the child that parenthood is determined. For example, if all the potential candidates for parents have passed away, and there is an estate and you need to determine whether the child is a beneficiary, you might allow someone else like a trustee to apply to Court in order to determine the parenthood so that you know what the child is or is not entitled to.
A different situation applies when there is already an application for declaration of parenthood under clause 10(6). The views of other persons who have an interest in the well-being of the child can still be heard, but not as parties or contestants to the application.
Clause 10(7) provides that the welfare and best interests of the child is the first and paramount consideration of the Court in its determination of parenthood. And under clause 10(7), the Court can consider "any other relevant matter". This can include the views of other persons.
Mr Dhinakaran called for "good-will by non-biological parent" to be included as a factor. The list of factors under clause 10 is not exhaustive. "Goodwill by non-biological parent" can be considered under the existing clause 10 factors. Now, the factors that can be considered are, namely, the bond which has developed between the child and non-biological parent; the ability of the non-biological parent to provide for the child's needs; and as an additional factor the Court deems relevant. So, the list of factors is broad enough.
Mr Desmond Lee suggested that in ART mix-ups, we should introduce a "cut-off" time for all interested persons seeking to make an application for a
Page: 99
Court declaration of parenthood when the child at the centre of the mix-up reaches a certain age, for example, 21 years. And after that age, only the child may make an application. Again, the approach we have taken is that the welfare and the best interests of the child is the paramount consideration. While that is so, the Bill is also about the rights and obligations of potential parents. It is in the interest of greater certainty vis-a-vis parental obligations and maintenance, inheritance and succession rights to allow applications and contests of parenthood after the child becomes an adult. Also, the age of the child and the fact that the child may be an adult are relevant factors that the Court can consider when hearing an application in an ART mix-up situation. That is the approach we have taken.
Mr Dhinakaran suggested refining the definition of "de facto partner" to include a condition of parties being in a "live-in relationship" at the time of the fertilisation procedure. The Bill requires the "de facto partner" to be "living in a relationship [with the gestational mother] as if he were her spouse". So, really, it is a quasi-spousal relationship that entails living together. Again, we prefer not to be prescriptive about this. We take a broader approach in terms of timing. A sperm donor who becomes a "de facto partner" subsequent to the fertilisation procedure could also apply to be declared father of the child.
Assoc Prof Eugene Tan commented that the Bill has limited scope. I said so in my Second Reading speech. The Bill focuses on a narrow and technical area. Its approach is to give more certainty on how the parenthood is to be determined.
On the issue of extraterritoriality, both Assoc Prof Eugene Tan and Mr Hri Kumar Nair are concerned about the applicability of the Bill where "foreign" elements were involved in the ART process. The Bill applies where the fertilisation procedure is carried out overseas but the child is born in Singapore. Under clause 3, the fertilisation procedure need not be carried out in Singapore. I have outlined the situations where the Bill will apply in my earlier speech. Even if those conditions are satisfied, under common law, a Singapore Court may refuse to hear a case if it is more appropriate for the case to be heard elsewhere. Every court has to determine which is the most appropriate forum and applicable law under common law principles. It is no different here.
Choice of law issues is a feature of legislation in other jurisdictions which deal with the status of ART children. For example, Queensland's Status of Children Act takes an even broader approach. This Act applies to all persons whether or not born in Queensland; and whether or not a person's father or mother has ever been domiciled in Queensland. In contrast, the Bill here applies
Page: 100
where there is a substantial nexus between the parties and Singapore. That ensures that the right persons are protected whilst precluding application of the Bill to persons with no connection to Singapore.
Mr Desmond Lee queried what group of persons clause 3(1)(b)(v) of the Bill is intended to encompass, since clause 3(1)(b)(ii) and (iii) provide for husbands and "de facto partners" respectively. Clause 3(1)(b)(v) is meant to address situations where there is an ART mix-up involving a person domiciled in Singapore, who does not fall within the other limbs under clause 3(1)(b). For example, there is a Singapore-domiciled husband and his foreign wife, Mr and Mrs A, and the fertilisation procedure is in Singapore. An ART mix-up occurs and Mrs A's eggs are wrongly implanted in a foreign woman, Mrs B, who is undergoing fertility treatment with her foreign husband, Mr B, in Singapore. Under such a situation, clause 3(1)(b)(i) to (iii) will not apply because the gestational mother and her husband, that is, Mr and Mrs B, are not domiciled in Singapore. Clause 3(1)(b)(iv) will also not apply because Mrs A is not domiciled in Singapore. However, clause 3(1)(b)(v) will extend the application of the Bill to Mr and Mrs A. So, we try to think of different situations.
Ms Ellen Lee's suggestions on increasing public education for ART and child-rearing, in general, we welcome that. We will inform MOH of her suggestions.
I thank Mr Desmond Lee for his comments on the amendments which the Bill makes to the Evidence Act and Legitimacy Act.
Sir, I would conclude by thanking the hon Members who have spoken in support of the Bill. Once again, thank you.
Are there any clarifications for the Minister for Law? None.
Question put, and agreed to.
Bill accordingly read a Second time and committed to a Committee of the whole House.
The House immediately resolved itself into a Committee on the Bill. – [Mr K Shanmugam].
Page: 101
Bill considered in Committee; reported without amendment; read a Third time and passed.
PAPERCUTS