High Court says paramount consideration for reversal of decision was child's welfare
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 18 Dec 2018
In a decision that it reached "with not insignificant difficulty", the High Court has allowed a gay Singaporean man to adopt his biological son, whom he fathered in the United States through a surrogate mum.
The 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.
In judgment grounds issued yesterday, the three-judge court stressed that 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," Chief Justice Sundaresh Menon wrote on behalf of the court, which also included Judge of Appeal Judith Prakash and Justice Debbie Ong.
"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 case's circumstances, 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".
The biological father and his partner, both Singaporeans aged 46, had cohabited for 13 years. They first approached the Ministry of Social and Family Development (MSF) to inquire about adopting a child, but were told it was unlikely to recommend adoption by a homosexual couple.
The man then flew to the US where, through in-vitro fertilisation procedures, the embryo bearing his sperm was transplanted into the womb of a woman who carried it to term for US$200,000 (S$275,000).
He returned here with the child, but a district court refused to let him adopt the boy.
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 judgment was reserved.
Lawyers from the Attorney-General's Chambers led by Ms Kristy Tan, in representing the Guardian-in-Adoption from MSF, disputed that adoption would advance the child's welfare.
Adding that public policy is a relevant concern in adoption applications, they pointed out that the present situation is entirely of the couple's own making "because they went to great lengths to circumvent the laws of Singapore to start a family unit".
However, the court found that while there is a public policy in favour of parenthood within marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made.
It held that an adoption order would increase the child's prospect of becoming a resident Singaporean, which will significantly enhance his sense of security and emotional well-being, and care arrangements. The court added that the Guardian-in-Adoption who 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".
Chief Justice Menon said given the circumstances, 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 policymaking that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into."
The boy's father said the family had spent many sleepless nights worrying about the judgment. "We hope that with the adoption order, it will increase the chances of our son residing in Singapore for the long term. Singapore is the only place we have known as home, and is where we wish to raise our family," he told The Straits Times.
Mr Koh, one of the lawyers who acted in the case, said: "This judgment recognises the important role of the family in the child's life, no matter the orientation of the parent, and found that an adoption order would be for the child's welfare."
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 18 Dec 2018
The 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.
In judgment grounds issued yesterday, the three-judge court stressed that 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," Chief Justice Sundaresh Menon wrote on behalf of the court, which also included Judge of Appeal Judith Prakash and Justice Debbie Ong.
"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 case's circumstances, 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".
The biological father and his partner, both Singaporeans aged 46, had cohabited for 13 years. They first approached the Ministry of Social and Family Development (MSF) to inquire about adopting a child, but were told it was unlikely to recommend adoption by a homosexual couple.
The man then flew to the US where, through in-vitro fertilisation procedures, the embryo bearing his sperm was transplanted into the womb of a woman who carried it to term for US$200,000 (S$275,000).
He returned here with the child, but a district court refused to let him adopt the boy.
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 judgment was reserved.
Lawyers from the Attorney-General's Chambers led by Ms Kristy Tan, in representing the Guardian-in-Adoption from MSF, disputed that adoption would advance the child's welfare.
Adding that public policy is a relevant concern in adoption applications, they pointed out that the present situation is entirely of the couple's own making "because they went to great lengths to circumvent the laws of Singapore to start a family unit".
However, the court found that while there is a public policy in favour of parenthood within marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made.
It held that an adoption order would increase the child's prospect of becoming a resident Singaporean, which will significantly enhance his sense of security and emotional well-being, and care arrangements. The court added that the Guardian-in-Adoption who 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".
Chief Justice Menon said given the circumstances, 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 policymaking that the other branches of government, in which the legislative imprimatur lies, have not stepped into or not yet prepared to step into."
The boy's father said the family had spent many sleepless nights worrying about the judgment. "We hope that with the adoption order, it will increase the chances of our son residing in Singapore for the long term. Singapore is the only place we have known as home, and is where we wish to raise our family," he told The Straits Times.
Mr Koh, one of the lawyers who acted in the case, said: "This judgment recognises the important role of the family in the child's life, no matter the orientation of the parent, and found that an adoption order would be for the child's welfare."
Social and Family Development Minister Desmond Lee addresses concerns over ruling in gay man's adoption case
By Rahimah Rashith, The Straits Times, 20 Dec 2018
Gay parents hoping to adopt their biological children may find it harder to argue in court that they are not "deliberately" going against Singapore's stance against same-sex family units.
This point was highlighted by Social and Family Development Minister Desmond Lee yesterday, in the wake of Monday's release of a High Court decision to grant a gay man's appeal to adopt his five-year-old biological child, who was conceived through commercial surrogacy in the United States.
The judges in the case had recognised granting the adoption would go against "our public policy against the formation of same-sex family units", but found a lack of evidence that the man had set out to deliberately violate it, Mr Lee said. "After the publication of this judgment... it may be harder for future applicants doing the same to argue that they did not intentionally set out to do so."
He admitted that since the ruling, concerns have been raised about the case's implications and whether it sets a precedent for the formation of same-sex families here. He said his ministry is studying the grounds of decision carefully before deciding on the next steps. "We will review our adoption laws and related policies, to see if they should be amended and further strengthened."
The biological dad and his partner, both Singaporeans aged 46, had cohabited for 13 years. After being told by the Ministry of Social and Family Development (MSF) that it was unlikely to recommend adoption by a homosexual couple, the man flew to the US, where he paid a woman to give birth to his baby.
Although not explicitly outlawed, such a surrogacy arrangement is not allowed in hospitals here.
The man, a pathologist, then brought the boy to Singapore, but his bid to adopt him was rejected by a district judge last year.
He appealed, and in judgment grounds issued on Monday, the three-judge court made it clear that its decision to allow the adoption 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".
While the court found that there is a public policy in favour of parenthood within marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made, wrote Chief Justice Sundaresh Menon in the judgment.
Yesterday, Mr Lee said: "LGBT (lesbian, gay, bisexual and transgender) persons have a place in Singapore society.
"At the same time, the Government supports and encourages parenthood within marriage, and does not support the formation of same-sex family units.
"This is the position that MSF takes in assessing adoption applications. The High Court has recognised that this public policy is a relevant consideration in adoption proceedings."
By Rahimah Rashith, The Straits Times, 20 Dec 2018
Gay parents hoping to adopt their biological children may find it harder to argue in court that they are not "deliberately" going against Singapore's stance against same-sex family units.
This point was highlighted by Social and Family Development Minister Desmond Lee yesterday, in the wake of Monday's release of a High Court decision to grant a gay man's appeal to adopt his five-year-old biological child, who was conceived through commercial surrogacy in the United States.
The judges in the case had recognised granting the adoption would go against "our public policy against the formation of same-sex family units", but found a lack of evidence that the man had set out to deliberately violate it, Mr Lee said. "After the publication of this judgment... it may be harder for future applicants doing the same to argue that they did not intentionally set out to do so."
He admitted that since the ruling, concerns have been raised about the case's implications and whether it sets a precedent for the formation of same-sex families here. He said his ministry is studying the grounds of decision carefully before deciding on the next steps. "We will review our adoption laws and related policies, to see if they should be amended and further strengthened."
The biological dad and his partner, both Singaporeans aged 46, had cohabited for 13 years. After being told by the Ministry of Social and Family Development (MSF) that it was unlikely to recommend adoption by a homosexual couple, the man flew to the US, where he paid a woman to give birth to his baby.
Although not explicitly outlawed, such a surrogacy arrangement is not allowed in hospitals here.
The man, a pathologist, then brought the boy to Singapore, but his bid to adopt him was rejected by a district judge last year.
He appealed, and in judgment grounds issued on Monday, the three-judge court made it clear that its decision to allow the adoption 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".
While the court found that there is a public policy in favour of parenthood within marriage and a policy against the formation of same-sex units, the welfare of the child would be significantly improved if an adoption order was made, wrote Chief Justice Sundaresh Menon in the judgment.
Yesterday, Mr Lee said: "LGBT (lesbian, gay, bisexual and transgender) persons have a place in Singapore society.
"At the same time, the Government supports and encourages parenthood within marriage, and does not support the formation of same-sex family units.
"This is the position that MSF takes in assessing adoption applications. The High Court has recognised that this public policy is a relevant consideration in adoption proceedings."
Clear stance on all forms of surrogacy needed
The Ministry of Social and Family Development (MSF) should take a clear stance against all forms of surrogacy in its review of the relevant policies and legislation on adoption and surrogacy (Gay man allowed to adopt surrogate son on appeal; and MSF to consider if policies, laws need to be reviewed; both Dec 18).
The High Court had observed that, from 2008 to this year, MSF oversaw 14 applications for adoption which involved the use of surrogacy.
Ten cases involved married couples applying jointly to adopt and were supported by the Guardian-in-Adoption.
The remaining four were, at the time of the hearing, pending investigation.
The Guardian recorded the payments that were made and what they were made for.
The court found that it was "unclear from the evidence whether there is a settled public policy against surrogacy at present and, even if there is, what that policy would be".
It added that "there is a case for some urgency" in determining the law and policy on surrogacy.
All forms of surrogacy commodify children, deconstruct motherhood and sever the bond between mother and child by treating the woman as an incubator.
Commercial surrogacy is also a form of human trafficking, involving the buying and selling of children.
As District Judge Shobha Nair pointed out in her judgment in the Family Court on March 8 this year, this is at odds with the principles of the Adoption Act, which prohibits the giving or receiving of any payment or reward in consideration of adoption.
Surrogacy contradicts the raison d'etre of adoption, which is to help children find the family they need, not help adults get the children they want.
Regardless of whether the surrogacy arrangement is procured by opposite-sex or same-sex couples, married or unmarried, single or otherwise, MSF should take a clear stance against all forms of surrogacy and not permit the adoption procedure to be used to sanction such arrangements.
The Ministry of Social and Family Development (MSF) should take a clear stance against all forms of surrogacy in its review of the relevant policies and legislation on adoption and surrogacy (Gay man allowed to adopt surrogate son on appeal; and MSF to consider if policies, laws need to be reviewed; both Dec 18).
The High Court had observed that, from 2008 to this year, MSF oversaw 14 applications for adoption which involved the use of surrogacy.
Ten cases involved married couples applying jointly to adopt and were supported by the Guardian-in-Adoption.
The remaining four were, at the time of the hearing, pending investigation.
The Guardian recorded the payments that were made and what they were made for.
The court found that it was "unclear from the evidence whether there is a settled public policy against surrogacy at present and, even if there is, what that policy would be".
It added that "there is a case for some urgency" in determining the law and policy on surrogacy.
All forms of surrogacy commodify children, deconstruct motherhood and sever the bond between mother and child by treating the woman as an incubator.
Commercial surrogacy is also a form of human trafficking, involving the buying and selling of children.
As District Judge Shobha Nair pointed out in her judgment in the Family Court on March 8 this year, this is at odds with the principles of the Adoption Act, which prohibits the giving or receiving of any payment or reward in consideration of adoption.
Surrogacy contradicts the raison d'etre of adoption, which is to help children find the family they need, not help adults get the children they want.
Regardless of whether the surrogacy arrangement is procured by opposite-sex or same-sex couples, married or unmarried, single or otherwise, MSF should take a clear stance against all forms of surrogacy and not permit the adoption procedure to be used to sanction such arrangements.
Darius Lee
Ministry of Social and Family Development to study if policies need to be reviewed after court allows gay Singaporean to adopt surrogate son
By Fabian Koh, The Straits Times, 18 Dec 2018
The Ministry of Social and Family Development (MSF) has said it respects the High Court's ruling yesterday allowing a gay Singaporean man to adopt his biological son.
An MSF spokesman also said the ministry will "study the grounds of decision carefully and consider if the relevant policies and legislation need to be reviewed and further strengthened".
"MSF had opposed the appeal because, among others, the adoption would be contrary to public policy against the formation of same-sex family units," the spokesman said in a statement.
She added that the man had also gone overseas for surrogacy to form a single parent household, when surrogacy is not permitted in Singapore.
The ministry noted that the High Court recognised the existence of two public policies. The first is of encouraging parenthood within marriage, which MSF described as "the norm in our society", and second, is the lack of support for the formation of same-sex family units.
"However, the court concluded with not insignificant difficulty that an adoption order ought to be made in this case because it would advance the child's welfare, which the court found is 'first and paramount'," said the MSF spokesman.
The court took the view that allowing the adoption would "make the child a legitimate child with the social acceptance attached to this status", and that would bring some "positive social, psychological and emotional impact" on the boy.
"All adoptions are decided by the court on a case-by-case basis," the spokesman added.
* Parliament: Authorities looking at adoption laws and surrogacy, do not support gay families, says Minister Desmond Lee
Focus will be on strengthening adoption Act to better reflect public policy - which in turn reflects values of broad society
By Rachel Au-Yong, Housing Correspondent, The Straits Times, 15 Jan 2019
Singapore is reviewing the adoption law and looking into the issue of surrogacy, following a recent landmark case involving a gay father adopting his biological child who was conceived through a surrogate in the United States.
Even so, Minister for Social and Family Development Desmond Lee stressed again the Government's position on same-sex parenthood, saying it does not support the formation of families by gay parents.
Related
Ruling To Award Adoption To Single Man In Same-Sex Relationship -14 Jan 2019
By Fabian Koh, The Straits Times, 18 Dec 2018
The Ministry of Social and Family Development (MSF) has said it respects the High Court's ruling yesterday allowing a gay Singaporean man to adopt his biological son.
An MSF spokesman also said the ministry will "study the grounds of decision carefully and consider if the relevant policies and legislation need to be reviewed and further strengthened".
"MSF had opposed the appeal because, among others, the adoption would be contrary to public policy against the formation of same-sex family units," the spokesman said in a statement.
She added that the man had also gone overseas for surrogacy to form a single parent household, when surrogacy is not permitted in Singapore.
The ministry noted that the High Court recognised the existence of two public policies. The first is of encouraging parenthood within marriage, which MSF described as "the norm in our society", and second, is the lack of support for the formation of same-sex family units.
"However, the court concluded with not insignificant difficulty that an adoption order ought to be made in this case because it would advance the child's welfare, which the court found is 'first and paramount'," said the MSF spokesman.
The court took the view that allowing the adoption would "make the child a legitimate child with the social acceptance attached to this status", and that would bring some "positive social, psychological and emotional impact" on the boy.
"All adoptions are decided by the court on a case-by-case basis," the spokesman added.
* Parliament: Authorities looking at adoption laws and surrogacy, do not support gay families, says Minister Desmond Lee
Focus will be on strengthening adoption Act to better reflect public policy - which in turn reflects values of broad society
By Rachel Au-Yong, Housing Correspondent, The Straits Times, 15 Jan 2019
Singapore is reviewing the adoption law and looking into the issue of surrogacy, following a recent landmark case involving a gay father adopting his biological child who was conceived through a surrogate in the United States.
Even so, Minister for Social and Family Development Desmond Lee stressed again the Government's position on same-sex parenthood, saying it does not support the formation of families by gay parents.
Mr Lee was responding to three MPs in Parliament yesterday, who had raised questions about last month's High Court decision to grant the gay man's appeal to adopt his son.
Some celebrated the ruling as a mark of progress for the gay community, while others pointed out that it goes against what constitutes a family. Yet others felt that the laws surrounding surrogacy were unclear, and wondered if the man had exploited a loophole to legally adopt his child.
Today, surrogacy is barred in Singapore. Parents who have gone abroad for it and returned home to apply for adoption of their surrogate children will have their applications assessed on a case-by-case basis. To date, the courts have granted the adoption of 10 children to married couples who used surrogacy because of infertility issues.
But surrogacy, Mr Lee said, "is a complex issue with ethical, social, health and legal implications for all parties involved''.
Pinpointing commercial surrogacy, he noted concerns about the exploitation of women and commodification of children. These are not trivial and warrant careful study, he added.
Meanwhile, he issued this note of caution: "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."
Mr Christopher de Souza (Holland-Bukit Timah GRC), in response to the speech, urged the authorities to bar surrogacy explicitly.
While acknowledging the concerns, Mr Lee said the authorities will also "(keep) in mind the wishes, aspirations and concerns of mothers who would otherwise not be able to conceive their own flesh and blood".
In reviewing the Adoption of Children Act, the focus is on how they can be "strengthened to better reflect public policy, which is, in turn, a reflection of the values of our broad society today", Mr Lee said.
The "prevailing social norm", he noted, is still that of a man and woman marrying, and raising children in a stable family unit.
While the child's welfare is important, his ministry is looking into whether changes are needed "so that an appropriate balance can be struck when important public policy considerations are involved".
Mr Lee noted that the boy, aged five, is not stateless but is a US citizen being raised by the dad and his partner in the same home.
Dr Fatimah Lateef (Marine Parade GRC) asked Mr Lee if his ministry would be involved in keeping an eye on the psychological and mental well-being of the boy.
Mr Lee replied: "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."
In spelling out the official position, Mr Lee reiterated that lesbian, gay, bisexual and transgender (LGBT) people have a place in Singapore society and are entitled to their own private lives.
"However, we must be mindful that a push for rights and entitlements which 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."
He stressed: "We do not support the formation of family units with children and homosexual parents through institutions and processes such as adoption."
With the "prevailing social norm" being that of a married man and woman bringing up children in a stable family unit, it follows that "the Government does not encourage planned and deliberate single parenthood as a lifestyle choice".
Referring to the case, Mr Lee said adoption does not guarantee benefits like citizenship. Access to housing, for instance, will be decided by prevailing criteria, in line with public policy supporting parenthood within marriage. But, he added: "All Singaporean children, regardless of their legitimacy status, will receive government benefits that support their growth and development, including healthcare and education benefits."
Some celebrated the ruling as a mark of progress for the gay community, while others pointed out that it goes against what constitutes a family. Yet others felt that the laws surrounding surrogacy were unclear, and wondered if the man had exploited a loophole to legally adopt his child.
Today, surrogacy is barred in Singapore. Parents who have gone abroad for it and returned home to apply for adoption of their surrogate children will have their applications assessed on a case-by-case basis. To date, the courts have granted the adoption of 10 children to married couples who used surrogacy because of infertility issues.
But surrogacy, Mr Lee said, "is a complex issue with ethical, social, health and legal implications for all parties involved''.
Pinpointing commercial surrogacy, he noted concerns about the exploitation of women and commodification of children. These are not trivial and warrant careful study, he added.
Meanwhile, he issued this note of caution: "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."
Mr Christopher de Souza (Holland-Bukit Timah GRC), in response to the speech, urged the authorities to bar surrogacy explicitly.
While acknowledging the concerns, Mr Lee said the authorities will also "(keep) in mind the wishes, aspirations and concerns of mothers who would otherwise not be able to conceive their own flesh and blood".
In reviewing the Adoption of Children Act, the focus is on how they can be "strengthened to better reflect public policy, which is, in turn, a reflection of the values of our broad society today", Mr Lee said.
The "prevailing social norm", he noted, is still that of a man and woman marrying, and raising children in a stable family unit.
While the child's welfare is important, his ministry is looking into whether changes are needed "so that an appropriate balance can be struck when important public policy considerations are involved".
Mr Lee noted that the boy, aged five, is not stateless but is a US citizen being raised by the dad and his partner in the same home.
Dr Fatimah Lateef (Marine Parade GRC) asked Mr Lee if his ministry would be involved in keeping an eye on the psychological and mental well-being of the boy.
Mr Lee replied: "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."
In spelling out the official position, Mr Lee reiterated that lesbian, gay, bisexual and transgender (LGBT) people have a place in Singapore society and are entitled to their own private lives.
"However, we must be mindful that a push for rights and entitlements which 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."
He stressed: "We do not support the formation of family units with children and homosexual parents through institutions and processes such as adoption."
With the "prevailing social norm" being that of a married man and woman bringing up children in a stable family unit, it follows that "the Government does not encourage planned and deliberate single parenthood as a lifestyle choice".
Referring to the case, Mr Lee said adoption does not guarantee benefits like citizenship. Access to housing, for instance, will be decided by prevailing criteria, in line with public policy supporting parenthood within marriage. But, he added: "All Singaporean children, regardless of their legitimacy status, will receive government benefits that support their growth and development, including healthcare and education benefits."
Ruling To Award Adoption To Single Man In Same-Sex Relationship -14 Jan 2019
No comments:
Post a Comment