(Blogmensgo, gay blog of December 20, 2018) The Family Court of the High Court of Singapore has allowed a homosexual man to adopt his biological son, born abroad by surrogacy, who is now 5 years old. The plaintiff, whose identity was not disclosed, was dismissed in the first instance last year. The court decision of December 17, 2018 states that the court of three judges, chaired by Sundaresh Menon, acted in the best interests of the child.
The plaintiff is a gay man who has lived with his partner since 2003. Both are now about 45 years old and have Singaporean citizenship. The couple wanted to adopt a child, but could not do so because of their sexual orientation, as the Singapore laws restricts adoption to married couples and does not allow gay marriage.
The two men therefore hired a surrogate mother in the United States and paid the equivalent of about 120,000 euros. The child, born in November 2013, is the biological son of the applicant and an anonymous egg donor and was subsequently born by a surrogate mother.
As the child only received long-term visas from the Singapore authorities until April 2015, the applicant applied for the naturalisation of his biological son “in the interest of the child”, but this was rejected. The Ministry of Family and Social Affairs then suggested that the biological father adopt his child in order to establish a legal kinship with him and thus facilitate naturalization. But after three years of investigation, a Social Welfare Office report recommended refusing adoption because the applicant lives with his same-sex partner and same-sex marriage is not allowed under Singapore law.
The lower court judge dismissed the complaint, arguing that surrogacy was not legal in Singapore and that trying to adopt would be tantamount to circumventing the law. Hence the applicant's complaint before the High Court, which corresponds to the lower chamber of the Supreme Court.
The decision of the Supreme Court
The plaintiff (the gay biological father) and the defendant (the Ministry of Justice) initially disputed legal issues. To what extent should public order be taken into account? Would an adoption decision be a violation of public order? We will not go any further into this legally very profound discourse here – it is simply too complicated.
The Court's decision was essentially based on the examination of two other fundamental elements. First, since the adoption of children law of 2012 prohibits any payment to the parents of the child to be adopted, the question arises as to whether the payment for a surrogate mother invalidates an adoption application. Secondly, and this was the most hotly debated point, could an adoption order be issued “for the good of the child”, even if this is contrary to applicable law?
On the latter point, the Court found that an adoption decision would be compatible with the best interests of the child “in all respects and in the broadest sense of the term”. In other words, it is above all the “physical, intellectual, psychological, emotional, moral and religious well-being” of the child that counts, “both in the short and long term”.
The court found that the payment of the surrogate mother was a violation of the Singapore legislation on the adoption of children and that the creation of a family with same-sex parents was contrary to public policy.
The court closed with an ambiguous statement:
However, in all the circumstances of this case, neither of these reasons justified ignoring the statutory imperative to promote the welfare of the Child and to regard it as first and paramount. That imperative was also supported by the evidence, which showed that the welfare of the Child would be materially advanced by making an adoption order. With difficulty, therefore, the court concluded that an adoption order ought to be made in this case.
The decision of the High Court may be appealed to the Court of Appeal.
Comment: Judge Sundaresh Menon has pronounced a near Solomonic judgment.
This legal victory, however important it may be, is still only half a victory. There are still many downsides here.
- The non-biological father still has no legal parent-child relationship with the biological son of his spouse.
- Perhaps the child will need to renew its Singapore visa every six months for its own sake – until it finally acquires Singaporean citizenship.
- As before the decriminalization of homosexuality in India, Singapore prohibits male homosexual relationships under the same Section 377 – of the same Penal Code – that was inherited from the British colonizer and has never been lifted since.
- Singapore still does not allow same-sex marriages or registered same-sex partnerships./li>
- Singapore only allows individuals and couples to adopt children. Same sex couples cannot marry and therefore cannot adopt children.
In concrete terms, the verdict of 17 December 2018 means that this time one has been proved right, but that this will not be a permanent situation. What is simply missing here is legalization of homosexual relationships between consensual adults and legalization of gay marriage with the right to adopt.
Frank-S / MensGo