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UKM V. Attorney General

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UKM V. Attorney General IN THE FAMILY DIVISION OF THE HIGH COURT OF THE REPUBLIC OF SINGAPORE [2018] SGHCF 18 HCF/District Court Appeal No 2 of 2018 Between UKM … Appellant And ATTORNEY-GENERAL … Respondent In the matter of Originating Summons (A) No 355 of 2014 In the matter of the Adoption of Children Act (Chapter 4) And In the matter of AB UKM … Applicant JUDGMENT [Family Law] — [Adoption] — [Discretionary power] — [Public policy] [Statutory Interpretation] — [Construction of statute] This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports. UKM v Attorney-General [2018] SGHCF 18 High Court (Family Division) — District Court Appeal No 2 of 2018 Sundaresh Menon CJ, Judith Prakash JA and Debbie Ong J 17–18 July 2018 17 December 2018 Judgment reserved. Sundaresh Menon CJ (delivering the judgment of the court): Introduction 1 The appellant is a gay man. He wishes to adopt his biological son, whom we shall call the Child and who is currently four years old. The Child was conceived through in vitro fertilisation and birthed in the US by a surrogate mother. She was paid by the appellant and his same-sex partner for what, in essence, were the reproductive services she provided. In these circumstances, the usual, principal question of whether an adoption order would serve the best interests of the child to be adopted implicates a set of weighty considerations concerning the propriety of his parenting arrangement and the ethics of the means by which his birth was procured. These considerations pertain to fundamental values of our society, and bring into sharp focus the difficult interplay between law and public policy in the determination of the particular case before the court. The law is asked to provide the answer to a dilemma that UKM v AG [2018] SGHCF 18 challenges the mores of a largely conservative society, and this arises partly because science has devised a new paradigm for procreation. In such a case, it is especially critical that the court’s approach to resolving the issues which arise is established upon the bedrock of the Judiciary’s proper role within our constitutional setting. That role is to apply the law and to determine the particular dispute in the case at hand. It is not to determine social policy in our country or to be a player in what has sometimes been seen as the “culture wars” that assail society. 2 In this judgment, we answer the question presented, which is whether the appellant should be allowed to adopt his son. In doing so, we also set out what, in our view, is the appropriate methodology to be applied in determining and weighing the material considerations of public policy that may bear on the central issue that we are required to deal with. Background The Child’s birth 3 The appellant is 46 years old and a pathologist by vocation. He has been in a relationship with a man of the same age for about 13 years. Both of them are Singapore citizens. They have cohabited since around 2003, and currently reside with the Child and a domestic helper in a three-bedroom condominium apartment in Singapore. 4 Sometime during the course of their relationship, the appellant and his partner decided that they wanted to raise a child together. They considered the possibility of adopting a child, but were advised by adoption agencies that because of their homosexual orientation, they would not be allowed to adopt in 2 UKM v AG [2018] SGHCF 18 Singapore. So they turned to the possibility of conceiving a child biologically related to one of them through assisted reproductive technology (“ART”). 5 ART is a technical label which refers to a range of fertility procedures involving the manipulation of both male and female sex cells (or gametes) through the use of technology. The World Health Organisation defines it in this way in F Zegers-Hochschild et al, “International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) revised glossary of ART terminology, 2009” (2009) 92 Fertility and Sterility 1520 (“WHO Glossary”) at p 1521: Assisted reproductive technology (ART): all treatments or procedures that include the in vitro handling of both human oocytes and sperm or of embryos, for the purpose of establishing a pregnancy. This includes, but is not limited to, in vitro fertilization and embryo transfer, gamete intrafallopian transfer, zygote intrafallopian transfer, tubal embryo transfer, gamete and embryo cryopreservation, oocyte and embryo donation, and gestational surrogacy. ART does not include assisted insemination (artificial insemination) using sperm from either a woman’s partner or a sperm donor. 6 The Ministry of Health in Singapore has adopted a similar definition of ART. The Licensing Terms and Conditions on Assisted Reproduction Services (26 April 2011) (“the ART Licensing Terms”) promulgated under s 6(5) of the Private Hospitals and Medical Clinics Act (Cap 248, 1999 Rev Ed) provide as follows in cl 2.2: For the purposes of these licensing terms and conditions, Assisted Reproduction (“AR”) involves clinical treatments and laboratory procedures that include: (a) the removal or attempted removal of oocytes from a woman for any purpose; and (b) the handling of human oocytes or embryos for the purpose of procreation. This includes In-vitro Fertilisation (IVF); Gamete Intrafallopian Transfer (GIFT); Zygote Intrafallopian Transfer (ZIFT); Intra- 3 UKM v AG [2018] SGHCF 18 cytoplasmic Sperm Injection (ICSI); gamete/embryo/ovarian tissue crytopreservation; gamete/embryo donation (for any purpose); and embryo biopsy for Preimplanation Genetic Diagnosis (PGD). However, AR does not include the surgical excision of ovarian tissue. A substantially similar definition was set out in the previous directions issued by the Ministry of Health to private healthcare institutions providing ART services: see cl 1.2 of the Directives for Private Healthcare Institutions Providing Assisted Reproduction Services (31 March 2006) (“the ART Directives”), issued under Reg 4 of the Private Hospitals and Medical Clinics Regulations (Cap 248, Reg 1, 2002 Ed). The ART Directives have since been superseded by the ART Licensing Terms. 7 The form of ART that the appellant and his partner used was gestational surrogacy, which involves a woman who carries a pregnancy under an agreement that she will give the offspring to the “intended” or “commissioning” parent or parents: see the WHO Glossary at p 2686. The gametes in a gestational surrogacy arrangement can originate from one or both commissioning parents or from a third party. This is distinct from what is sometimes called traditional surrogacy, where the surrogate mother is artificially inseminated with the intended father’s sperm. The appellant and his partner found an agency in the US that provided gestational surrogacy services, and they both donated their sperm for the procedure. An egg from an anonymous donor was fertilised by the appellant’s sperm and then implanted in the womb of a surrogate mother, a US citizen, whom we shall call M. 8 The arrangement was for M to carry the baby to term, to deliver him, and then to relinquish her rights over him. This was provided for in a Gestational Surrogacy Agreement (“GSA”) dated 16 January 2013. The parties to the GSA were M, M’s husband, the appellant and the appellant’s partner. For the entire 4 UKM v AG [2018] SGHCF 18 arrangement, the appellant paid a total of about US$200,000, including medical fees, insurance, legal costs, agency fees and a payment to M of US$25,000. Clause 17 of the GSA provided that the payment made by the appellant and his partner to M and her husband under the GSA was to be regarded as reimbursement for carrying the baby, and not as a fee for M’s services. 9 On 19 November 2013, M gave birth to the Child in Pennsylvania, USA. The Child’s birth certificate, issued by the State of Pennsylvania, states that the appellant and M are his father and mother respectively. About a month later, M swore an affidavit relinquishing her parental rights over the Child. In it, she stated that she would “not oppose any procedure which shall confirm permanent residency status or citizenship in Singapore for [the Child], through his father, [the appellant]”. She also gave her consent for the Child to travel with the appellant anywhere in the world. 10 The appellant then brought the Child to Singapore, where the Child has since remained. The appellant applied for Singapore citizenship for the Child soon after this. In August 2014, the Immigration and Checkpoints Authority (“ICA”) rejected the Child’s citizenship application, but granted the Child permission to remain in Singapore until April 2015 under a Long-Term Visit Pass (“LTVP”). Separately, in October 2014, the appellant obtained a certificate from the Health Sciences Authority confirming, based on his and the Child’s DNA profiles, that he is the Child’s biological father. The adoption application 11 In October 2014, the appellant wrote to the Ministry of Social and Family Development (“MSF”) explaining that he was a Singapore citizen and a single father with a ten-month-old son who was a US citizen staying with him 5 UKM v AG [2018] SGHCF 18 in Singapore on a temporary visit pass. The appellant asked the MSF to “advise [him] on how [his] son can be allowed to stay in Singapore permanently”. 12 The MSF replied to say that the appellant “may choose to adopt [his] biological child (if conceived out of wedlock) to establish a legal nexus with him”. The MSF also informed the appellant of the documents he would need to prepare for this purpose.
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