Case Summaries

UKM v Attorney-General [2018] SGHCF 18

SUPREME COURT OF SINGAPORE

17 December 2018

Case summary

UKM v Attorney-General [2018] SGHCF 18
High Court (Family Division) / District Court Appeal No 2 of 2018

-------------------------------------------------------------------------------------------------------Decision of the High Court (Family Division) (delivered by Chief Justice Sundaresh Menon):

Outcome: The High Court (Family Division) allows a gay man’s application to adopt his four-year-old biological son who was birthed through gestational surrogacy in the US.

Significant points of the judgment

·         The court explains the meaning of the expression “welfare of the child” in the Adoption of Children Act (Cap 4, 2012 Rev Ed).

·         The court sets out the appropriate methodology for determining and weighing the public policy considerations that are said to militate against giving effect to a claimed statutory right or interest.

·         The court sets out the circumstances in which a payment made to a parent or guardian in consideration of an adoption would be sanctioned under the Adoption of Children Act, as well as the effect of granting and withholding sanction.

Facts

1              The appellant is a gay man in a long-term relationship with his partner. Desirous of raising a child and having been advised that they could not adopt in Singapore because of their sexual orientation, they travelled to the US and engaged the services of a surrogate mother, M, whom they paid under a Gestational Surrogacy Agreement (“GSA”) to carry and deliver a baby conceived through in vitro fertilisation and then to hand the baby over to them. The appellant’s sperm and the egg of an anonymous donor were used in the procedure. In November 2013, M gave birth to the appellant’s biological son (“the Child”). She later relinquished her parental rights over the Child, whom the appellant and his partner then brought to Singapore. The Child was granted a Long-Term Visit Pass to remain here until April 2015: [3], [4], and [7] to [10].

2              Hoping to enable the Child to remain in Singapore permanently, the appellant applied on the Child’s behalf for Singapore citizenship, but was denied. He approached the Ministry of Social and Family Development (“the MSF”) for advice and was told that the prospects of the Child’s remaining here might be enhanced if he adopted the Child and thereby established a legal nexus with him. In December 2014, the appellant filed an application to adopt the Child under the Adoption of Children Act (Cap 4, 2012 Rev Ed) (“the Act”), and the Child was granted a dependant’s pass for the duration of the adoption proceedings. The appellant deposed that he had made the application to improve the Child’s chances of obtaining Singapore citizenship or permanent residency and to “formalise” his legal status as the Child’s father. M filed her consent to this application in January 2015: [11] to [13].

 

3              The Director of Social Welfare of the MSF was then appointed the Child’s Guardian-in-Adoption (“the Guardian”). An extensive three-year investigation by the MSF followed, resulting in a report recommending against allowing the adoption on the basis that an adoption would be “contrary to public policy”, given that “[s]ame-sex marriage is not recognised under Singapore law” and the appellant is “seeking to form a family unit with his male partner”: [14].

 

4              In December 2017, a District Judge dismissed the appellant’s adoption application, largely on the basis that by going overseas to procure the Child through gestational surrogacy – that procedure not being legally available in Singapore and, to the District Judge, ethically problematic – and by then attempting to formalise his relationship with the Child here through adoption, the appellant was attempting to “[walk] through the back door of the system when the front door was firmly shut”. The District Judge held that while the court might consider “unlocking the back door” if the welfare of the child in question demanded it, this was not the case here. The appellant appealed to the High Court against that decision: [16], [19] and [22].

 

5              Four issues arose for determination. The first was whether the making of an adoption order in this case would be “for the welfare of the infant” under s 5(b) of the Act. This was a statutory requirement that had to be satisfied before an adoption order could be made, and it was the requirement the satisfaction of which the parties disputed most severely. The second was whether there was any basis for taking public policy considerations into account. This issue arose because the Guardian contended that even if all the statutory requirements were satisfied, making an adoption order in this case would violate public policy, and therefore, the court ought to exercise its discretion not to make the order. The third issue was the proper approach to taking public policy into account, assuming that there was a basis for doing so. The fourth and final issue was whether the payment that the appellant made to M under the GSA was lawful under s 11 of the Act, which prohibits the making of payments “in consideration of the adoption” to the parents of the child to be adopted, and the effect on the appellant’s application of a conclusion either way: [23] to [30] and [32] to [35].

The court’s decision

The welfare of the child

6              The court held that the welfare of a child for the purposes of s 5(b) of the Act refers to his “well-being” in every aspect and in the most exhaustive sense of the word. It refers to his physical, intellectual, psychological, emotional, moral and religious well-being, both in the short term and in the long term. Besides the satisfactoriness of the child’s parenting arrangement, it is equally critical to account for the intangible components of his well-being in a broader sense. This means that attention must be given not only to his psychological and emotional development, but also to the environment within which his sense of identity, purpose and morality would be cultivated: [45] to [47].

 

7              The court also held that s 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed), which states that the welfare of the child shall be the first and paramount consideration in any proceedings relating to his custody and upbringing, does apply to adoption proceedings. This meant that the court’s analysis must take the shape of assessing the impact of the order sought in the light of all the relevant indicia of the child’s welfare, and when a certain outcome is shown to be for the welfare of the child, the court should generally make an order which achieves that outcome unless there are compelling reasons to do otherwise. However, the child’s welfare is neither absolute nor exclusive, and therefore, exceptional circumstances particular to the context of the specific case may justify an outcome which serves the child’s welfare less than optimally: [50] and [56] to [57].

 

8              In the present case, the court was satisfied that an adoption order would be for the welfare of the Child as required under s 5(b) of the Act. It would increase the Child’s prospects of securing Singapore citizenship and possible long-term residence in Singapore, where his natural father and family support structures were located. This consideration carried significant weight given its bearing on the Child’s sense of security and emotional well-being, as well as the long-term stability of his care arrangements, which the MSF had assessed as materially and financially adequate. Also, to a limited extent, the legitimation of the Child by the grant of an adoption order would have some positive social, psychological and emotional impact on him, because of the social acceptance attached to this status. But as the Child’s present circumstances already reflected the reality that he was the appellant’s biological son, the court was not satisfied that an adoption order would establish the Child’s parentage and thereby have the transformative impact on the Child that the appellant claimed that it would. The court also considered that neither the removal of M’s parental rights nor the Child’s obtaining the right to intestate succession was a benefit to him: [65] to [67], [74] to [75], [79] to [80] and [84].

The legal basis for taking public policy into account

9              The court next addressed the Guardian’s submission that an adoption order should nevertheless not be made because it would be in violation of public policy. In the court’s view, there was a legal basis, in s 3(1) of the Act, for the court to take public policy considerations into account in arriving at its decision in this case: [85], [96] to [97] and [102].

 

10           In the court’s view, s 3(1) of the Act confers on the court not only a power to make an adoption order, but also a general discretion to determine whether to make such an order once the relevant statutory conditions have been satisfied. The purpose of this discretion is twofold. First, it is to enable the court to make an adoption order only after having regard to all the relevant circumstances of the case, including any consideration which is not provided for in the Act but which may be relevant to assessing the propriety of the transaction between the two sets of parents involved in the adoption as well as the welfare of the child concerned. Second, it is to enable the court to consider any public policy which may be relevant to any aspect of the institution of adoption, because adoption is the very institution which the Act has established and seeks to regulate. Therefore, the court held that the Guardian was entitled to rely on s 3(1) of the Act to introduce public policy considerations relating to family, parenthood and the well-being of children: [89], [96] to [97].

The role of public policy in judicial decisions and in the present case

11           The court conceptualised public policy as involving arguments about the public or common good. This explained why its proper role in judicial decisions was historically difficult to define: the logic of public policy cuts against the logic of the essential judicial task of deciding individual cases, and what is or is not for the common good is often incapable of complete consensus and changes with the times. The proper approach to taking public policy therefore had to explain why regard should be had to the common good in deciding an individual case, and why a certain formulation of the common good was authoritative or persuasive. On this premise, the court set out general principles on the role of public policy in judicial decisions. These principles were predicated on fundamental propositions about the proper function of judges, the first being the protection of the democratic process and respect for the democratic legitimacy of our elected institutions, and the second being institutional competence: [107] to [110], [111] to [123] and [125] to [126].

 

12           The role of public policy in the present case was shaped by its legal context. Since the appellant’s adoption application was governed by statutory law and the public policy considerations relied upon by the Guardian were socio-economic in nature, there was little scope for the court to rest its decision on any public policy of its own formulation. Instead, it had to find the alleged public policy in authoritative sources, namely, in pronouncements by the Legislature or the Executive, or in some fundamental purpose of the law. Further, since the court was being asked to curtail what was, for analytical purposes, the appellant’s right to adopt the Child, any countervailing public policy would have to be balanced against the concern to promote the Child’s welfare: [128] to [130].

 

13           The court established a two-step analytical framework for taking public policy into account in a case such as the present. The first step is a forensic exercise, by which the court determines whether the alleged public policy exists and, if it does, whether the policy would be violated if the claimed right were given effect. The second step is a balancing exercise, in which the court considers the weight to be given to the value underlying the claimed right and to the countervailing public policy consideration, and then reasons towards an outcome which strikes the proper balance between the competing considerations: [162].

The forensic exercise: Determining whether the relevant public policies existed

14           Although the Guardian did not rely on a public policy against surrogacy, the issue of the existence of this policy arose because the District Judge had based her decision on such a policy. The court concluded that it could not and should not articulate a public policy against surrogacy and give it weight in the present case, given the still evolving nature of the Government’s position in the light of the complexities surrounding the substantive issue. To do so would be to fill a space in deliberative social policy-making that the other branches of government, in whom the legislative imprimatur lay, had not stepped into or were not yet prepared to step into: [166] and [178] and [185].

 

15           As regards the Guardian’s case, the Guardian contended firstly that there was a public policy in favour of parenthood within marriage. The court found that there was strong evidence in ministerial speeches, legislation and regulations for such a policy. This policy meant that the position to be encouraged is that the family unit should be understood as comprising a married heterosexual couple having and raising children, and in addition, this should be understood as being the optimal parenting conditions under which a child in Singapore may be raised. However, making an adoption order in this case would not be contrary to this public policy, because the policy did not logically entail opposing other forms of parenthood: [187] to [192].

 

16           Second, the Guardian submitted that there was a public policy against planned and deliberate parenthood by singles through the use of ART or surrogacy. The court doubted that this alleged policy could conceptually be regarded as a “standalone” policy in the way the Guardian had contended. The court was also not satisfied that the relevant materials supported the existence of such a policy: [193] to [197] and [201].

 

17           Third, the Guardian argued that there was a public policy against the formation of same-sex family units. The court was satisfied that there was such a policy, separate and independent from the public policy in favour of parenthood within marriage. The policy was directed at discouraging one category of alternative family unit, namely, a same-sex family unit, which included a family where there are two homosexual co-parenting individuals, as well as a family where there is a single homosexual parent and a child, regardless of the gender of the parent. Its existence was supported by statements of the Prime Minister and various legislative provisions. Making an adoption order in this case would be a breach of this public policy because it would constitute a positive affirmation, and not merely a reticent accommodation, of the appellant’s attempt at forming a same-sex family unit: [202] to [207].

Payment in consideration of the adoption

18           Before undertaking the balancing exercise, the court examined the significance of the appellant’s payment to M under the GSA. The court held that the payment did constitute a prohibited payment under the Act because it was received by “any parent” within the meaning of s 11, and it was a “payment or other reward in consideration of the adoption of any infant”. M, being the Child’s birth mother, was to be regarded as a “parent” of the Child within the meaning of s 11. The payment was “in consideration of the adoption” of the Child because the GSA obliged M to cooperate with the appellant in the present proceedings to constitute him the sole and exclusive legal parent of the Child. The GSA was not simply an agreement that M carry a baby to term, but also an agreement that she hand over the baby to the appellant and his partner with no strings attached, and that she cooperate with them to formalise their relationship with the baby after the handing over. However, the court decided that the payment should be sanctioned under s 11, because it was for the purpose of adopting the Child with a sincere desire to benefit and promote his welfare, and because sanctioning the payment would not violate any public policy: [217], [219] to [224], [225] and [238] to [240].

The balancing exercise

19           The final step in the analysis was to ascribe the appropriate weight to the two competing considerations in play: first, the concern to protect the welfare of the Child, and second, the concern not to violate the public policy against the formation of same-sex family units. This exercise was to be conducted with reference to three factors: [242].

 

20           First, the greater the degree to which the public policy was rationally connected or proximate to the legal issue before the court, the greater the weight that ought to be given to it. Here, the public policy against the formation of same-sex family units was clearly closely connected to the issue in dispute, which was whether the Child should be adopted by the appellant: [154] and [243].

 

21           Second, the greater the degree to which the public policy concerned emanated from the applicable statutory regime, the greater the weight that ought to be given to it. Here, the public policy against the formation of same-sex family units did not arise from the Act, and therefore, no weight could be given to it on this count. By contrast, the concern to reach an outcome that promoted the Child’s welfare was expressly provided for in the Act, and therefore was a reason that warranted according it significant weight: [155] and [244].

 

22           Third, the greater the degree to which the countervailing policy consideration would be violated if the claimed right were given effect, the less willing the court should be to give effect to it. An aspect of this factor is that the greater the degree to which the party asserting the claimed right deliberately violated the countervailing public policy consideration, the less willing the court should be to give effect to the claimed right. On the other hand, the greater the degree to which the value underlying the claimed right would be advanced if the right were given effect, the more willing the court should be to give effect to it: [156] to [159] and [245] to [247].

 

23           Here, if an adoption order were made, the public policy against the formation of same-sex family units would be violated significantly. At the same time, nothing indicated that the appellant set out deliberately to violate any law or public policy. Even though he could not have been unaware of the Government’s position against the formation of same-sex family units, this was not sufficient to demonstrate that he set out deliberately to violate a public policy to that effect, especially having regard to the lack of clarity that had hitherto existed as to the precise nature of the relevant public policy, a point reflected in the fact that the Guardian struggled in these proceedings to articulate the precise content of the public policies which, she contended, would be violated by making an adoption order. On the other hand, the value underlying the appellant’s claimed right, namely, the promotion of the welfare of the Child, would be significantly advanced by making the adoption order sought: [245] to [247].

 

24           On balance, significant weight was attributed to the concern not to violate the 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 it would be violated should an adoption order be made. 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: [248].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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