Biomedical Law and Ethics

• Author: Tracey Evans CHAN LLB (Hons) (National University of Singapore), LLM (Harvard); Associate Professor, Faculty of Law, National University of Singapore. Prem Raj PRABAKARAN* BEng (Mechanical) (Hons) (National University of Singapore), LLB (Hons) (National University of Singapore), BCL (Oxon); District Judge, State Courts of Singapore.
• Citation: (2018) 19 SAL Ann Rev 82
• Published date: 01 December 2018
• Date: 01 December 2018
• Publication year: 2018

Introduction

6.1 In the year under review, the High Court deliberated on a diverse range of issues spanning international surrogacy, loss of chance and organisational duties of care in medical negligence, and reviewed the sentencing framework for medical professional misconduct.1

International commercial surrogacy

6.2 The legal and policy status of international surrogacy arose for consideration in the case of UKM v Attorney-General.2 A Singapore gay man (“the appellant”) procured the reproductive services of a surrogate (“M”) in the state of Pennsylvania, USA, and a male child was borne by the surrogate with an embryo derived from his gametes and those of an anonymous oocyte donor. The appellant was stated under Pennsylvania law to be his father, and M, his mother. M agreed under a gestational surrogacy agreement (“GSA”) to relinquish her parental rights over the child and not oppose any application to obtain permanent residency or citizenship status for the child in Singapore. When the appellant and his partner brought the child back to Singapore, his application for Singapore citizenship was rejected. He then brought an application to adopt his biological son, born out of wedlock, under s 3 of the Adoption of Children Act3 with M's consent. This was principally motivated by a desire to strengthen his application, on the Ministry of Social and

Family Development's (“MSF”) advice, for his son's Singapore citizenship or permanent residency.

6.3 The District Court rejected the appellant's application under s 3 of the Adoption of Children Act on the grounds that the welfare of the child did not require it (he would still be well cared for and educated in a supportive environment), and an adoption order would subvert the public policies against surrogacy and granting unmarried persons access to assisted reproductive treatments (“ART”).4 The court also declined to sanction payments made pursuant to the GSA under s 11 of the Adoption of Children Act as it would amount to sanctioning commercial surrogacy and the commodification of the child.5

6.4 A three-member panel of the High Court allowed the appeal. The court considered that an adoption order would ultimately be for the welfare of the child because it would render the appellant a parent of his otherwise illegitimate son for the purposes of Art 124(1) of the Constitution of the Republic of Singapore6 (“the Constitution”) and therefore render the child eligible for citizenship by registration. Becoming a citizen would stabilise the child's long-term care arrangements and provide a sense of security vital to his well-being and development. However, the court has a discretion under s 3 of the Adoption of Children Act to make the order, and this is power is subject to any public policy relevant to the institution of adoption. The Adoption of Children Act is “an instrument for the establishment of new families and parental relations”, and any attempt to undermine the institutions of family and parenthood should be resisted.7 After considering a number of potential countervailing public policies in relation to surrogacy, parenthood within marriage, planned parenthood by singles through ART or surrogacy, and the formation of same-sex family units, only the last withstood forensic scrutiny on the criteria of authority, clarity and relevance. The court found that such a public policy specifically against the formation of same-sex family units was well founded based on Parliamentary statements by the executive and statutory provisions in the Penal Code8 and the Women's Charter,9 although nothing in the Adoption of Children Act itself supported such as policy. Making an adoption order in this case would violate such a policy.

6.5 Nevertheless, in balancing the competing considerations relating to the welfare of the child and the countervailing public policy against same-sex family units, the court was not persuaded that the appellant deliberately sought to violate any law, nor this particular public policy, with culpable intent. The “statutory imperative to promote the welfare of the Child … is not only intrinsically weighty, … but is also supported by the evidence”.10 The court therefore made the adoption order sought, and also sanctioned payments made to M under the GSA on the ground that they were made with a sincere intent to benefit and promote the welfare of the child in question, and there was no demonstrable public policy against surrogacy.11

6.6 The last foregoing finding is the most pertinent to this chapter. The court noted that surrogacy is only addressed legally in Singapore via the prohibitions on assisted reproductive service licensees from carrying out surrogacy arrangements, irrespective of whether they are altruistic or commercial, traditional or gestational.12 This regulatory stance is reinforced by the provisions of the Status of Children (Assisted Reproduction Technology) Act13 (“SCARTA”), which envisages only the gestational mother carrying the child in her own right as parent. The SCARTA also does not offer any means of transferring parental rights to a commissioning couple in a surrogacy arrangement. However, the court was not prepared to find that there was a clear public policy against surrogacy locally or abroad for a number of reasons. First, the use of surrogacy services here or abroad was not criminalised. Second, there was no authoritative statement from the Executive concerning a settled policy position on surrogacy – gestational, commercial or otherwise. In fact, the Executive had clearly indicated that it had not yet decided on a position because of the sensitivity and delicacy of the issue, especially in relation to international surrogacy.14

6.7 Further indication of this unsettled position was the revelation by the guardian in this case that between 2008 and 2018, there were 14 cases of adoption overseen by MSF that involved the use of surrogacy. Ten of these cases were supported, while the remaining were pending. All involved married couples, and the available evidence indicated that there were payments involved although the MSF did not require the production of the surrogacy agreements. The odds are that all these cases involved some form of commercial surrogacy overseas,

and the government had nonetheless been willing to accommodate such international surrogacy arrangements notwithstanding its local prohibition on ART services facilitating surrogacy. The court therefore concluded that there was no definitive evidence of a concluded policy on surrogacy, whether locally or internationally – the prohibitions in the Licensing Terms and Conditions for Assisted Reproductive Services15 could merely indicate an interim position locally while allowing adoptions based on international surrogacy on a case-by-case basis. This specific policy consideration therefore did not feature in the exercise of discretion under s 3 on whether to make an adoption order in this case.

6.8 The decision in UKM v Attorney-General demonstrates the inadequacy of regulating the use of reproductive technologies solely via service provision restrictions in a world where medical tourism opens up new options to patients who have the means. Leaving matters as they stand in relation to ART-facilitated surrogacy arrangements opens up disparities that will eventually be called into question – such as the de facto accommodation of commercial surrogacy abroad for Singaporean married couples, while prohibiting access to other local couples without such financial means.16 Apart from surrogacy, another disparity emerges in relation to the prohibition against unmarried or same-sex couples from accessing ART services, and the public policy against the formation of same-sex family units. A lesbian couple who travels overseas for ART services would not have faced the same barriers as the appellant and his partner to setting up a same-sex family unit so long as one of them bears the child. The gestational mother in a lesbian relationship (if domiciled in Singapore) would be considered the mother of the child born in Singapore as a result of a fertilisation procedure performed overseas under s 6 of the SCARTA. Albeit illegitimate, the lesbian mother may nevertheless apply to register her child as a citizen without the need for an adoption order under Art 124(1) read with para 15(1) of the Third Schedule to the Constitution. This provides that for the purposes of Pt X of the Constitution, references to a person's father or parent shall be construed as references to his mother if he is illegitimate.

6.9 These current disparities in terms of the legal or policy status of various types of surrogacy arrangements, and the status of the children born of ART services elsewhere for the purposes of citizenship

highlights the need for a more coherently articulated ethical and legal position in Singapore in relation to the provision of ART to facilitate surrogacy arrangements elsewhere. The regulatory licensing route does not mandate the regulator to offer specific justifications or rationales for the prohibition (apart from the broad statutory basis for the regulatory power),17 nor involve Parliamentary oversight and debate where these rationales can be evaluated. Interested married and unmarried persons seeking access to surrogacy services are left to wonder under what circumstances returning couples and their surrogate borne children will be conferred citizenship in Singapore, and whether foreign legal instruments conferring parenthood or adoption status will be recognised. As Cohen points out, it is difficult to work out the implications on the granting of citizenship or permanent residency status without understanding the precise rationale for the prohibition of surrogacy ART service licensees.18 The court discussed various ethical and social concerns with surrogacy, encompassing concerns about the resulting child's welfare, corruption of social values such as...