Ukm v Ag

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeSundaresh Menon CJ,Judith Prakash JA,Debbie Ong J
Judgment Date17 December 2018
Date17 December 2018
Docket NumberDistrict Court Appeal No 2 of 2018

[2018] SGHCF 18

High Court

Sundaresh Menon CJ, Judith Prakash JA and Debbie Ong J

District Court Appeal No 2 of 2018

UKM
and
Attorney-General

Harpreet Singh Nehal SC and Jordan Tan (Cavenagh Law LLP) (instructed), Koh Tien Hua, Ivan Cheong and Shaun Ho (Eversheds Harry Elias LLP) for the appellant;

Kristy Tan, Germaine BoeyandUni Khng(Attorney-General's Chambers) for the respondent.

Case(s) referred to

A, Re [1963] 1 WLR 231 (refd)

A and B, Re (2000) 26 Fam LR 317 (refd)

ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (refd)

Adoption Application, Re [1987] Fam 81 (refd)

AG v Ting Choon Meng [2017] 1 SLR 373 (refd)

AG for the Province of British Columbia v AG for the Dominion of Canada [1914] AC 153 (refd)

Agar-Ellis, Re (1883) 24 Ch D 317 (refd)

Ampthill Peerage, The [1977] AC 547 (refd)

Anna Johnson v Mark Calvert 19 Cal Rptr 2d 494 (1993) (refd)

Baker, Re (1890) 44 Ch D 262 (refd)

Bank Mellat v Her Majesty's Treasury (No 2) [2014] AC 700 (refd)

BNS v BNT [2015] 3 SLR 973 (folld)

C, Re [1993] 1 FLR 87 (refd)

C, Re [2003] 1 SLR(R) 502; [2003] 1 SLR 502 (refd)

C, Re [2014] 1 FLR 654 (distd)

C v S 1996 SLT 1387 (refd)

Cheong Seok Leng v PP [1988] 1 SLR(R) 530; [1988] SLR 565 (refd)

Cooper v Wandsworth Board of Works (1863) 14 CB NS 180; 143 ER 414 (refd)

D, Re [1959] 1 QB 229 (refd)

Davies v Davies (1887) 36 Ch D 359 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (refd)

Earl of Chesterfield v Janssen (1750) 2 Ves Sen 125; 28 ER 82 (folld)

Egerton v Earl Brownlow (1853) 4 HLC 1; 10 ER 359 (folld)

Farnell v Chanbua (2016) 56 Fam LR 84 (refd)

Fender v St John-Mildmay [1938] AC 1 (folld)

Foo Jong Peng v Phua Kiah Mai [2012] 4 SLR 1267 (refd)

Fynn, Re (1848) 2 De G & Sm 457; 64 ER 205 (refd)

G, Re [2006] 1 WLR 2305 (refd)

Hitchcock v WB [1952] 2 QB 561 (refd)

Hope v Hope (1854) 4 De G M & G 328; 43 ER 534 (refd)

J v C [1970] AC 668 (folld)

Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 (folld)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112; [2006] 1 SLR 112 (refd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2018] 2 SLR 866 (refd)

Lim Meng Suang v AG [2015] 1 SLR 26 (refd)

Marriage of Cynthia J and Robert P Moschetta, Re 25 Cal App 4th 1218 (1994) (refd)

McGrath, Re [1893] 1 Ch 143 (folld)

Mitchel v Reynolds (1711) 1 P Wms 181; 24 ER 347 (refd)

O, Re [2004] 1 AC 523 (refd)

Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (refd)

O'Connor v A [1971] 1 WLR 1227 (refd)

Patel v Mirza [2017] AC 467 (refd)

PP v Manogaran s/o R Ramu [1996] 3 SLR(R) 390; [1997] 1 SLR 22 (refd)

R, Re [1967] 1 WLR 34 (refd)

R v Chief National Insurance Commissioner, ex parte Connor [1981] QB 758 (folld)

R v Lavigne [2006] 1 SCR 392 (folld)

R v Ministry of Defence, ex parte Smith [1996] QB 517 (refd)

R v Registrar General, ex parte Smith [1991] 2 QB 393 (folld)

Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52 (refd)

Richardson v Mellish [1824–34] All ER Rep 258 (refd)

Riggs v Palmer 115 NY 506 (1889) (refd)

S S, Re [1974–1976] SLR(R) 230; [1972–1974] SLR 631 (folld)

Sim Thong Lai, Re [1955] MLJ 25 (refd)

Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430; [1998] 1 SLR 234 (folld)

S-T v J [1998] Fam 103 (folld)

Sun Life Assurance Co of Canada v Jervis [1944] AC 111 (refd)

T, Petitioner 1997 SLT 724 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850, CA (refd)

Tan Cheng Bock v AG [2017] 5 SLR 424, HC (refd)

Tan Seet Eng v AG [2016] 1 SLR 779 (refd)

Thain, Re [1926] Ch 676 (folld)

TSH v TSE [2017] SGHCF 21 (folld)

United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4 SLR(R) 884; [2006] 4 SLR 884 (refd)

W, Re [1998] Fam 58 (refd)

Walton v Scottish Ministers [2013] PTSR 51 (refd)

Wan Yijun, Re [1990] 2 SLR(R) 157; [1990] SLR 845 (refd)

Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304 (refd)

Willers v Joyce [2018] AC 779; [2016] 3 WLR 477 (refd)

WX v WW [2009] 3 SLR(R) 573; [2009] 3 SLR 573 (folld)

X, Re [2015] Fam 186 (distd)

X, Re [2009] Fam 71; [2009] 1 FLR 733 (refd)

Z, Re [2015] 1 WLR 4993; [2015] EWFC 73 (refd)

Legislation referred to

Adoption of Children Act (Cap 4, 2012 Rev Ed) ss 3(1), 5(b), 11 (consd); ss 2, 3, 3(3)-3(5), 3(3), 3(4), 4, 4(1), 4(2), 4(3), 4(4), 5, 5(a), 5(c), 7(1), 7(1)(a)

Adoption of Children Act (Cap 43, 1970 Rev Ed) s 3(4)

Adoption of Children Ordinance 1939 (SS Ord No 18 of 1939) ss 3(1)(3), 5(b), 10

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 122, 124, 124(1), 124(2), 140, Third Schedule para 15, Third Schedule para 15(1), Third Schedule para 15(2)

Evidence Act (Cap 97, 1997 Rev Ed) s 114(1)

Guardianship of Infants Act (Cap 122, 1985 Rev Ed) s 3 (consd); ss 4, 6

Interpretation Act (Cap 1, 2002 Rev Ed) ss 2(1), 23

Land Titles Act (Cap 157, 2004 Rev Ed) ss 46(2), 160(1)

Penal Code (Cap 224, 2008 Rev Ed) ss 377A, 378, 383, 390

Private Hospitals and Medical Clinics Act (Cap 248, 1999 Rev Ed) s 6(5)

Private Hospitals and Medical Clinics Regulations (Cap 248, Rg 1, 2002 Rev Ed) reg 4

Status of Children (Assisted Reproduction Technology) Act (Cap 317A, 2015 Rev Ed) ss 3, 6, 7, 8, 9(3), 10, 10(1), 10(7)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) Fifth Schedule para (e)

Women's Charter (Cap 353, 2009 Rev Ed) ss 46(1), 125(2)

Adoption (Scotland) Act 1978 (c 28) (UK) ss 24, 51(1)(c)

Adoption Act 1976 (c 36) (UK) s 24(2)

Adoption and Children Act 2002 (c 38) (UK)

Adoption of Children Act 1926 (c 29) (UK) ss 3(b), 9

Children Act 1975 (c 72) (UK)

Custody of Children Act 1891 (c 3) (UK)

Guardianship of Infants Act 1886 (c 27) (UK)

Guardianship of Infants Act 1925 (c 45) (UK) s 1

Human Fertilisation and Embryology Act 1990 (c 37) (UK)

Human Fertilisation and Embryology Act 2008 (c 22) (UK) ss 33, 48(1), 54

Supreme Court of Judicature Act 1873 (c 66) (UK)

Family Law — Adoption — Gay man applying to adopt child born overseas through gestational surrogacy — Adoption increasing child's chances of obtaining Singapore citizenship and remaining in Singapore permanently — Whether adoption for welfare of child — Meaning of welfare of child — Whether welfare “first and paramount consideration” in adoption proceedings — Meaning of “first and paramount” — Section 5(b) Adoption of Children Act (Cap 4, 2012 Rev Ed) — Section 3 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

Family Law — Adoption — Guardian-in-Adoption opposing gay man's application to adopt child on grounds of public policy relating to parenthood and family units — Lower court dismissing application on grounds of public policy against surrogacy — Gay man contending that welfare of child overriding any relevant public policy consideration — Whether court had basis for taking public policy considerations into account — How court should take such considerations into account — Meaning of public policy — Section 3(1) Adoption of Children Act (Cap 4, 2012 Rev Ed)

Family Law — Adoption — Surrogate mother being paid to hand baby over upon delivery and to relinquish parental rights — Whether payment was in consideration of adoption made to parent of child to be adopted — Whether court should sanction payment — Effect of unlawful payment and sanctioning of such payment — Section 11 Adoption of Children Act (Cap 4, 2012 Rev Ed)

Statutory Interpretation — Construction of statute — Statutory provision stating that court “may” make order — Whether provision conferred discretion on court to make order — Whether court had to make order if all statutory conditions were satisfied — Whether court might take public policy considerations into account in exercising discretion — Section 3(1) Adoption of Children Act (Cap 4, 2012 Rev Ed)

Facts

The appellant, a gay man, visited the US with his long-term male partner to procure a child through the use of assisted reproductive technology (“ART”). There, they entered into a gestational surrogacy agreement (“GSA”) with a surrogate mother, M, whom they paid 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 for the procedure. M eventually gave birth to the appellant's biological son (“the Child”). She relinquished her parental rights over the Child, whom the appellant and his partner then brought to Singapore, where the Child was permitted to remain temporarily under a long-term visit pass.

Hoping to increase the Child's chances of obtaining Singapore citizenship and remaining in Singapore permanently, the appellant applied under the Adoption of Children Act (Cap 4, 2012 Rev Ed) (“the Act”) to adopt the Child. The Director of Social Welfare of the Ministry of Social and Family Development (“the MSF”) was appointed the Child's Guardian-in-Adoption (“the Guardian”). She opposed the application through a report stating that the adoption would be contrary to public policy, given that same-sex marriage was not recognised under Singapore law and the appellant was seeking to form a family unit with his male partner.

The district judge (“District Judge”) dismissed the application mainly because in her view, the requirement under s 5(b) of the Act that the adoption be for the Child's welfare was not satisfied. She did not think that the benefits that the Child would receive from being adopted by the appellant were material. Even if the adoption would increase the Child's prospects of acquiring citizenship, it would be unjust to allow the adoption because it would amount to ratifying the appellant's attempt to take advantage of a loophole by going overseas to procure the Child through gestational surrogacy, which was legally unavailable in Singapore as well as ethically problematic in the view of the District Judge. The District Judge also considered the payment to M to be prohibited by the Act.

The appellant appealed against the District Judge's decision, contending principally that the adoption...

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