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Gay Adoption and Judicial Decision Making, Singapore Style

by Remy Choo Zheng Xi, Peter Low & Choo LLC

UKM vs Attorney-General, the recent “gay adoption” case, is a study in difficult judicial decision making, Singapore style.

In summary, a three Judge bench of the Singapore High Court allowed a Singaporean gay father’s appeal to adopt his biological son conceived of a surrogate mother. The judgment was written by Chief Justice Sundaresh Menon.

The profundity of the effect of the judgment is difficult to overstate: with the stroke of a pen (and 145 pages of the written word), the future of a closely-knit stable family unit has been re-ordered the better. After all, how can you quantify the value of the sense of relief and comfort conveyed by a hug, “a little longer and a little tighter”?

However, it is equally difficult to overstate the narrowness of the basis of the decision.

Despite (or perhaps because of) the boldness of the outcome in the case before it, the Court emphatically asserted and developed its theory of judicial restraint, i.e. of not second-guessing the Executive and Legislature in their decision-making more generally.

So, in one sense, the case is bold. The Judges bucked public policy (hostility to the formation of same-sex family units) to uphold the welfare of a Child born to a gay man. The judgment effectively lets the father of the Child bring his son up in a loving family unit with his long-term same-sex partner.

However, those tempted to cheer the judgment as a paradigm of judicial activism should moderate their expectations. The judgment also re-affirms that legislative intent is front and centre of the Court’s decision-making process more broadly.

In the judgment, the Court weighed the purpose of the Adoption of Children Act in one scale and asked: what is in the best interest of the welfare of the Child?

In the other scale, the Court measured out the absence of legislative policy against surrogacy and public policy against the formation of same-sex family units.

Ultimately, the welfare of the child weighed more heavily in the Court’s mind.

Interpretation of the Adoption of Children Act

In UKM, the main question as framed by the Court was whether an Adoption Order would be in the best welfare of the Child under Adoption of Children Act.

The “pivot” on which the case turned is found in paragraph 60 of the judgment: during oral arguments, the Court invited lawyers for the Government to address the Court on the Child’s prospects of remaining in Singapore in the long term, irrespective of the adoption proceedings.

The Government was unable to respond because counsel did not have instructions. As a result, the Court found that there was uncertainty over whether the Child could remain in Singapore if the Adoption Order were not granted.

Following from the Government’s position, the Court reasoned that if granting the Adoption Order could increase the Child’s chances of remaining in Singapore with his family in the long term, then the Adoption Order should be granted.

Reviewing the relevant citizenship provisions in the Constitution, the Court held that if the Adoption Order were granted, the Child could at least be considered for citizenship by descent under Article 124 (1) of the Constitution. If the Adoption Order were not granted, the Child would have to apply under Article 124 (2), which would require “special circumstances” before citizenship were granted.

Apart from the citizenship issue, the Court chose not to give significant weight to the following three other reasons advanced by the father: –

  1. That adoption would have a transformative effect on the wellbeing of the Child as it would confer “legitimacy” on the child;
  2. That adoption would conclusively sever any residual rights the surrogate mother of the child may have; and
  3. Benefits that adoption may confer in a situation where either parent died without leaving a will.

The Court also chose not to give any weight to an argument by the AG that the child might face social stigmatisation and confusion because he was being brought up in an “unconventional family” in the context of a “predominantly conservative society in Singapore”.

In deciding UKM, the Court was very careful to emphasize that their decision on the Adoption Order was made “on the particular facts of this case”.

“Public policy” and Judicial decision-making

While the outcome of this particular case is worth celebrating, the broader significance of the judgment is more conventional and in line with more conservative Singaporean judicial thought.

In a nutshell, the broader message arising out of this judgment is that if a piece of legislation involves a socio-economic or legal issue, the Courts are very unlikely to second guess the policy approach of the Executive or Legislature.

The message from the Court is clear: when it comes to matters of public policy, the role of the Court is to, in the words of the Chief Justice “expound, and not to expand”. In case you don’t get the memo, the judgment is emphatic: “The courts are not the vanguard of social reform” (emphasis mine).

Where the resolution of a legal issue involves legislation of a socio-economic or legal nature, the Chief Justice Menon affirms that “the court should, as a general rule, be very cautious about resting its decision on public policy”.

The Chief Justice goes on to explain that the Singapore Courts would be “very slow to decide a case based on any adaptation of the legislative regime founded on what they themselves happen to think about the asserted public policy, whether socio-economic or legal, even if the relevant legislation is revealed to be lacking in some respect”.

As demonstrated earlier, in the balancing exercise, the conservative approach to interpreting legislative intention by the Courts worked to the father’s advantage in this case.

Reviewing legislative debates, the Court found itself unable to see a clear public policy against surrogacy.

In summary, the way the Court was able to thread the needle and rule in favour of the father was: –

  1. To find that it was in the welfare of the child to make the Adoption Order;
  2. To determine that there was no public policy against surrogacy;
  3. There is a public policy against formation of same-sex family units;
  4. But on balance, the welfare of the needs to be placed first.

Progressive Enough?

UKM is a judgment that, in many ways, is as notable for what it is not rather than what it actually is.

UKM is not a constitutional case, i.e. it is not a case involving a fundamental liberty protected under the Constitution such as the right to equal protection under the law (Article 12) or the right to life and liberty (Article 9).

To the extent that anyone reading UKM may want to crystal-ball gaze into what the Courts’ approach may be to a constitutional question (for instance, s377A), looking for clues in the judgment may prove futile. Indeed, the Chief Justice specifically said it was not making any comment on the issue of S377A in light of one or more pending cases.

It is also important to highlight that although the judgment identifies certain policies that are clearly discriminatory against LGBTI persons, the Judgment refuses to make any value judgment about the correctness of such policies.

Ultimately, UKM is a judgment that, in a phrase used by the Chief Justice, “may not be progressive enough for some” but “may be too progressive for others”.

The full judgment can be found here: https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ukm-v-attorney-general.pdf

The above post is first published as a Facebook note by Mr Choo and reproduced with permission.