Who are the legal parents of children conceived through assisted reproduction?
The use of Assisted Reproduction Technologies (ART) is on the rise in Singapore, helping many who would otherwise be unable to conceive and deliver a child. However, the issue of the legal status of children born through ART has thus become more of a concern to many parents, since parenthood cannot be defined in the typical way.
Types of assisted reproductive methods available
Reproductive methods allowed in Singapore include the placing of an embryo or of sperm and eggs in a woman, and artificial insemination. Examples of artificial insemination are in-vitro fertilization, intracytoplasmic sperm injection, and gamete intra-fallopian transfer. The government co-funds approved assisted reproduction technology treatments at public hospitals.
Surrogacy is not permitted in Singapore, while egg freezing is permitted for women aged between 21 and 37.
Who does the Status of the Child (Assisted Reproduction Technology) Act apply to?
The Status of the Child (Assisted Reproduction Technology) Act (SCARTA) clarifies the legal parenthood and status of children conceived through ART.
SCARTA applies only to a child born as a result of a fertilisation procedure where:
(a) The child is born in Singapore; or
(b) Any of the following persons is domiciled in Singapore upon the birth of the child:
- The gestational mother of the child;
- The husband, if any, of the gestational mother at the time of the fertilisation procedure as a result of which she carried the child;
- The de facto partner, if any, of the gestational mother at the time of the fertilisation procedure as a result of which she carried the child;
- The person whose sperm or egg the child was brought about with;
- The person who consented to the fertilisation procedure.
If by virtue of SCARTA, a person is to be treated as the mother or father of the child, then that person is in law the only mother or father of the child.
Who is the legal mother of children born through ART?
The gestational mother of the child i.e. the woman who carries the child as a result of ART whom is later born, shall be treated as the mother of the child from the date of birth of the child. This is independent of whether the fertilisation procedure is conducted in Singapore or overseas.
What about Sperm and Egg Donors?
Sperm and egg donors will not ordinarily be treated as the parents of the child, unless they fall into one of the other categories (such as gestational mother, or husband of the gestational mother, etc).
Who is the legal father of children born through ART?
There are a few categories that can be used to qualify a man as the legal father of the child born through ART.
As the husband
The husband of the gestational mother at the time of undergoing the fertilisation procedure that brought about the child will be treated as the father of that child in the following conditions:
- If the sperm of the husband was used to bring about the child
- If the sperm of the husband was not used in the procedure, but the husband consented to the fertilisation procedure
- If the sperm of the husband was not used, and the husband did not consent to the procedure at the time it was carried out, but the husband through a course of conduct accepted the child as a child of their marriage, knowing that the child was not brought about with his sperm
The above 3 categories are also applicable to de facto partners (defined in the next section) of the gestational mother at the time of the fertilisation procedure who later marry the gestational mother at any time after the procedure.
As the de facto partner (unmarried)
A de facto partner should be interpreted as the man with whom the gestational mother is living in a relationship as if he were her spouse at that point in time.
For de facto partners of the gestational mother, the same 3 categories apply as above, except that there is an additional step of making an application to the court to determine parenthood of the child. Then, the court has to declare that the de facto partner be treated as the father of the child.
In addition, if the gestational mother had a de facto partner at any time after she underwent the fertilisation procedure, and did not marry him at any time after the procedure, and the sperm of that partner was used, this is also another category in which a de facto partner may, upon an application made to the court, be declared as the father of the child.
As someone who has consented to fertilisation procedure
Consent or withdrawal of consent to a fertilization procedure is only deemed valid if it is given in writing, whether the procedure be done in Singapore or elsewhere.
Written consent or written withdrawal of consent that adheres to any laws or requirements by the responsible authority in respect of the fertilisation procedure is presumed valid, unless the contrary is proved.
What if there is a mix-up, and the egg, sperm, or embryo used is not the one intended to be used?
If such a mix-up occurs, resulting in the birth of a child, whether due to any mistake, negligence, recklessness or fraud, parenthood of the child born as a result will be determined in accordance with the normal rules, as if the mix-up had not occurred, and the child was brought about with the intended egg, sperm, or embryo.
This is so as to prevent such a child from being parentless.
However, the court may in its discretion, and upon an application made, declare another person the parent of the child. This application has to be made within 2 years after the date on which the applicant discovered that the child was born as a result of a mix-up in the ART.
Your rights or remedy against any other person in relation to a fertilisation procedure which resulted in the birth of a child are independent.
Application to determine parenthood
When parenthood of a child is to be determined, the welfare and best interests of the child is the first consideration of the court.
Even where a couple is not considered to be the legal parents of a child through SCARTA, it may be possible for them to legally adopt the child.
This article is contributed by Denise Ee, a student at NUS School of Law.
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