Hiring a Surrogate: 6 Legal Issues for Singaporean Couples
According to the Ministry of Health (MOH), surrogacy refers to the arrangement where:
“a woman is artificially impregnated, whether for monetary compensation or not, with the intention that the child is to be the social child of some other person or couple”.
Commercial surrogacy often involves a fee paid to the surrogate mother. By hiring a surrogate mother, you are essentially hiring a woman to carry and deliver a child for you.
Both heterosexual and homosexual couples may consider surrogacy as an option for having children. For heterosexual couples, surrogacy may be considered when the intended mother is unable to conceive, or if pregnancy is risky for her. For homosexual couples who are not able to conceive but desire to have a child, surrogacy may be an option for them to have a biologically-related child.
If you are thinking of exploring the option of surrogacy, it might be helpful to consider some of the following legal issues before hiring a surrogate.
1. Legality of Surrogacy in Singapore
The provision of surrogacy services is currently illegal in Singapore. The MOH has released a directive prohibiting Assisted Reproduction (AR) centres here from carrying out surrogacy services, and any AR centre found to be doing so can have its licence suspended or revoked.
While it does not appear that individuals obtaining surrogacy services from AR centres in Singapore will face any criminal penalty for doing so, they may face difficulties in relation to formalising their relationship with the child (see below).
2. Engaging a Surrogate Mother Overseas
Since the provision of surrogacy services is illegal in Singapore, single and married persons who intend to be parents in Singapore have gone to countries like the United States (US), Malaysia and Laos to seek surrogacy arrangements. The obtaining of surrogacy services overseas is currently not illegal in Singapore.
Previously, India and Thailand were also popular options. In recent years however, the governments in these countries have cracked down on doctors who perform surrogacy procedures. In July 2015, Thailand implemented a law banning foreigners from entering into commercial surrogacy arrangements and contracts with its citizens. India later followed suit to ban foreigners from commercial surrogacy as well.
That being said, there has been an increasing number of couples from Singapore seeking surrogacy arrangements overseas. It was even reported that no less than 15 children born via surrogacy arrangements in the US were brought back to Singapore in 2017.
However, engaging a surrogate mother overseas comes with risks and thus may not be advisable. For example, even if surrogacy is legal in another country, it is unlikely that the Singapore courts will enforce agreements for the provision of surrogacy services since it is illegal here.
Thus, should any problems arise, such as the surrogate mother backing out of the agreement and deciding to keep the child for herself, there may be little that can be done to enforce the agreement back here in Singapore. If so, further complications pertaining to the child’s citizenship and parental rights may surface.
3. Use of Donor Eggs/Sperm
If you and/or your partner are not able to provide eggs or sperm due to certain reasons, it may be possible to use donor eggs or sperm.
This is also known as “gestational surrogacy” where the egg and sperm of either the intended parent(s) or donor(s) are fertilised. Thereafter, the fertilised embryo will be implanted in the surrogate mother.
Whether you will be able to obtain gestational surrogacy services depends on the laws of the country where you intend to obtain such services. Generally, states in the US which allow gestational surrogacy require at least one of the intended parents to be genetically related to the child. Examples of these states include Illinois, Florida and Virginia. There appears to be no prohibition on the use of eggs or sperm from anonymous donors.
On the other hand, in Canada, a law was passed in 2011 to prohibit egg or sperm donors from remaining anonymous.
4. Obtaining Parental Rights Over the Child
Who will have parental rights (i.e. the legal rights and responsibilities which parents have over their children) over a child born through surrogacy arrangements may differ according to the laws of the country in which the child was born.
In some countries supportive of surrogacy agreements such as the US, the intended parent(s) can secure parental rights to the child even before he/she is born.
On the other hand, in Laos, where surrogacy agreements are legal but not supported, the birth certificate will reflect the surrogate mother and intended father as the legal parents. The intended mother will not have any parental rights over the child.
Malaysia’s position on this appears to be rather murky. However, it seems that if the surrogate mother is married, the legal parents of the child will be the surrogate mother and her own husband (and not the intended father!).
If the surrogate mother and her husband have been given parental rights over the child, there may currently be no laws in Singapore that allow the intended parent(s) to apply to be made the child’s legal parents.
Instead, the intended parent(s) may need to adopt the child in order to obtain parental rights over them (see next section).
5. Adopting the Child
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#ICYMI 👀 – In a recent landmark case, a gay Singaporean man was allowed to adopt his biological son who was conceived through surrogacy arrangements in the US. 🤧 Though his initial adoption application was rejected, the court ultimately granted the adoption order as doing so would be in the child’s best interests.⠀⠀⠀⠀⠀⠀⠀⠀⠀ – Apart from ensuring that adoption will be in the child’s best interests, the court must also be satisfied that the adoption has been greenlit ✔ by everyone whose consent is required, such as the birth parent(s) of the child, and the adopting parent’s spouse. The adopting parent also cannot have been promised or given money for the adoption 💰 unless the court has allowed this. – Though the court granted the adoption order in this case, note that it doesn’t necessarily mean that an adoption order would be granted in similar future cases! 😣 This is because Singapore’s public policy is generally against the formation of same-sex family units, and the transactional nature of commercial surrogacy arrangements. It’s therefore best to think carefully if you’re considering this method of raising a child in Singapore! #SingaporeLegalAdvice
By adopting a child born through surrogacy arrangements, you would be considered the child’s legal parent. However, you may encounter difficulty while doing so.
Such an arrangement would likely be regarded by the Singapore authorities as being akin to you buying a child, making the service transactional in nature. This goes against the social policies behind Singapore’s adoption laws, which seek to prevent “the use of money to encourage the movement of life from one hand to another”.
In addition, surrogacy does not reflect the accepted traditional family structure here, as the child born through surrogacy may potentially have 3 parents (i.e. the couple and the surrogate mother).
Further, surrogacy also raises ethical and moral issues, and it also goes against the beliefs of certain religious groups, such as the Catholics.
That said, in 2018 the Singapore High Court allowed a gay Singaporean doctor to adopt his biological surrogate son. The doctor had been living together with his partner for around 13 years, and had conceived the child through commercial surrogacy in the US. Although Singapore public policy is against the formation of same-sex family units, the court granted the adoption application on the basis that doing so would be in the child’s interest.
This was because adoption would increase the child’s chances of getting Singapore citizenship (see below) and being able to stay in Singapore for the long-term, where his natural father and family support structures were.
Accordingly, it may be possible to adopt a child born through surrogacy if adoption would be in the child’s interest. However, there is no guarantee that your adoption application will be successful, and you should consider carefully before proceeding with this option.
6. Obtaining Singapore Citizenship for the Child
Generally, for most countries, the system of jus soli, or birthright citizenship, is followed. This means that a child will obtain citizenship in the country in which he/she is born.
For example, if the surrogate mother is based in the US and delivers the child there, the child will consequently hold US citizenship.
If you intend to and do bring the child you have conceived through surrogacy arrangements overseas back to Singapore, you may try to apply to the Immigration Checkpoints and Authority (ICA) to obtain Singaporean citizenship for him/her.
However, given the policy reasons stated in the previous point, the chances of the ICA granting your child Singapore citizenship may be slim. You may need to adopt your child first in order to have a higher chance of your child’s citizenship application being granted. And as mentioned in the previous point, being able to adopt a child born through surrogacy arrangements is not a given, and you may face difficulties while doing so.
All in all, surrogacy may not be the optimal choice considering the strong policy reasons against it in Singapore. While it is understandable that some couples may find difficulties conceiving and so need to make use of alternative routes to fulfil their desire of having a child, surrogacy is still not advisable.
Perhaps it would be better to consider the procedures approved in Singapore’s AR centres, such as In-Vitro Fertilisation.
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