Hard choices on surrogacy in Singapore

Hard choices on surrogacy in Singapore: Balance between allowing it and preventing abuse

The Straits Times   Yuen Sin    17 Jan 2019

In some Western societies, surrogacy arrangements are accepted. But Singapore has to find its own balance between allowing parents this option while preventing abuse of this practice, which can be exploitative of poor women.

When reality star Kim Kardashian gave birth to her first child North six years ago, she had to deal with placenta accreta, a condition that can cause complications during pregnancy in which all or part of the placenta attaches to the womb.

"My doctor had to stick his entire arm in me and detach the placenta with his hand, scraping it away from my uterus with his fingernails. How disgusting and painful," she said on her blog, calling her daughter North's birth "the most painful experience of my life".

She also experienced similar issues when she gave birth to her second child in 2015. So when she wanted to try for another child in 2017 , Kardashian and her rapper husband Kanye West decided she would not carry the child on her own.

Instead, an egg from Kardashian, that was fertilised with West's sperm, was implanted into the womb of a surrogate mother, a method known as gestational surrogacy in which a woman carries a baby who has no biological relationship with her. Traditional surrogacy, on the other hand, involves artificially inseminating the surrogate's own egg with the intended father's sperm, or with a donor's sperm. According to reports, the surrogacy agency was paid a fee of US$68,000 (S$92,000), while the surrogate mother - a married housewife - received US$45,000.

Earlier this month, Kardashian announced that she is expecting a fourth child through surrogacy.

In the United States, where commercial surrogacy is legalised in some states, such arrangements have become more common over the years.

But should Singapore attempt to keep up with the Kardashians when it comes to the issue of allowing for surrogacy to take place here?

The issue was brought back into the public spotlight last month when the High Court granted a gay man's appeal to adopt his five-year-old biological child, who was conceived through commercial surrogacy in the United States. This will make it easier for the child, now an American citizen, to secure Singapore citizenship.

It has exposed grey areas in Singapore's regulation of surrogacy, and led some commentators to call for more clarity on the Government's stance on this issue.

Though Singapore does not have explicit laws against surrogacy here, the Ministry of Health (MOH) prohibits licensed healthcare institutions from carrying out surrogacy arrangements. Over the last decade, though, the Ministry of Social and Family Development has backed adoption bids by 10 married couples who had gone for surrogacy services abroad.

Following the High Court ruling, Minister for Social and Family Development Desmond Lee also said in Parliament this week that the authorities here will look into the complex issue of surrogacy, which has "ethical, social, health and legal implications for all parties involved''.

"Whether we should completely prohibit surrogacy by Singaporeans within Singapore or all over the world... it's something that we must consider holistically and carefully, keeping in mind the wishes, aspirations and concerns of mothers who would otherwise not be able to conceive their own flesh and blood," he said, adding that adoption laws are also being reviewed.

As the Government ponders how Singapore should deal with surrogacy, and perhaps introduce guidelines that can better regulate existing practices, here are three issues that analysts say should be addressed:

1. SHOULD OVERSEAS SURROGACY BE DISCOURAGED?

If the Government allows children who have been conceived abroad through surrogacy to be adopted by their parents here, or grants them Singapore citizenship, it may have the unintended effect of encouraging citizens to pursue overseas surrogacy even if this is not condoned currently, says Singapore Management University (SMU) law professor Tan Seow Hon.

"As a result, the Government indirectly fuels the surrogacy industry and becomes complicit in ethical problems associated with surrogacy," she points out.

If the ethical problems associated with surrogacy are serious enough, the Government may choose to take action, such as by amending adoption laws to specifically prohibit adoption in surrogacy cases, she suggests, thus refusing to legitimise the parent-child relationship. This could then deter many from seeking surrogacy, she says.

If Singapore wants to crack down on such overseas arrangements, it may follow Australian states such as Queensland and New South Wales, which have made it an offence for residents to make commercial surrogacy arrangements in a foreign country. But SMU law don Eugene Tan points out that such restrictions may not be effective in preventing hopeful parents from pursuing surrogacy, as some may just ignore the local prohibition despite potential penalties.

"People can and will pursue such transactions abroad and policing it is a challenge even if it is outlawed. If the relevant parties do not disclose a surrogacy, the Government will be none the wiser."

If the Government wants to permit Singaporeans to pursue surrogacy arrangements abroad, says veteran family lawyer Rajan Chettiar, proper guidelines should be introduced to better regulate the situation.

For instance, it can put up a list of approved countries where such services can be pursued by Singaporeans to ensure that such transactions comply with standards set by the Government, and provisions should be made for a child to be adopted by a couple when they return to Singapore.

A commissioning couple should also make a declaration of how much they have paid, adds Mr Chettiar. Given that it may not always be feasible to enter into altruistic surrogacy arrangements abroad, the issue of payment requires further exploration.

2. SHOULD ONE PAY FOR SURROGACY SERVICES? 

Commercial surrogacy involves a fee paid to the surrogate mother and is typically arranged by a broker. Last year, India's Lower House of Parliament passed a Bill that banned all forms of commercial surrogacy while allowing altruistic surrogacy for infertile, married Indian couples, following concerns about the exploitation of young, poor Indian women who bear babies for others.

National University of Singapore law professor Thio Li-ann says such arrangements raise troubling class issues. "Rich folk pay poor folk to be a baby container; the rich will be able to exploit the poor. The surrogacy option becomes a privilege for the wealthy," she adds, noting that the high cost involved in such transactions, which can go up to $200,000, is "prohibitive for most people".

International activists, however, have said that a ban may simply drive such transactions underground.

Though such a ban was enacted in 2016 in Cambodia, brokers and young women in the country continue to engage in such transactions for lucrative payouts from Chinese clients even at the risk of jail time, according to news agency reports.

3. CAN NON-COMMERCIAL SURROGACY BE ALLOWED?

SOME PEOPLE RECKON THAT SINCE IT IS INEVITABLE THAT SOME SINGAPOREANS WILL ENGAGE IN SURROGACY, IT IS BETTER TO SET SOME RULES TO GOVERN THIS PRACTICE.

Mr Chettiar suggests that just as the Singapore Government has addressed potential ethical issues over adoption by having strict regulations against financial incentives and requiring comprehensive checks on parents, the same could be done for surrogacy.

As a first step to take, Singapore could look into allowing for altruistic surrogacy to take place domestically, where the surrogate mother is not paid or paid only for reasonable expenses, he adds. This is allowed in countries like Denmark and Belgium.

But Prof Tan Seow Hon points out that under one possible form of altruistic surrogacy, in which close relatives are asked to be surrogates for family members, some women may feel pressured into being surrogates.

It could also pose other complications, she notes. "What if the surrogate does not want to hand the child over because of her maternal bonds? If the law allows the surrogate to retain the child, it is not fair to the commissioning parents who provided the gametes (egg and sperm), but if the law takes the child from the surrogate, why should a gestational mother be treated as less than the genetic mother? There is no easy way to resolve the ethical dilemma."

Dr Chia Shi Lu, chairman of the Government Parliamentary Committee for Health and an MP for Tanjong Pagar GRC, adds that clear definitions will have to be laid out to differentiate commercial transactions from altruistic ones if altruistic surrogacy is allowed.

"Even if you don't pay a sum of money (to the gestational mother)... would other expenses after the child has been delivered, such as hiring a maid for the surrogate or giving her a place to stay for a few years, be seen as financial incentives?"

To prevent a "slippery slope" of surrogacy backsliding into a selfish and convenient lifestyle option rather than medical necessity to have children, researcher Alexis Heng proposed - in a paper back in 2007 - that the MOH should review and approve surrogacy on a case-by-case basis for each and every individual patient if it is allowed here.

"Otherwise, the younger generation of Singaporean women might be encouraged to delay marriage and motherhood in pursuit of educational and career commitments if they realise that they can easily and conveniently opt to start a family later with gestational surrogates," he said.

Still, surrogacy can be a sensitive issue in Singapore's multi-religious context, as Islam and the Catholic faith may not condone surrogacy, says Mr Chettiar. "On that basis, it could be difficult for the Government ( to take a stand), and it may need to talk to the groups to engage them if it does make a decision."