How IVG could challenge Singapore's laws on same-sex parenthood

Singapore will face legal challenges with in vitro gametogenesis (IVG)-conceived children of de facto same-sex couples.

The derivation of functional eggs and sperm from stem cells through in vitro gametogenesis (IVG) represents a major game-changer in reproductive medicine. Although IVG has only been proven feasible in rodent models to date, it is highly plausible that such scientific breakthroughs could be replicated in humans in the near future.

Besides people with infertility, IVG is also of intense interest to many same-sex couples who would like the opportunity to have children that are genetically related to both parents (see BioNews 1184). Major changes in legal statutes that define parenthood in many countries are thus anticipated, to accommodate such changes in biological/genetic relatedness within LGBT (lesbian, gay, transsexual and bisexual) families brought about by IVG.

Even in some jurisdictions that recognise same-sex unions, when a same-sex couple has a child, the non-genetically related partner may not be automatically recognised as a legal parent and may have to adopt to become one.

This can occur when a gay couple have a child through surrogacy. Some jurisdictions only recognise the father who provided the sperm as the legal parent. But what if the other partner also provided his genetic material for the egg through IVG? Does he not also deserve automatic parenthood rights due to his biological/genetic links to the child?

A similar question would arise for lesbian couples, in jurisdictions where only the birth mother is automatically recognised as the legal parent, but not her female partner. For example in Singapore, only the legally-wedded husband of the birth mother can gain automatic legal parenthood recognition as the father, while her female partner is denied any legal status as either a spouse or parent. This is the case even if the female partner has genetic links to the child via egg donation to the birth mother. There will be similar questions on the parenthood rights of the other female partner if she had instead contributed her genetic material through an IVG-generated sperm that conceived the child.

Hence, changes in legal statutes that define parenthood are thus needed to address such thorny questions on biological/genetic relationships within LGBT families, brought about by the advent of IVG technology.

In Singapore, there is currently no legal recognition of same-sex couples, in the form of marriage or civil partnership. This is unlikely to change in the foreseeable future due to changes in the country's constitution that protect the definition of marriage as 'between a man and a woman', which can only be amended by the Singapore parliament. Therefore, a situation similar to that in the United States, where a legal challenge mounted by an individual through the courts eventually led to the recognition of same-sex marriages, can no longer materialise in Singapore.

Additionally, legal obstacles have also been placed to block de facto same-sex couples in Singapore from jointly adopting children or having them through surrogacy. Section 4 of 'The Adoption of Children Act 2022', explicitly states that only couples whose marriages are recognised under Singapore law are allowed to adopt. The Singapore Government has stated several times that it is a matter of public policy that they do not support the formation of same-sex family units in the country.

However, one partner of a same-sex couple can still legally adopt a child as a single person in Singapore, the only restriction being that a single man is barred from adopting a female child. Hence, it is still possible for a same-sex couple to have a child through surrogacy and bring him/her back to Singapore, through legal adoption by just one of the partners. However, should the relationship break down, the legal adoptive parent will have sole child custody rights? It would be completely up to him/her to decide whether or not to grant child visitation and access rights to their former partner.

The prospect of IVG technology enabling genetic relatedness of the child to both partners has the potential to alter such situations, with new legal challenges arising from outside the context of adoption law and marriage definition. Although it is very unlikely that application of IVG for same-sex couples will be permitted locally due to sociocultural factors in Singapore, there is nothing to stop them from undergoing the IVG procedure overseas.

Legal challenges pertaining to parenthood status of IVG-conceived children will most likely arise from established legal precedents that emphasise the importance of genetic affinity and blood ties between children and parents, as well as prioritising the child's welfare above public policy based on societal norms. After all, Singapore is a common-law jurisdiction that places heavy emphasis on legal precedents in court rulings.

For example, in the court ruling of the IVF sperm mix-up case by Thomson Fertility Centre a few years ago, it was explicitly stated that: 'The ordinary human experience is that parents and children are bound by ties of blood and this fact of biological experience – heredity – carries deep sociocultural significance.'

In another landmark court case, in which the Singapore High Court granted a gay man's bid to adopt his biological son born via surrogate, the Chief Justice declared that the need to promote the welfare of the child is paramount, and outweighs public policy against the formation of same-sex family units.

Legal challenges might also arise from the lack of gender equality in assigning citizenship rights to IVG-conceived children of same-sex couples. Currently, only the illegitimate child born of a lesbian woman is automatically entitled to Singapore citizenship, but not the illegitimate biological child of a gay man. The advent of IVG will likely increase the clamour for gender equality in assigning child citizenship rights to same-sex couples in Singapore.

Hence, there is a dire need to review and amend laws pertaining to parenthood definition, child citizenship and custody rights in Singapore, should human IVG materialise in the near future. Or else, this will likely lead to long and complicated court cases.