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Should Singapore legalize surrogacy to better protect all parties involved?

Proposed ethical guidelines and legislative framework for permitting gestational surrogacy in Singapore

Introduction

     Surrogacy in Singapore is a complex and highly debated topic, characterized by significant ethical, social, and legal challenges. These challenges arise from the current prohibition of surrogacy procedures within Singapore and the increasing trend of Singaporeans seeking these services abroad. Here are the central challenges:

1. Ethical Challenges:

1.1 Exploitation and Commercialization

     Unregulated surrogacy poses risks, particularly to economically disadvantaged women from poorer countries, who may be unduly induced by monetary reimbursement. While current Singaporean society may find commercialized surrogacy morally repugnant, there is a debate on whether surrogate mothers should receive substantial financial remuneration or be altruistically motivated. There's also a risk of illicit under-the-table payments if altruistic surrogacy is mandated.

1.2 Welfare of the Child

     Ethical concerns arise regarding children born with congenital deformities, including questions of abortion, abandonment, and the commissioning parents' refusal to accept the child. The "Baby Gammy" case, where a child with Down syndrome was abandoned, highlights these issues. It's proposed that surrogacy contracts should legally bind recipient couples to accept the child, even with deformities.

1.3 Lifestyle Choice Versus Medical Necessity

    There are some concerns that upon legalizing surrogacy, this could become a "selfish and convenient lifestyle choice" rather than strictly a medical necessity, potentially encouraging women to delay marriage and motherhood. This is viewed as anathema to Singapore's promoted 'Asian family values'.

 1.4 Medical Practices and Professional Ethics

    Questions arise about the ethical justification of subjecting healthy and fertile surrogates to expensive, invasive procedures like IVF and ICSI when simpler, cheaper alternatives like Intrauterine Insemination (IUI) might suffice. There's also concern about "shopping for quality or designer genes" if third-party donor eggs are unnecessarily used, which could lead to accusations of treating babies as commodities. To prevent conflicts of interest, it's proposed that medical professionals should be strictly limited to providing fertility treatment and not be involved in the recruitment, counseling, or reimbursement of surrogates.

1.5 Conflicting Values

    Surrogacy raises "difficult questions about ethics, the value of life and the role of medical technology". Unlike Western discourses emphasizing individual rights, reproduction issues in Singapore, similar to Hong Kong, are framed more as an obligation to carry on the family line, influenced by Confucian ideas of placing "society above self". This leads to a generally muted discourse about individual reproductive rights.

2. Legal Challenges:

2.1 Prohibition and Lack of Legal Framework

    Surrogacy procedures are currently prohibited in Singapore, but there are no laws banning Singaporean residents from engaging in surrogacy arrangements abroad. To date, there is no comprehensive legal framework to address overseas surrogacy arrangements involving Singaporean residents, leading to inconsistencies and injustice. The Ministry of Social and Family Development is still reviewing its position.

2.2 Transnational Complications

    Singaporeans seeking surrogacy overseas face significant legal hurdles in applying for adoption, residency, and citizenship for their children. Transnational arrangements can result in cross-border legal tussles, exploitation, and even stateless orphans. Differences in legal recognition of surrogacy contracts across countries can lead to complex and prolonged custody disputes.

2.3 Legal Parenthood

    Under Singaporean law, similar to the UK and Hong Kong, the woman who gives birth is generally considered the legal and natural mother. While the Status of Children (Assisted Reproduction Technology) Act (SCARTA) addresses parenthood for children born through ART, it was not intended to address the broader question of surrogacy, leaving legal parenthood for surrogate-born children unsettled. In the landmark UKM case, a genetic link was suggested as a factor in assessing parenthood, contrasting with California's "parenthood by intent" concept.

2.4 Enforceability of Agreements

     Unlike California, where surrogacy arrangements are enforceable, those in the UK and Hong Kong are generally not enforceable if parties change their minds. This unenforceability contributes to Singaporean commissioning parents seeking services abroad. Agreements regarding congenital deformities cannot be legally binding to abort the fetus due to human rights considerations.

2.5 Regulation of Payment

    While commercial surrogacy is prohibited in the UK and Hong Kong, specific reimbursements for expenses are permitted. In Singapore, the High Court has sanctioned payments made for overseas surrogacy for adoption if the intent is genuine, indicating a nuanced approach.

2.6 Access and Eligibility

     Current regulations in Singapore explicitly limit access to fertility treatments to married couples. If surrogacy were permitted, similar restrictions to married couples, possibly requiring the use of their own gametes, could align with Singapore's emphasis on genetic affinity and procreation as an extension of marriage.

3. Social Challenges:

3.1 Demographic Pressures

    Singapore faces declining fertility rates and later marriages, prompting consideration of assisted reproductive treatments like surrogacy as a potential solution, although its impact on overall population growth is likely small.

3.2 Public and Religious Objections

    Surrogacy sparks considerable interest and controversy among the general public, with strong objections from various local religious groups.

 3.3 Impact of Transnational Cases

    High-profile cases, such as Cambodia's temporary ban on surrogacy arrangements or the "Baby Gammy" case in Thailand, highlight the social and legal risks faced by Singaporean couples engaging in overseas surrogacy, and can even sour diplomatic relations.

 3.4 Socio-economic Disparity

     There is an equality debate regarding the socio-economic divide between those who can afford to seek surrogacy services overseas and those who cannot.

 3.5 Cultural Values

     Singapore's conservative societal values, heavily influenced by Confucian ideas, prioritize communitarian interests over individual self-focused concerns. This also means it's "very unlikely" that single or gay/lesbian couples would be permitted to utilize gestational surrogates if legalized. Additionally, in a conservative Asian society, there are hardly any local couples willing to adopt a child with disabilities.

 3.6. Surrogate Well-being

     Concerns exist regarding the emotional trauma for surrogates who give up their newborn infants, leading to potential legal disputes. Proposals suggest restricting surrogates to parous married women with stable family relationships who are Singaporean citizens or permanent residents (with exceptions for close relatives) to mitigate these risks and avoid offending socio-cultural and religious sensitivities of foreign countries.