10/9/2017

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Parliament No: 12
Session No: 1
Volume No: 90
Sitting No: 21
Sitting Date: 12-08-2013
Section Name: Second Reading Bills
Title: Status of Children (Assisted Reproduction Technology) Bill
MPs Speaking: The Minister for Law (Mr K Shanmugam) Mr K Shanmugam Mr K Shanmugam, Mr Hri Kumar Nair (Bishan-
Toa Payoh), Assoc Prof Tan Kheng Boon Eugene, Mr R Dhinakaran (Nominated Member), Ms Tan Su Shan
(Nominated Member), Ms Ellen Lee (Sembawang), Mr Desmond Lee (Jurong), Mr Deputy Speaker

Status of Children (Assisted Reproduction

Technology) Bill
Order for Second Reading read.

5.03 pm

The Minister for Law (Mr K Shanmugam): Mr Deputy Speaker, Sir, I beg to move, That the Bill be now
read a Second time.

The Bill deals with the legal parenthood and status of children conceived through assisted reproduction
technology, or ART. This is now being introduced because of the increased use of ART treatment in
Singapore.

We have been studying possible legislation in this area. We consulted the public last November on a draft
Bill. That followed earlier consultation with family law experts and religious groups in 2011. We studied the
Law Reform Committees 1997 Report on the status of children conceived through ART. We also looked at,
and discussed the legal position and practices of other jurisdictions including the United Kingdom, Australia
and New Zealand.

Having undertaken this review of the legal and socio-cultural issues, both locally as well as abroad, we
settled on a new legislative regime which embraces the unique realities of families and children in Singapore.

The Bill really represents the culmination of these efforts. It attempts to do three things: (1) Clarify the legal
parenthood and status of children conceived through ART; (2) Clarify the legal parenthood and status of
children conceived where the wrong egg, sperm or embryo was used in the fertilisation procedure; and (3)
Modernise laws relating to legitimacy and evidence of paternity.

The Bill does not go into or seek to regulate the provision of ART services in Singapore. Neither does it seek
to deal with surrogacy issues. These will continue to be regulated by the Ministry of Health.

I will now take the House through the main provisions of the Bill. The premise of the Bill is that a child
conceived through ART should have at least one legal parent. The status of legal motherhood is governed by
clause 6. The gestational or birth mother will be treated in law as the mother of the child. Clauses 7 and 8
govern legal fatherhood.

The Bill provides for several broad scenarios. Clause 7 deals with the situation where the gestational mother
is married. The gestational mothers husband will be regarded as the legal father of the child where the
husband is: (1) the genetic father of the child; (2) not the genetic father, but had consented to the ART
procedure. Consent is presumed unless the contrary is proven; or (3) not the genetic father, did not consent to
the ART procedure, but accepted the child as a child of the marriage, knowing that the child is genetically not
his.

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Clause 8 deals with the situation where the gestational mother is in a relationship with a man, as if he were
her spouse. The Bill terms this man her de facto partner. In such cases, legal fatherhood is premised on a
court declaration of parenthood, not the operation of law. The de facto partner will not be treated as the
legal father of the child, unless an application is made to the Court, and the Court so declares under clause 8.

The circumstances under which such Court declarations may be made are similar to those governing the legal
fatherhood relating to husbands under clause 7. In terms of what the Court has to consider, the welfare and
best interests of the child is the Courts primary consideration when exercising its discretion.

Clause 10 sets out a list of factors which the Court may have regard to when considering what is in the
welfare and best interests of the child. These include the childs wishes and the bond developed between the
child and any of the party to the proceedings. If the gestational mother subsequently marries her de facto
partner after the ART treatment, the rules on legal fatherhood pertaining to husbands under clause 7 will also
apply.

As for the position of gamete donors, clause 5 disassociates parenthood from biological descent. Sperm or
egg donors are not to be automatically treated as parents of the child except as provided by the Bill.

Let me now turn to the legal parenthood and status of children conceived as a result of an ART mix-up. The
wrong egg, sperm or embryo used in the fertilisation procedure as a result of mistake, negligence,
recklessness or fraud could take place. The Bill sets out the default position to ensure certainty, in the
interests of the child. Absent an application to Court, legal parenthood would be determined as if the mix-up
had not taken place. But any interested party, for example, the other sets of parents in the mix-up, can apply
to Court for a declaration that he or she be declared as the parent of the child. This particular provision is
unique to Singapore. Through this, we seek to achieve two objectives: (1) ensure that the child will not be left
parentless if no one wants to take care of the child after discovery of the mix-up; and (2) give the Court
exibility to declare parenthood where a different result would be in the best interests of the child.

We also seek to make amendments to the Evidence Act and Legitimacy Act. These are relevant to all
children, whether conceived naturally or through ART. Let me turn rst to the Evidence Act. Amendments to
the Evidence Act will modernise our laws relating to evidence of paternity. Clause16 repeals and re-enacts
section 114 of the Evidence Act. This enables relevant scientic evidence, for example, DNA evidence, to be
produced before a Court to displace the presumption of paternity under that section.

If you turn to the Legitimacy Act, clause 17 amends section 3(1) of the Legitimacy Act. This was a
suggestion of the Singapore Academy of Law (SAL) Law Reform Committee. Previously, an illegitimate
child whose father is domiciled in Singapore at the date of marriage can be legitimised by the subsequent
marriage of his parents. Now, this rule is extended to children whose mothers are domiciled in Singapore at
the date of marriage. The effect is legitimation of the child where either the father or mother has a strong
connection to Singapore.

Mr Deputy Speaker, I beg to move.

Question proposed.

5.11 pm

Mr Hri Kumar Nair: Mr Deputy Speaker, I support this Bill. Science and technology has improved our lives
and enabled us to live in a manner our forefathers could not even conceive. And every time we think we have
reached our capacity, we are often reminded that that capacity may well be limitless.

So it is with Assisted Reproduction Technology (ART). It is a cold, clinical term. What it really represents is
HOPE hope for childless couples around the world and in Singapore to bear children, to hold their own
esh and blood in their arms, and to experience the joys of parenthood. It has been said that life affords no
greater responsibility, no greater privilege, than the raising of the next generation. As a father myself, I
cannot agree more. Becoming a parent is a life-changing and humbling experience.

It is therefore no wonder that many have turned to ART in the hope of becoming parents. And the
Government has supported the hopes of such couples. In 2008, the ART treatment co-funding scheme was
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introduced to subsidise the cost of ART. This scheme was further enhanced earlier this year. As of March
2012, a total of 3,841 couples had beneted from the subsidy. And I have no doubt that the numbers will
continue to rise. All this has resulted in more births in Singapore using ART from 720 in 2006 to 1,308 in
2010. It is the same story around the world, with reported increases in countries where such facilities are
readily accessible. In Japan, for example, there were 26,680 babies born through IVF in 2009, compared to
just 11,119 in 1999 so more than double in 10 years.

When this Bill was introduced, some raised concerns about the ethical issues it gives rise to and such
concerns are inevitable. This Bill deals with controversial issues, such as conferring parental rights to a man
even if he is not the sperm donor. It also gives a man parental rights where he is not married to the mother at
the time of the procedure. There will be concerns that we are sanctioning ART for single women and
compromising the family unit.

As difcult as these issues may be, it bears reminding that this Bill is intended to tackle real life problems.
ART exists and ART procedures are being carried out. And there are real situations and circumstances where
the law is unclear or unsettled on paternal rights and legitimacy of the child. One example is where the
husband or partner of the gestational mother has not given consent to the use of his sperm. Another example
is where the wrong egg or sperm is used in the fertilisation procedure, as has happened in Singapore.

As the use of ART becomes more prevalent, we will have to confront disputes similar to those which have
arisen elsewhere. Let me cite a few examples around the world.

In the United Arab Emirates (UAE), a lady became pregnant after her divorce using her ex-husbands
previously-stored sperm from a failed IVF treatment. The man applied to disown the child because the
woman did not obtain his consent for the procedure and he failed in court.

If this Bill becomes law, and a similar dispute arises in Singapore, the ex-husband would not be the legal
father of the child, given that he was neither married to the lady nor her de facto partner at the time of the
fertilisation procedure, and he was not her de facto partner after the procedure.

In Australia, a couple lived together for six months before breaking up in 2002. They remained friends and
began IVF treatment in 2008 after the man agreed to donate his sperm. The man attended the birth of the
child and visited him regularly, until the relationship between he and the mother broke down in 2011. A
Family Court judge awarded the man equal parental share responsibility of the two-year-old boy.

Should a similar dispute arise in Singapore after this Bill is passed, the man would not be the legal father of
the child given that he was neither married to the mother nor was he her "de facto partner at the time of the
fertilisation procedure and he was not her de facto partner after the fertilisation procedure either. Further,
the man may not even be able to make an application to determine parenthood under Section 10 since he does
not fall within the ambit of Section 10(2).

In the UK, in Leeds, there was an IVF mix-up with the result that a ladys eggs were fertilised with the sperm
of the wrong man. That man and his wife were undergoing treatment in the same clinic at the time. The lady
had twins as a result of the IVF procedure. The biological father applied for access to the children in 2002.
The Court decided that he was the legal father of the twins.

Should a similar dispute arise in Singapore after this Bill is passed, the default position under Section 9 of the
Bill is that the gestational mother and her husband will be the legal parents of the child. The biological parent
will, however, be able to make an application to the Court to contest this position by virtue of Section 9(3).
Section 9(4) states that this application must be made within two years of the mistake, negligence,
recklessness or fraud being discovered.

So, whatever the religious, ethical or other sensitivities which may arise, we should not shy away from
addressing the difcult problems that will arise. We should clarify the law so there will be a measure of
certainty. There must be clear rules that we can follow in times where emotion is likely to reign.

I therefore commend the Ministry for tackling these difcult issues. Like any good piece of legislation, the
Bill seeks to anticipate as many possible scenarios as possible, and tackle them in a clear, consistent manner.
Nonetheless, I wish to highlight three aspects of the Bill that may require further consideration.
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First, the extra-territorial application of the Bill may give rise to a conict of laws. The Bill does not only
apply where the child is born in Singapore. By virtue of Section 3(1)(b), it also applies to persons such as the
gestational mother of the child, husband, donor of the egg or sperm and other connected persons who are
domiciled in Singapore. Problems may arise where the Assisted Reproductive Treatment (ART) procedure is
carried out overseas and the child is born in another country. Singapore law and the law of the country where
the child was born may apply conicting laws on the issue of parenthood. How will such conicts be
resolved? Given the increased mobility of Singaporeans and the availability of ART overseas, this is a
problem that we may encounter. I hope that the Minister will clarify this point.

Second, subsection 7(3)(d) and 7(6)(e) of the Bill provide that the husband or de facto partner at the time of
the fertilisation procedure may be treated as the father of the child where he has through a course of conduct
accepted the child as a child of the marriage or of the relationship. This applies notwithstanding the fact that
he did not consent to the fertilisation procedure and did not provide the sperm. While I understand that these
provisions must be applied exibly, it is uncertain what conduct or actions will be sufcient to constitute
acceptance.

And there are important consequences: the interpretation of the phrase determines whether a man owes legal
duties to the child and if so, when he becomes subject to these duties. Furthermore, Section 11(c) sets out that
a child shall be treated as legitimate from the last date a list of events occurs, one of these events being the
date the child is accepted as a child of the marriage by the man who is to be treated as the childs father.

Section 11(c) is phrased differently from Section 7(3)(d) and 7(6)(e). Nonetheless, I assume that Section
11(c) really provides the same condition of acceptance of the child by the man through a course of conduct.
If so, the interpretation of this phrase affects the legitimacy of the child as well. Given that so much turns on
the interpretation of this phrase, I hope that the Minister will shed some light on what actions are intended to
demonstrate acceptance. I accept that the Minister cannot give an exhaustive list, but some guidance would
be useful to help interpret the law.

My last point is that Section 10(6) may be worded too narrowly. Section 10(6) allows an application to Court
to determine the parenthood of a child to be opposed by either the child or any person who is treated or is
seeking to be treated as the parent of the child. In contrast, Section 10(3) provides that an application to
determine the parenthood of a child may be made by any other person who has sufcient interest in the
parenthood of the child.

To put it simply, the scope for making an application is wider than that for contesting an application. As a
result, someone with an interest in the well-being of the child, but who is not seeking to be treated as the
parent of the child for example an older sibling or grandparent - will be unable to contest an application.
This appears to be an anomaly. In any event, we should allow the Courts to determine who should be allowed
to be heard, and not seek to restrict its jurisdiction. I thus urge the Minister to consider widening the scope of
Section 10(6) to allow persons with sufcient interest in the parenthood of the child to contest an
application.

To conclude, Mr Deputy Speaker, this Bill deals with real life problems that we cannot and should not ignore.
The issue of legal parenthood is far more than a question of legal status. It has a direct impact on lives and
families. This Bill is thus both practical and timely. I support the Bill.

5.21 pm

Assoc Prof Tan Kheng Boon Eugene: Mr Deputy Speaker, this Bill is timely with the growing popularity of
Assisted Reproduction Technology (ART) in Singapore. We now have more ART children in Singapore. I
understand that in 2006, 720 children were conceived through ART, a gure that doubled to 1,308 in 2010.
The number of ART cycles done has grown from 2,432 in 2006 to 4,672 in 2011. These gures reect the
growth in demand and supply of ART-related services. ART is a growth industry indeed but it also raises
questions over the genetic, gestational, and social aspects relating to procreation on children, parents, and
their families.

Through ART, the likelihood of separation between the gestational, social and genetic parenthood is greater.
The legal regime that governs who is the parent of a child in a non-ART birth is relatively uncontroversial in
our family law. The woman who gives birth to the child is the mother, and the man presumed to be the
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genetic father is the father. With ART involving the use of donated sperm, such children would be raised by a
man who is not their biological father. This separation of social and genetic fatherhood is inevitable in such a
situation.

Sir, as I see it, one objective of the Bill is to promote heterosexual nuclear families with the father as the basis
for dening and organising family life. Underlying the Bills regulation of fatherhood is primarily the view
that a father is the person with genetic ties to the child. But the Bill does not take a strict view on this, and the
various provisions in Clause 7 provides recognition of social fatherhood that what makes a parent is not just
biology alone but about the everyday activities relating to the care and custody of a child such as meal times,
cleaning, washing, education and the like. This course of conduct approach is a sensible one to take since it
privileges substance over form in determining legal fatherhood.

The Bill is relatively straightforward in spelling out how parents of an ART child is to be recognised in
selected situations. I welcome the drafting intent of ensuring that the ART child does not have a single parent,
even though the childs mother has a spouse. The proposed parenthood regime avoids situations in which an
ART child would have a set of parents who are not in the same marriage or be left effectively parentless.

In this regard, clause 8 is to be welcomed for granting the High Court the exibility to take into account
specic circumstances on a case by case basis. There is only so much that legislation can do in such a
situation, but case law can augment what it means by the best interest of the child.

Sir, I nd the Bill interesting for what it does not cover. I recognise that this is deliberate as the Bill does not
seek to regulate ART services and treatment in Singapore which comes under the purview of the Health
Ministry. Even then, this Bill in seeking to provide for the legal parentage and status for children conceived
through ART has a limited scope. For example, the Bill is clear that it only applies to heterosexual couples,
whether married or not to each other at the time of the fertilisation procedure. The de facto partner in the
Bill refers to the male partner and as such excludes same-sex couples.

I have several questions which I hope the Minister can enlighten us on. One, does the Act apply in cases
where the fertilisation procedure is carried out overseas, but the child born in Singapore? Two, clause 4
relates to the giving and withdrawing of consent to a fertilisation procedure. However, it is silent as to
whether the consent can be withdrawn after the fact, that is, after the fertilisation procedure has been carried
out and before the child is born. Three, the Bill does not specically address the issue of surrogacy. Again,
would it be correct to assume that a child born to a surrogate mother from a fertilisation procedure overseas
does not come under the purview of the Act? Going by a plain reading of clause 6, however, it would appear
that gestational surrogate mother would be treated as the legal mother of the child.

Sir, in situations where the Act does not apply -- such as in surrogacy -- there arises the real possibility of
uncertainty and conict over who the childs parent or parents are. The changing trends in our society point to
more couples wanting to achieve their desired families even if they do not conform to the traditional family
form of husband, wife and biological child.

I appreciate that the above matters are not under the ambit of this Bill. They are very complex and
controversial issues, and defy the jurisdictional boundaries between the Law and Health Ministries. But they
also highlight that what the Bill and other legislation on our statute books do not deal with are also life issues
that present real concerns. They are very much the proverbial elephants in the room. As a society, I hope
we can engage them proactively, rather than leaving such children in a state of legal limbo.

The House would also be mindful that this Bill can be criticised for not being pro-life by not adequately
promoting respect for the embryos, sperms and eggs, since ART involves creating, transferring, freezing and
the discarding of embryos. These ART processes connect with the right to life issues and for which I
recognise that the pro-life and the pro-choice advocates in Singapore contest passionately over.

We cannot hide from the reality that not all Singaporeans share similar religious moral and ethical concerns.
For some Singaporeans, as Mr Hri Kumar had pointed out, ART is critical to their having their own children.
Objectors to reproductive autonomy rights will, however, appreciate that it is important, given the boom in
the fertility business, that we properly regulate the regime governing the legal parentage of ART children.
Not to do so will render it injustice to these children.

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Sir, this Bill is primarily procedural in that it prescribes how fatherhood will be accorded in different
situations. Yet, this Bill does have a signalling effect. It is loaded in that there is an inherent moral dilemma
in providing the legal architecture that the Bill seeks to provide. For those who object to ART, creating this
regime can be perceived as signalling a wider approval of ART and encouraging the expansion of ART
because it reduces the planning costs for the stakeholders. For example, where the mother and male partner
are not married to each other and the child was not brought about with the sperm of the partner, they can still
avail themselves to the Act.

On the other hand, by not providing the legal architecture, we would also be prolonging the legal uncertainty
and generate potentially contentious and heart-rending litigation over who has parental rights over an ART
child.

The Bill conveys the idea of the need for a father and families, and implicitly creates the notion of the
inferiority of other family types. This is a very complex matter, and I worry that this Bill raises more
questions than answers. Not so much relating to the legal parentage of the child but to other matters.

This Bill makes an important rst step but much more needs to be done to develop a working consensus that
takes cognisance of individual rights, and the delicate balance between the individual and society and public
policy.

Sir, ART facilitates the formation of alternative families, for example, without sexual intimacy, where the
mother and male partner are not married to each other, or with two parents of the same gender. We have to
deal with the greater uncertainty and the ambiguity of kinship relations including those of motherhood and
fatherhood. Legal ambiguity in such scenarios would not be in the best interest of the child. In this regard, I
reiterate my call earlier this year that we seek to promote and create greater awareness of adoption as an
alternative to ART for married couples. This is not to suggest that adoption is the panacea. Sir,
notwithstanding the concerns that I have, I support the Bill.

5.30 pm

Mr R Dhinakaran : Thank you, Mr Deputy Speaker, for allowing me to speak on this Bill. This Bill will
play an important role in strengthening the protective layers around Assisted Reproduction Technology and
reassure parents going into it that there is enough legal cover to assist them should anything go wrong.

I feel that as we try to encourage the birth rate in Singapore to improve, we should also focus more resources
into making assisted reproduction and adoption as attractive and viable options. This Bill certainly helps us
work closer towards that goal as well.

I only have two minor points to suggest that may help in the overall effectiveness of this Act.

Firstly, in the section of interpretations, on the denition of de facto partner, I would like to suggest that the
condition that the gestational mother be in a live-in relationship with her partner at the point of their
application of Assisted Reproduction Technology (ART) be inserted into this section. This provides some
certainty that the eventual parents of the child have taken a mature and responsible decision of having the
child and also to provide some certainty that both parents will have joint domestic responsibility of the child
eventually.

My other point refers to Section 10 of the Bill, which constitutes the application to determine parenthood. In
subsection 7(b) of this section, it is specied the factors that the Court may use to consider the welfare of the
child to determine the parenthood of him or her.

Earlier in the Bill, it was also provided that the Court may choose to declare that the de facto partner of the
childs mother as the father even though he did not consent to the gestational mother undergoing the
fertilisation procedure initially, but did nevertheless, act as if he had accepted the child. We can all agree that
a man would do to act in this manner on goodwill and humanity. I feel that this should then be reected as a
consideration as well under section 10 by reecting goodwill by non-biological parent as a factor that the
court may use to consider the welfare of the child to determine the childs parent. This is especially when the
childs biological relationship with any of the parties has been listed and could prejudice a decision in favour

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of the biological parent. It is not always true that a biological parent may ensure that the childs welfare is
maximised and therefore the goodwill of the non-biological parent should also be considered.

All in all, Sir, I support the Bill for being comprehensive in its consideration of a sensitive and important
topic. Thank you, Mr Deputy Speaker.

5.34 pm

Ms Tan Su Shan (Nominated Member): Mr Deputy Speaker, since the rst IVF baby was born, there has
been tremendous development in the eld of Assisted Reproductive Technology (ART). Societies around the
world have embraced this new technology. Technological advancement must come hand in hand with social
and legal advancement. The word parent may no longer mean the same thing as it did before the advent of
reproductive technology. Hence this Bill is an urgent and long awaited response to acknowledge, clarify and
protect the status of children born out of IVF technology. It is ironic that it took an IVF mix-up for this law to
be amended, but as they say, better late than never.

As I am neither a doctor nor a lawyer, please excuse me if my speech has more of a laymans approach.
Allow me now to distill my speech into three broad points.

The rst point is to expound on why we need this Bill and to recognise that this is a response to the changing
socio-economic, medical and family trends in Singapore.

The second point is to state that for this Bill to be meaningful and relevant, it should not be solely reactive. It
should be forward looking. This is because it will become the eventual framework supporting new areas in
family law surrounding the family unit derived from medically assisted reproduction. Hence it should cover
some of the future contingencies that many Singaporeans are already considering or already carrying out.

The third point is to consider offering egg-life extension options to more women as an extension of IVF.
Whilst there has been tremendous advancement in the eld of IVF technology, the one constant that has not
changed is the ticking of a womans biological clock. This puts time limits on our fertility window.

On point one, I am told by lawyers that this Bill has taken 16 years to be presented in Parliament in its current
form. The idea of a statute to clarify the status of children born though articial conception was rst mooted
in 1997 but it took the recent IVF case to get us to where we are today. Hence there is urgency in updating
our laws.

The Bill recognises that there is the option and availability of such options here and this is because there is a
growing trend of families choosing such options because women are marrying later, having children later and
as a result having less children than they would liked to have. In a recent survey done by NPTD (The
Marriage and Parenthood Study 2012), 84% of married respondents said they wanted to have two or more
children, but only 51% have two or more children. The statistics I mentioned that Singaporean women are
marrying later and as they marry later, they have children later. And that the number of ever-married females
remaining childless is growing. These childless numbers are rising and they may not necessarily be voluntary.
Hence it comes as no surprise that more couples and more women would turn to such technology.

A recent report from Clearstate -- Clearstate is part of the Economist Intelligence Unit -- states that 71% of
respondents to a recent survey they did here indicated they would consider IVF if the need arose. According
to the Ministry of Health, the number of women opting for Assisted Reproduction Technology (ART)
treatments had increased from 1933 to 3271 between 2006 and 2009. The number should be even higher now.
This number is quite a large percentage of our annual birth rate.

On point two, I had asked that for this Bill to be relevant, it should not just be responsive but also forward
looking. Which means it needs to more comprehensive and to anticipate other contingencies resulting from
the growing number of new techniques that couples in Singapore are adopting.

Here, I will quote from some research done by an independent, non-prot research group called BELRIS
(Bioethics Legal Group for Reproductive Issues in Singapore):

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BELRIS made a point that in relation to the welfare and best interest of a child, the gestational test is
arguably the most straight-forward approach in dening who the mother is, as is the very broad denition
of father in the Bill. They believe that a gestational-based denition of mother, as well as the broad denition
of father, may solve some more straight-forward problems. However, in the long run this denition may be
short-sighted in the context of the rapidly evolving eld of assisted reproduction.

And perhaps, an intention-based concept of parenthood would not only be more forward thinking, but is also
necessary. An intention- based concept of parenthood places emphasis on the fact that at the point where
agreement is reached, all parties involved intend that any child born of the arrangement is to be regarded as
the child of the commissioning couple upon birth. Why? Because as I have said, more childless couples or
unmarried parents are choosing these options to procreate.

Allow me now to share some examples of this trend and discuss how this Bill may not be adequate to address
such contingencies.

Contingency number one: women who freeze their eggs overseas. The Minister mentioned rightly that some
of these issues are to be addressed by MOH. I have to bring them up here as this Act does impact the
denition of the father and the mother. For this contingency, doctors tell me that more Singaporean women
are availing themselves of the services of overseas IVF centres. Some single women who have the means,
may elect to freeze their eggs overseas as they are not allowed to do so in Singapore under our Licensing
Terms and Conditions for Private Clinics.

Whatever the reasons for their choice, the reality is elective egg-freezing overseas is a medical option open to
Singaporean women. Often, these women choose this rather difcult option as they wish to have a child but
have not found the right partner. If she does marry later, she and her husband then have the option to conceive
a healthy baby using the frozen eggs. If she does not marry, she may still choose to have a child perhaps with
the help of an anonymous sperm donor. The Bill, however, presumes either a de factor partner or a husband
but not an anonymous sperm donor.

Contingency number two: how about in the case where the embryos are derived from a married couple where
the husband unfortunately passes away during the process? Can such embryos which are in storage in
Singapore be used?

The third contingency is the use of a surrogate abroad. The growing trend of Singaporean couples resorting to
surrogacy abroad. It would be ideal for the wife to be the gestational carrier of a child she wishes to have, but
this may not always be the case. If a woman is not medically able to carry a pregnancy, the couple may
choose to have a gestational surrogate overseas as surrogacy is not allowed here. The Bill in its current form
leaves unclear the status of this child in relation to the Singaporean couple using a gestational carrier abroad.
The outcome could be harsh for the couple if the child is, in fact, genetically the child of the Singaporean
couple. So far, there has been no reported challenges regarding the status of such children, but if there were to
be one, these children could be at risk of being the subject of a protracted legal battle.

On point three. My nal point is about elective egg-freezing, which is not allowed in Singapore. In fact, we
use the term social egg freezing here instead, which may wrongly imply that this is not a medical term. In
other jurisdictions, age-related fertility decline is deemed to be a medical condition and hence elective egg-
freezing is seen as preventive medicine. It allows women to extend and protect their fertility.

This is not allowed in Singapore unless the woman is already married, under 45 years old or undergoing
serious treatment like chemotherapy. In contrast, this procedure is available in neighbouring countries like
Thailand and Malaysia. These differences in governance could lead to regional arbitrage as our citizens will
be forced to go to more permissive environments to receive these medical treatments, leading to what is now
termed reproductive tourism. Our current laws are not yet adequately built to address these trends.

In closing, I just want to say, I believe in the importance of a traditional family unit. I am well aware that the
Government has to do a delicate balancing act in recognising and valuing the views of social conservatives
alongside the reality of what is happening in society due to the advancement of medical science. This balance
is not easy. Yet, often, progress means the reinvention of concepts and changing trends may mean a new
understanding of what constitutes the meaning of what is a traditional family unit.

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This Bill may be a late start, Sir, but it is an important start in how we recognise our changing demographic
trends and how we address the prickly parenthood issues that may arise from the increasing use of ART.
Whatever this Bill tries to achieve, let us not forget the most important thing here is that a child is being born
and this life is sacrosanct. Whatever the Bill tries to achieve, we should do our best to safeguard the well-
being of this child. Allowing this child to grow up in a safe and healthy environment is key. Let this be the
bedrock and foundation behind every decision we need to take going forward.

5.44 pm

Ms Ellen Lee (Sembawang): (In Mandarin): [For Mandarin speech, please refer to Vernacular Speeches.]
Mr Deputy Speaker, with regard to this Bill, I support it and I have the following comments.

According to MOH gures, the number of children born through Assisted Reproduction Technology (ART)
rose signicantly from 2006 to 2010. Our laws do not have specic stipulations on the legitimacy of
parenthood. For example, if a woman gives birth to a child conceived from a sperm donated by a man other
than her lawful husband, or if there is a mistake in the insemination process, then it will become difcult to
determine who the legitimate father of the child is. Undoubtedly, this is a legal loophole that must be
plugged. That is why this Bill is of utmost signicance to children born through assisted reproduction
technology.

From the perspective of the unborn child, I agree that the laws must specify who the parents of the child are
so that the unborn child can also enjoy the same legal rights of receiving care and protection from his parents.

This bill is a reminder that even as we use technology to solve problems of mankind, we must also spare a
thought for the repercussions that technology may bring as well as the implications for our future generations.
Our country is built on the premise of fairness and equality and therefore we must use our laws to ensure that
children born through ART will also have the equal right of receiving care and love from his parents, just as
we do for all citizens.

Clearly, this bills objective is not to allow any young life, in the absence of his or her voice, to become an
option for adults to decide whether they want to full their legal responsibilities or not. Once we pass this
bill, the legitimate husband of the wife, as long as he has consented to his wife undergoing ART, even if she
were to accept the sperm from another male donor; or if he accepts that the child is his, then he will be
specied as the legitimate father of the child. And that means he will have to discharge the legal
responsibilities as a father.

Singapore is a relatively conservative Asian society. Such a peculiar father-child relationship is something
that is quite alien to us. How do the children, when they grow up, understand that there are differences vis--
vis other children and how will his parents explain their actions for using ART? And if the child wants to
know who his father is, will his parents be mentally prepared to answer that question?

The Government, in January this year, announced higher subsidies for those who are unable to conceive so
that they can make use of ART to full their dream of having children. Personally, I suggest that the
Government give further subsidies for these couples to undergo training in child psychology so that they will
understand the kind of issues that their children will face in the future. They should also understand the kind
of academic pressure that their children will face, so that even if they want the best for their children, they
should not spend so much time on getting various tuition teachers, piano teachers or swimming coaches for
the children.

According to media reports, there are some Singaporeans who have gone overseas for ART and they stated
that they wanted a son. That is because Singapore does not allow couples to do gender selection. This
demonstrates that the conservative mindsets in Singapore are still deep seated. The older the parents are, the
higher their expectations of the child. I think many parents are emphasising too much on academic results and
this has caused a lot of stress for the children. Meanwhile, they have neglected the holistic character
development of their children. Hence we need to put more emphasis on how to raise our children correctly.

My last point is regarding feedback that I have received from my residents. In Woodlands, there is a resident
who noted that in January 2013 we announced higher subsidies for procreation and now we are discussing the
ART bill. People get the impression that the Government is focusing too much on procreation measures. He
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thinks that there is a need to discuss in the community the real reason behind low birth rate the reason is
that young couples in the more fertile age are too focused on their career success and they do not want to
consider marriage, family, children and things that are closely associated with their own happiness. That is
why many people are marrying late in life. Late marriages have caused some couples to be unable to
conceive; they subsequently pin their hopes on ART. This resident thinks that higher medical subsidies will
encourage more young people to marry late.

We also have to take note of the possible social problems that ART may bring in the future, and the issues
that we discuss in this House may also become more complicated. I agree with that view and I hope that the
different Ministries will conduct seminars in the community and focus on the issues that ART may lead to.
We should encourage young people to focus on families and children and not just on their career success.

Sir, I repeat my support for this Bill. Thank you.

5.50 pm

Mr Desmond Lee: Mr Deputy Speaker, thank you for letting me speak on the Bill. I just have ve brief
points for the Minister to consider.

First is on clause 9 of the Bill which deals with IVF mix-up situations. I compared it against the four other
alternative options put forward in the Ministry of Laws 2012 Public Consultation Paper, and in my view, the
current option put forward in this Bill strikes as good a balance as possible between securing certainty on the
one hand, both for the parents and the child, and on the other hand, retaining exibility in the form of the
courts discretion to achieve an outcome in the best interests of the child.

It also sits more comfortably with the general nature of our social fabric: we are still largely an Asian,
traditional society. Alternative option 4, for instance, which could result in a child having as many as four
legal parents because of an IVF mix-up would, in my view, t rather poorly in our context.

Sir, my second point is about the two-year limitation period for making applications to court to determine or
challenge the parenthood of the child, set out in clauses 9(4) and 15(3). This two-year period is determined
from the time that the IVF mix-up is discovered. Sir, this could happen anytime and when the child is at any
age. I would imagine this could suddenly create a lot of uncertainty and anguish for the people affected,
including many adults, who were conceived out of IVF, since IVF has been around for over two decades.

Would it not be better to let this two-year period run, but with a cut-off for all interested persons when the
child at the centre of the mix-up reaches a certain age, say, 21 years of age? And after that age, only the child
alone can make such an application. This will provide greater certainty on issues such as parental obligations
and maintenance, inheritance and succession, and so on. I hope the Ministry can consider this.

The third point is directly about IVF mix-ups. It happened in Singapore in 2010, in the Netherlands in 1993,
in the UK in 2002, and so on. Each time such cases get publicly reported, they generate tremendous public
and media interest, but these are really incidents of immense personal anguish and embarrassment for the
families concerned. So, while it is important to ensure that we have the legal framework, as we do now, to
handle such cases if they ever do re-occur, it is far more important to ensure that there are stringent
regulations and rigorous safeguards upstream in our ART centres to try to prevent such occurrences in the
rst instance.

The fourth point is a point of clarication on the interpretation of clause 3(1)(b)(v) of the Bill, which says that
the Bill will apply if the person who consented to the fertilisation procedure is domiciled in Singapore on
the date of the birth of the child. For the purposes of clauses 7 and 8, both the husband as well as the de
facto partner are already covered under (b)(ii) and (iii), so I am not quite clear which group (b)(v) would
cover. And in the interest of ensuring clarity of the law, could I invite the Minister to shed light on this,
please?

My fth and nal point is about clause 16, which makes a related amendment to Section 114 of the Evidence
Act, and clause 17, which makes a related amendment to Section 3 of the Legitimacy Act.

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On the amendment to the Evidence Act, I think no one would disagree that the signicant developments in
technology, the irrebuttable presumption in that Evidence Act section was rendered meaningless many years
ago, and it is correct to x this piece of legislation now.

On the amendment to the Legitimacy Act, this is, in my view, a progressive amendment. As it currently
stands, section 3 of that Act allows an illegitimate child to be legitimised by the marriage of his parents only
if his father is domiciled in Singapore at the time of marriage. This amendment now permits legitimisation by
marriage if the mother is domiciled in Singapore at the time of marriage. While we recognise that elsewhere,
traditional common law choice of law rules may still reect a historical bias for the fathers domicile, this
amendment now permits legitimisation by marriage if the mother is domiciled in Singapore at the time of
marriage, which is ultimately better for the child.

Sir, in closing, I would like to commend and continue to encourage the important task of law reform work,
where ofcers of the Ministry of Laws Legal Policy Division work closely with the Legislation Division
ofcers in the Attorney-Generals Chambers and the Law Reform Committee of the Law Society, as well as
with academics and practitioners, to continually comb through our corpus of laws to identify, to refresh and
x outdated or outmoded legislations. This is an important task. Their continued hard work will ensure that
Singapores laws remain relevant and up-to-date. Sir, with that, I support the Bill.

5.56 pm

Mr K Shanmugam: Thank you, Sir. I thank the Members for their suggestions and comments.

First, let me turn to the genesis of the Bill and IVF mix-ups. Ms Tan Su Shan made a few comments on the
Bill being nally here and the reasons for that. The main reason for the Bill being introduced is the growing
number of children conceived as a result of ART. Possible reform in this area was studied since early 2010,
before the Thomson Medical Centres IVF mix-up. In the course of the last two and a half years or so, we had
also considered the Law Reform Committees 1997 Report extensively .

As regard to the ART processes, we accept Mr Desmond Lees comment that we need stringent regulations
and rigorous safeguards. It is important to uphold the integrity of the ART process.

The existing safeguards are in the licensing terms and conditions (LTCs) which the Ministry of Health issues
under the Private Hospitals and Medical Clinics Act. The LTCs set out the requirements on laboratory
procedures to ensure identication of patients and specimens at every critical step of the ART procedure. All
ART centres must comply with these standards. MOH regularly conducts audits to ensure compliance.

Turning now to parenthood, Ms Tan Su Shan advocated intention-based parenthood. While she did not
specically say as such, I think in essence, this would lead to an argument for surrogacy, because the natural
conclusion of her suggestion is that an ART child would be regarded as the child of the commissioning
couple if all the parties involved so intended.

As I have said in my Second Reading speech, this Bill is a technical one dealing with the parenthood of
children born through the ART process. It is not intended through this Bill to address the larger question of
surrogacy. That is an issue within the purview of the Ministry of Health. It has also been raised with them
before.

As Assoc Prof Eugene Tan pointed out, the real point of this Bill is to make sure that children who are
conceived through the ART process are not left in a legal limbo. The gestational mother would be treated in
law as the legal mother. The husband or de facto partner may be treated as the father if the conditions that are
set out in the Bill are satised. It is also open to the couple to adopt the children.

Ms Tan Su Shan gave examples of possible areas where the Bill may have gaps. She spoke about egg-
freezing by women who may wish to have the option to conceive later. She also asked if stored embryos from
married couples where the husband unfortunately passes away may be used in Singapore. This Bill does not
seek to deal with the rights over stored embryos. It is not within this framework. Medical related matters
including procedures and practices provided by AR centres are also under the Ministry of Healths purview.

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The Ministry of Health has certain licensing terms and conditions. AR centres are required to obtain written
instructions from married couples on the use of unused embryos in the event of death of a spouse. There is no
legislation on the legal status of embryos.

As regards to the use of eggs which were frozen overseas for later use, on the assumption that the subsequent
embryo is subsequently implanted into the woman herself, the woman is the legal mother, as she is the
gestational mother. If she had a husband or de factor partner at the time of the fertilisation procedure, he
can be the legal father if the conditions stated in the Bill are satised. If the husband or de facto partner
became so only after the time of fertilisation, he will not be entitled to be the legal father. Such a gentleman
will be in the same position as a man who marries a woman with naturally conceived children from previous
relationships. So he will be the step-father.

We need to be clear as to what the Bill seeks to cover. The Bill does not seek to address the legality of egg-
freezing. Members including Ms Tan may have broader issues but those have to be conveyed to the Ministry
of Health.

As regards Ms Tans comment on reproductive tourism, again, insofar as it touches on surrogacy and its
legality, you have my answers. We recognise that the Bill has got to be forward-looking. The Bill is
technology neutral. It focuses on key principles rather than technical denitions and recognises that as social
consensus changes, the laws have to change and adapt, insofar as it is within my Ministrys purview.

Assoc Prof Eugene Tan questioned whether consent can be withdrawn after the fertilisation procedure and
before the child was born. Consent cannot be withdrawn. If you look at clauses 7 and 8 of the Bill, consent
must be given at the time the fertilisation procedure was carried out.

Mr Hri Kumar Nair asked what conduct or actions constitute acceptance. The lawyers answer is that
acceptance has to be inferred through a course of conduct. Now, Mr Nair knows that course of conduct
has come up before the Courts on several occasions. It is neither useful nor right for me to try and dene what
amounts to a course of conduct, for instance, whether it is a single act or multiple acts or a series of acts.
We ought to leave this determination to the Court, because the primary factor is the welfare and best interests
of the child. However, acceptance by the father or intended father must be with the knowledge that the child
is not genetically his.

I prefer not to limit the Courts discretion by laying down fairly prescriptive rules as to what course of
conduct will or will not amount to acceptance. An example of acceptance will include the man taking care of
the child, paying for maintenance, upbringing and so on.

Turning to applications for Court declarations of parenthood, Mr Hri Kumar Nairs point was that the scope
for making an application for a Court declaration of parenthood under clause 10(3) of the Bill is wider than
the scope for contesting the application under clause 10(6) of the Bill. Someone with an interest in the well-
being of the child, but who is not seeking to be treated as a parent, for example, an older sibling or a
grandparent, will not be able to contest an application because that is limited to those who can be parents.

Clause 10(3) is intended to cover situations where potential candidates for parents cannot or do not wish to
apply for a Court declaration of parenthood. In such cases, third parties are given the standing to apply to
Court to determine the parenthood of the child as it is in the best interests of the child that parenthood is
determined. For example, if all the potential candidates for parents have passed away, and there is an estate
and you need to determine whether the child is a beneciary, you might allow someone else like a trustee to
apply to Court in order to determine the parenthood so that you know what the child is or is not entitled to.

A different situation applies when there is already an application for declaration of parenthood under clause
10(6). The views of other persons who have an interest in the well-being of the child can still be heard, but
not as parties or contestants to the application.

Clause 10(7) provides that the welfare and best interests of the child is the rst and paramount consideration
of the Court in its determination of parenthood. And under clause 10(7), the Court can consider any other
relevant matter. This can include the views of other persons.

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Mr Dhinakaran called for good-will by non-biological parent to be included as a factor. The list of factors
under clause 10 is not exhaustive. Good-will by non-biological parent can be considered under the existing
clause 10 factors. Now, the factors that can be considered are, namely, the bond which has developed between
the child and non-biological parent; the ability of the non-biological parent to provide for the childs needs;
and as an additional factor the Court deems relevant. So the list of factors is broad enough.

Mr Desmond Lee suggested that in ART mix-ups, we should introduce a cut-off time for all interested
persons seeking to make an application for a Court declaration of parenthood when the child at the centre of
the mix-up reaches a certain age, for example, 21 years. And after that age, only the child may make an
application. Again, the approach we have taken is that the welfare and the best interests of the child is the
paramount consideration. While that is so, the Bill is also about the rights and obligations of potential parents.
It is in the interest of greater certainty vis--vis parental obligations and maintenance, inheritance and
succession rights to allow applications and contests of parenthood after the child becomes an adult. Also, the
age of the child and the fact that the child may be an adult are relevant factors that the Court can consider
when hearing an applicationin an ART mix-up situation. That is the approach we have taken.

Mr Dhinakaran suggested rening the denition of de facto partner to include a condition of parties being
in a live-in relationship at the time of the fertilisation procedure. The Bill requires the de facto partner to
be living in a relationship [with the gestational mother] as if he were her spouse. So really, it is a quasi-
spousal relationship that entails living together. Again, we prefer not to be prescriptive about this. We take a
broader approach in terms of timing. A sperm donor who becomes a de facto partner subsequent to the
fertilisation procedure could also apply to be declared father of the child.

Assoc Prof Eugene Tan commented that the Bill has limited scope. I said so in my Second Reading speech.
The Bill focuses on a narrow and technical area. Its approach is to give more certainty on how the parenthood
is to be determined.

On the issue of extraterritoriality, both Assoc Prof Eugene Tan and Mr Hri Kumar Nair are concerned about
the applicability of the Bill where foreign elements were involved in the ART process. The Bill applies
where the fertilisation procedure is carried out overseas but the child is born in Singapore. Under clause 3, the
fertilisation procedure need not be carried out in Singapore. I have outlined the situations where the Bill will
apply in my earlier speech. Even if those conditions are satised, under common law, a Singapore Court may
refuse to hear a case if it is more appropriate for the case to be heard elsewhere. Every court has to determine
which is the most appropriate forum and applicable law under common law principles. It is no different here.

Choice of law issues is a feature of legislation in other jurisdictions which deal with the status of ART
children. For example, Queenslands Status of Children Act takes an even broader approach. This Act applies
to all persons whether or not born in Queensland; and whether or not a persons father or mother has ever
been domiciled in Queensland. In contrast, the Bill here applies where there is a substantial nexus between
the parties and Singapore. That ensures that the right persons are protected whilst precluding application of
the Bill to persons with no connection to Singapore.

Mr Desmond Lees queried what group of persons clause 3(1)(b)(v) of the Bill is intended to encompass,
since clause 3(1)(b)(ii) and (iii) provide for husbands and de facto partners respectively. Clause 3(1)(b)(v)
is meant to address situations where there is an ART mix-up involving a person domiciled in Singapore, who
does not fall within the other limbs under clause 3(1)(b). For example, there is a Singapore-domiciled
husband and his foreign wife (Mr and Mrs A) and the fertilisation procedure is in Singapore. An ART mix-up
occurs and Mrs As eggs are wrongly implanted in a foreign woman, Mrs B, who is undergoing fertility
treatment with her foreign husband, Mr B, in Singapore. Under such a situation, clause 3(1)(b)(i) to (iii) will
not apply because the gestational mother and her husband, ie Mr and Mrs B, are not domiciled in Singapore.
Clause 3(1)(b)(iv) will also not apply because Mrs A is not domiciled in Singapore. However, clause 3(1)(b)
(v) will extend the application of the Bill to Mr and Mrs A. So we try to think of different situations.

Ms Ellen Lees suggestions on increasing public education for ART and child-rearing in general, we welcome
that. We will inform the Ministry of Health her suggestions.

I thank Mr Desmond Lee for his comments on the amendments which the Bill makes to the Evidence Act and
Legitimacy Act.

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Sir, I would conclude by thanking the hon. Members who have spoken in support of the Bill. Once again,
thank you.

Mr Deputy Speaker: Are there any clarications for the Minister for Law?

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Mr K Shanmugam].

Bill considered in Committee; reported without amendment; read a Third time and passed.

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