Public Consultation on the Proposed Status of Children (Assisted Reproduction Technology) Bill

20 NOV 2012

Consultation Period:
20 Nov 2012 to 20 Dec 2012

The Ministry of Law (MinLaw) proposes to introduce a new Status of Children (Assisted Reproduction Technology) Bill, which will deal with the legal parentage and status of children conceived through assisted reproduction technology (ART).¹
It is timely to enact the Act given the increasing number of babies conceived through ART in Singapore. The popularity of ART has risen with medical advances to treat infertility, as well as a more affluent and aging population. There is also a need for legal clarity in respect of issues concerning the legal status of children conceived and born where the wrong egg, sperm or embryo was used in the fertilisation procedure as a result of a mistake or negligence.

The proposed Bill will:
1. Clarify the legal parentage and status of children conceived through ART;
2. Clarify the legal parentage and status of children conceived through ART where the wrong egg, sperm or embryo was used in the fertilisation procedure as a result of a mistake or negligence (ART mix-up); and
3. Make related amendments to (i) section 114 of the Evidence Act to allow relevant evidence to be adduced to displace the presumption of paternity in relation to a child born during the continuance of a valid marriage; and (ii) section 3 of the Legitimacy Act to allow persons whose mothers are domiciled in Singapore to be legitimatised under the Legitimacy Act as well.

The Bill is drafted on the premise that a child conceived through ART should only have a single set of parents, that is, a legal mother and legal father.

MinLaw proposes to confer legal motherhood on the woman who carries or has carried a child as a result of a fertilisation procedure (that is, the gestational or birth mother). This is consistent with existing practice where the birth mother is generally treated as the child’s mother.

Legal fatherhood, on the other hand, depends on a variety of factors. Generally, the Bill proposes that:
1. In cases where the genetic father is the husband of the gestational mother, the husband will be the legal father;
2. In cases where the child was not conceived with the sperm of the gestational mother’s husband, the husband will be treated as the father of the child if he had consented to the ART treatment or when he accepts the child as a child of the marriage; and
3. In cases where the mother is unmarried but has a de facto partner ² whose sperm was used to conceive the child or consented to the child being a child of the relationship, the gestational mother, the child or the de facto partner can apply to Court for a declaration that the de facto partner be declared as the father of the child. Such a declaration would not confer legitimacy on the child.

The Bill proposes a legal mechanism to determine the legal parentage and status of a child conceived as a result of an ART mix-up. In such a situation, there can be two couples who may lay claim to be the legal parents of the child, that is, the couple who underwent the ART treatment, and the couple whose sperm or egg or embryo was inadvertently used in the ART treatment. It is also possible that both couples may disclaim the child, and the child becomes effectively parentless.

The Bill provides for a default position whereby the gestational mother and her husband who consented to the ART treatment will be the legal parents of the child. However, any interested party may apply to Court, within two years from the date of discovery of the mistake, for a declaration that he or she be declared as the father or mother of the child. The intent is to ensure that the child is not left parentless in any situation.

Amendments to section 114 of the Evidence Act and section 3 of the Legitimacy Act

Presently, section 114 of the Evidence Act provides that a man shall be treated as the father of a child born during the continuance of a valid marriage unless it can be shown that he had “no access” to the woman when the child was conceived.

Given scientific advancements through which reliable scientific evidence (for example, DNA tests) can now be produced to prove the paternity of the child, the Bill proposes to amend section 114 of the Evidence Act to enable any relevant evidence to be produced to displace the presumption of paternity.

Under the Legitimacy Act, only persons whose fathers are domiciled in Singapore can be legitimised. The Bill proposes to address the anomaly by amending section 3(1) to enable persons whose mothers are domiciled in Singapore to be legitimised under the Act as well.

The Bill will apply to children born on or after the date of the commencement of the Bill. For children conceived through ART before the commencement date of the proposed Bill, MinLaw proposes to provide as a transitional measure that the child or any person claiming to be his father or mother may apply to the court for a declaration of parentage within two years from the commencement date of the Bill, or in an ART mix-up, two years from the date of the discovery of the mistake.

MinLaw invites interested parties to provide their feedback on the proposed Bill. The consultation period is from 20 November 2012 to 20 December 2012. The public can view the public consultation paper and draft Bill in the Annexes below and at www.reach.gov.sg/YourSay/EconsultationPaper.aspx. The feedback may be sent in electronic or hard copy form to:

Legal Policy Division, Ministry of Law
100 High Street
#08-02, The Treasury
Singapore 179434
Fax: 6332 8842
E-mail: <MLAW_Consultation@mlaw.gov.sg>

^[1] The Bill does not regulate ART services and treatment in Singapore, which are and will continue to be regulated by the Ministry of Health.

^[2] Defined in the Bill as a man with whom the gestational mother was living in a relationship as if he was her spouse.

Last updated on 26 Sep 2013