Out of the three bedrooms in Noel’s home, two have been dedicated to the four-year-old — one for sleeping, the other for toys. There are a lot of toys, mostly gifts from family and friends. Noel is very much the apple of his parents’ eyes, and the extended family’s too. Both sides of the family gather every few weeks in Noel’s home, humouring him with endless games of hide and seek in the 1,450 sq ft apartment.

His arrival into the world in November 2013 was wanted, and planned for meticulously. His parents had eagerly awaited appointments to the obstetrician-gynecologist and consumed books on infant care and their development milestones — “At six months he may get a bout of fever along with some spots, but the spots should disappear after three days,” recited his parents.

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But in the eyes of Singapore law, Noel is an illegitimate child.

While Papa James is his biological father, Daddy Shawn is not. Noel was conceived through assisted reproduction in the United States. Since James and the woman who birthed Noel are not married, Noel was born out of wedlock. He is also an American citizen.

The family has been given pseudonyms to protect the identity of their son.

James tried to remedy his son’s status, applying for a single-parent adoption that in Singapore would give James sole rights and responsibility to the child and remove the illegitimate label. James and Shawn were also hopeful that this would make it easier for Noel to get Singapore citizenship. The couple stressed that it was not about pushing any agendas for gay issues.

After three years, the Family Justice Courts rejected the application a day after Christmas.

In her judgement, District Judge Shobha Nair wrote: “The applicant and his partner knew that the laws of Singapore allow the use of assisted reproductive technologies by married couples only. There are no services which promote surrogacy in Singapore.

“This application is in reality an attempt to obtain a desired result — that is, formalising the parent-child relationship in order to obtain certain benefits, by walking through the back door of the system when the front door was firmly shut.”

She said it is her duty to consider unlocking the back door if the child’s welfare demands it, but it was clear to her that it does not.

She wrote: “The child will continue to be given a roof over his head, food on his table, a good education and a support system — with or without an adoption order.”

The couple submitted an appeal of the judgment on January 4.

Dismayed, disappointed and worried

In their first media interview, James told This Week in Asia his initial reaction was sadness. “The first feeling that I had when I got that was, ‘Wow, so my country is telling me that my partner and I, although we’ve contributed this much and can contribute more, if we moved it doesn’t make a difference to them at all’.”

James is a doctor while Shawn works in the marketing industry. Both are 45 and of Chinese ethnicity.

Then there is another worry: “Now we’re uncertain if he can stay here in the long-term,” said James.

His parents brought Noel home before he was a month old under a three-month tourist visa available to American citizens. In December, they applied for citizenship and a long term visit pass — issued by the country’s Immigration and Checkpoint Authority at a validity of up to two years — for him.

In August 2014, Noel was rejected for citizenship but given a long-term visit pass which lets him stay in Singapore for six months, whereupon the pass has to be renewed.

They appealed for citizenship through a Member of Parliament but was unsuccessful.

In December 2014, James applied for adoption. At that point, Noel was switched to a dependent’s pass that has since been renewed every six months.

His parents worry about how none of these passes are a guarantee.

If Noel is denied a renewal, the parents will either have to take him in and out of the country every three months — American citizens can get a three-month tourist visa in Singapore — or move.

But migration is a last resort.

Said James: “Our lives are here. Our family and social support. All of this, our son will lose if we were to move.”

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Judge Nair said that there is no evidence the family would have to move. But in the same breath she added: “Even if that became a reality, parents often take uncomfortable and even painful personal steps for their children.”

A four-year-old, she wrote, will “thrive anywhere if in the hands of loving parents”.

Noel just turned four two months ago, but in typical Singaporean fashion, his parents are already thinking of primary-school issues.

Shawn said: “Now he’s in preschool and that’s fine because it isn’t a government-run preschool. We have no childcare grant but that’s also OK. But what happens when he needs to enrol for primary school?”

Both fathers grew up in Singapore and attended local schools until Shawn headed to Australia for his degree. Both performed their National Service. They want the same for their son.

But without Singapore citizenship — they had applied after they returned to Singapore when the baby was a month old and got rejected eight months later — it may be hard for Noel to get into a primary school, since foreigners can only register in the last phase, after six other rounds. Often, popular schools would have run out of space and resorted to balloting way by the third or fourth registration round.

“Getting placed in a local school is uncertain, and he could also end up in a school far from where we live,” said James.. The family home is in Central Singapore.

Noel will also pay higher school fees throughout his life here as a foreigner. As an illegitimate child with only James’ name on his documents, inheritance of James’ estate may also prove to be a problem. Shawn and James will have to circumvent that with a will.

Why have a child

To love a child of one’s own and to be loved by that child is a basic human need, wrote Judge Nair in her grounds of decision.

And when James and Shawn hit middle age, the urge to have children grew strong.

The couple — who have been dating since 1998 and have lived together for 13 years — spent a lot of time with Shawn’s nephew when the now teenager was young,

Said Shawn: “We were very involved in his childhood. He stayed over, we took him out, coached him through primary school.”

When the boy grew up and did not want to spend as much time with his uncle and godfather, “It was like an empty nest syndrome,” said Shawn.

He thought: “There are so many unwanted kids around. If we can love our nephew so much to the point that I think of him every day even though he is not biologically mine, I think we can have enough love and affection for other children who may not be ours biologically.”

Hence they looked into adoption. They found out that single men can adopt boys, spoke to a few adoption agencies but heard that the adoption would not go through if the authorities knew they were gay.

“You would have to hide a lot of things from the adoption officer,” said James. The couple did not want to lie.

At the same time, they had met single men who had children through surrogacy and the children were living with them. One even got naturalised as a Singapore citizen.

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They did their research, realised there were no laws prohibiting surrogacy, so they went ahead.

They found a centre in the United States, picked an anonymous Caucasian egg donor from her profile, wrote up their profile — a photo, dreams, aspirations, why they want a child — for the centre to show potential surrogate mums.

Their surrogate mother, who is married with three children, picked them because she wanted to help gay parents. They met over a video call, again in person at the lady’s home, and that was it. “It is not that transactional, she has to choose us,” said Shawn.

Both families bonded and throughout the pregnancy, the surrogate mother kept in touch with the men over WhatsApp, updating them on the doctor’s visits and how she was feeling. In November 2013, James and Shawn were with her and her husband in the labour suite. After a six-hour labour, Shawn, with tears in his eyes, cut the umbilical cord.

“I was very emotional,” said Shawn.

“I was just overjoyed. Suddenly my life felt so much more hopeful, so much more promising,” said James.

The grey area in surrogacy

In her ruling, Judge Nair said the fact that the couple paid for this surrogacy “reflects the very thing the Adoption Act seeks to prevent — the use of money to encourage the movement of life from one hand to another”.

She said it was not about the parents being in a same-sex relationship, that was “no place of the Court to dictate”.

The couple’s lawyer, Ivan Cheong agreed: “The focus should not be on the adopting parent’s sexuality but the potential impact that if a child is conceived through surrogacy, the adopting parent {or parents if a heterosexual couple in a lawful marriage} may not be able to adopt their own child.”

But despite the red tape, surrogacy is not new in the Lion City.

Though no one in Singapore offers this service, there are also no laws against it. Local media reports from 2014 said that “people from Singapore have been having babies through surrogate mothers for at least the past decade”.

A December report said the British Surrogacy Centre of California helped Singaporeans with 15 surrogate children born last year who were brought back to Singapore and passed off as children born to the couples overseas instead of a surrogate.

Family lawyer Sim Bock Eng said: “I do not know of any case of a Singapore couple using a Singapore surrogate mother, though I know of instances of Singapore couples using surrogate mothers outside Singapore. In those instances, applications were made for the adoption of the children subsequently in Singapore.”

Many countries seem to make a judgment based on whether the surrogacy was a commercial one, or an altruistic one, where the surrogate mother gets compensated for medical expenses and loss of earnings but does not turn a huge profit.

The United Kingdom and Australia allow altruistic surrogacy. The US allows a mix of commercial and altruistic surrogacy depending on state laws.

France bans surrogacy, along with Germany, Spain and the Netherlands, but France let its citizens bring surrogate babies home.

In Hong Kong, making or receiving payment for surrogacy arrangements are a criminal offence with a maximum jail term of two years and a fine of up to HK$100,000. Hong Kong couples who bring an overseas surrogate baby home may face investigations. The courts will decide whether the amount paid to the surrogate mother is reasonable for medical expenses and loss of earnings, or if it is too high and constitutes a commercial arrangement.

In Noel’s case, the judge said the US$200,000 paid by his parents was “not a small amount of money and the commercial complexion of the transaction cannot be ignored”.

Following this case, Singapore’s Ministry of Social and Family Development reiterated its stance. Singapore’s public policy encourages parenthood within marriage, said the ministry. “Planned and deliberate parenthood by singles, as evidenced through the intentional use of assisted reproduction and/or surrogacy runs contrary to this,” said a ministry spokesperson.

“The Adoption of Children Act prohibits any payment or reward to the biological or adoptive parents for the adoption of the child, except with the sanction of the Court.”

The growth of non-traditional families

Despite Singapore’s official stance, parenthood does exist outside of marriage in the Lion City, and sometimes, like in the case of James and Shawn, deliberately.

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And then there is Emma — not her real name — who at 33 and after a divorce, decided she wanted a child. She did not want to wait to meet a man, have him propose and then have a child years later. Instead, she decided to go to Copenhagen where, while she was ovulating, vials of sperm from a donor bank were delivered to her hotel room. She inseminated herself, got pregnant and gave birth in Singapore. Emma’s family and friends support her decision to have and raise her son alone.

Meanwhile, James and Shawn have not run into discrimination at doctors’ visits, while out in public, or while enrolling in preschool.

James recounted how an elderly neighbour of his mother, whom the family is not close to, once told Noel: “You’re so lucky — you have a papa and a daddy.”

Said James: “In all aspects of our life, we’ve never been made to feel different, or been discriminated against, except when dealing with the authorities.”

Still, public opinion on such families are split.

Pink Dot, organisers of Singapore’s annual lesbian, gay, bisexual and transgender rally, calls the current laws outdated. It said in a statement: “Let us not forget that ‘family’ goes beyond just the narrow definition of man, wife and children, and what is most important isn’t its constituent components, but that they all come together in love, respect and dignity.”

But there are also Singaporeans such as one reader who wrote in to a newspaper in Singapore to say that “children require more than just love and stability. They thrive with a father and a mother.”

James’ lawyer Cheong said at the end of the day, it is up to what the government thinks is public sentiment. “It is for Parliament to enact the necessary amendments should it deem fit and necessary to reflect changing societal attitudes and norms,” he said.