KUALA LUMPUR: A couple who have been looking after a 10-year-old boy for the last eight years now may lose the boy because his natural mother has come forward to claim custody.
The couple tried to legally adopt the boy in 1996, soon after the natural father gave him to them, but the court rejected the adoption petition then because the natural mother had not given her consent.
To complicate matters, the adoptive mother was a man who underwent a sex-change operation 17 years ago.
Lawyers in the case confirmed in court yesterday that in 1986, the adoptive mother was a 29-year-old man who opted for a sex change. By the time the child was handed to her, she had legally married a businessman.
The boy is still living with the adoptive parents although their adoption petition was thrown out by a Sessions Court in 1998.
Yesterday, lawyers for both the natural and adoptive parents argued before High Court judge Justice Md Raus Sharif on the issue of whether the adoptive mother, being a married transsexual, has a legal right to adopt a child under the Adoption Act 1952.
The issue was raised by the adoptive parents as a preliminary point in an appeal against the dismissal of the adoption petition which is pending in the same High Court.
The adoptive parents lawyer, Gobind Singh Deo, argued that the question was the first ever being raised in our courts and the court needed to make a ruling on it to set a guideline.
Setting the background of the case, he said the boys natural mother had left the matrimonial home when the boy, the youngest of her four children, was only two.
Gobind Singh said the reason she ran off was because her husband had been drinking and beating her up.
Referring to several foreign case laws from countries like Singapore, Australia and Britain, Gobind Singh argued that there were differing stances on the issue of transsexuality.
He said a Singapore case ruled that a man was to be regarded as biologically a man even after a sex change and the feminine appearance was only an alteration of the physical outlook.
There were concerns, he said, about the psychological aspect of the sex change to the transsexual and the impact of such an adoption on an ignorant child.
The issue here is whether the second appellant (the adoptive mother) comes within the meaning of a spouse under the Adoption Act? said Gobind Singh.
(Section 3(2) of the Act states that: Where an application for an adoption order is made by two spouses, jointly, the court may make the order authorising them to adopt a child.)
Justice Md Raus said: The section states spouse and the appellants are legally married. They are each others spouses. Doesnt that fit them into the Act?
Gobind Singh then interjected that the court had to make a ruling on the issue because the the interest of a boy is at stake and he will grow up to become a man one day and finding out the make up of his adoptive mother. We must consider whether the law has concerns about such effect on the boys mind.
When the boy reaches a slightly older age, it might have considerable impact on his psychological state, he added.
Lawyer Yasmeen Shariff, who was assigned by the Bar Council Legal Aid centre to represent the natural mother, said the mother had been asking for access to her son.
We have been getting problems. Sometimes we get access, sometimes we dont, she said.
The hearing continues on Jan 12.