Selected Legal Issues Concerning Surrogacy in Malaysia*
V. COMPARISON WITH THE LAW IN OTHER JURISDICTIONS Having discussed the four legal issues that may arise as a result of a surrogacy arrangement,
6. Guiding principles
(1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
The above principle places importance on the wellbeing, and best interests of the child, not only through his or her childhood period, but also for “the rest of his life”. Section 5 further explains the principles which would be administered in safeguarding the wellbeing and best interests of the child concerned as follows:
(2) Subject to subsection (1), this Act is to be administered according to the following principles -
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that -
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child’s birth parentage; and
(iii) promotes the development of the child’s emotional, mental, physical and social wellbeing;
(b) the same status, protection and support shall be available to a child born as a result of a surrogacy arrangement regardless of -
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;
(c) the long-term health and well being of parents to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.
This Act ensures that the child concerned is provided with a safe, stable and nurturing family and home life and the development of the child’s emotional, mental, physical and social wellbeing. Upon perusing the above section, the writer is of the opinion that the most important part is paragraph (b) which expressly states, inter alia, that regardless of how the child was conceived under the surrogacy arrangement or whether there was a genetic relationship between the child and any of the parties to the arrangement, the same status, protection and support should be available to the child. This means that no matter whether the child was conceived by way of a traditional surrogacy or a gestational surrogacy, he or she should be given the same status, protection and support. It is submitted that “status” here, though not defined in the Act, could be presumed to refer to the legitimate status of the child. If this presumption is accepted, this would resolve the problem of the illegitimate status of a child born by way of a gestational surrogacy and the legal issues that arise thereafter.
Apart from resolving the issue of the legitimate status of the child, this Act also resolves the problem of the surrogate mother refusing to hand over the child to the intended parents. Reference could be made to section 39 of the Act which provides on the “Effect of a parentage order”. In order for this section to be applicable, the intended parents have to obtain a parentage order from the court provided for under sections 21 to 38.38 The effect of a parentage order is provided for under section 39(2) as follows:
(2) On the making of the parentage order -
(a) the child becomes a child of the intended parent, or intended parents, and the intended parent or intended parents, become the parent, or parents of the child; and (b) the child stops being a child of a birth parent and a birth parent stops being a parent of the child.
Therefore, once a parentage order is issued by the court, the birth mother or the surrogate ceases to be the parent of the child concerned and the intended parents step into
38 Part 2 of the Act.
the shoes of the surrogate, thereby answering the question of who is the lawful guardian entitled to have custody of the child.
B. India
India could be described as a leader in international surrogacy. Many infertile couples seek Indian females as surrogate due to the relatively low cost. Commercial surrogacy has been legal since 2002. The issue of commercial surrogacy arose in the landmark case of baby Manji or “Baby M” (Japanese Baby), where a Japanese man’s sperm and an egg from an unknown donor were fertilised through IVF in Gujarat in July 2008. The Supreme Court held that commercial surrogacy is permissible in India and directed the legislature to pass a law to govern surrogacy arrangements in India.39
As a result of the above case, the Law Commission of India submitted its 228th Report on “Need For Legislation To Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties To A Surrogacy”. The Commission has strongly recommended against commercial surrogacy.40
The Assisted Reproductive Technology Bill 2010 aiming to regulate the surrogacy business in India was passed to provide for a national framework for accreditations, regulation and supervision of assisted technology clinics, for prevention of misuse of assisted reproductive technology, for safe and ethical practice of assisted reproductive technology, for safe and ethical practice of assisted reproductive technology services and for matters connected therewith or incidental thereto.41
Chapter VII of the Bill spells out the Rights and Duties of Patients, Donors, Surrogates and Children. Section 34(1) states that both the intended parents and the surrogate shall enter into a surrogacy arrangement and this agreement shall be legally enforceable. Subsection (2) goes on to state that all expenses until the child is ready to be delivered to the intended parents shall be borne by them.
Section 34(3) is a pertinent provision in this Bill as it expressly permits the surrogate to receive monetary compensation from the intended parents. When comparing this statute to the Surrogacy Act of Queensland, it could be noted that this proposed law allows commercial surrogacy whereas the Australian law expressly prohibits it.
Section 34(4) provides that a surrogate mother shall relinquish all parental rights over the child. This is an extremely important provision as it prohibits the surrogate from claiming parental rights over the child either after the child is born or at a later date. This is also to protect the welfare of the child in order to avoid any confusion in the future as to the identity of his or her biological mother.
Section 34(1) of the Bill provides that the intended parents are legally bound to accept the custody of the child irrespective of any abnormality that the child may have.
This provision is to ensure that the intended parents do not breach the agreement on the
39 Surrogacy Laws India, Legally Yours: http://www.surrogacylawsindia.com/legality.php?id=%207&menu_
id=71. Site accessed on 1.3.2013.
40 Ibid.
41 Statement of Objects and Reasons.
ground that the child was born abnormal. If the intended parents refuse to accept the custody of the child, it would constitute an offence under this Bill.
Section 35 constitutes a very important provision as it determines the status of the child. Subsection (1) provides that a child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock, and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through traditional surrogacy. There is no mention of the status of a child born from a gestational surrogacy. Nevertheless, subsection (7) would come in handy to help solve this problem. Subsection (7) states that the birth certificate of a child born through the use of assisted reproductive technology shall contain the name of the parents who sought such use. Therefore, it is possible to assume that the status of a child born using the gestational surrogacy method would be deemed to be a legitimate child under this Act.
However, this Bill is yet to become law in India. It would in fact solve many legal issues once it is enforced.
VI. RECOMMENDATIONS
Having looked at the serious legal issues that may arise in Malaysia as a result of surrogacy arrangements (especially gestational surrogacies), the writer would next attempt to recommend certain measures to resolve the abovementioned issues. The main issue that needs to be addressed here is concerning the legitimate status of a child born by way of a gestational surrogacy. As stated earlier, such child would be deemed illegitimate in the eyes of the law.
In order to overcome this problem, it is submitted that the child should be legitimated.
One way of legitimating an illegitimate child is through adoption. The intended parents would have to apply to the court under the Adoption Act 195242 for an adoption order, having complied with the conditions stated in the said Act. Upon the adoption order being made by the court, they would become the legal parents of the child. Section 9 of the Adoption Act 1952 states the effect of an adoption order as follows:
9(1). Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent, guardian of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock:
Provided that, in any case where two spouses are the adopters such spouses shall in respect of matters provided in this subsection and for the purpose of the jurisdiction of any Court to make orders as to the custody and maintenance of and right of access to children stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the
42 Act 257.
adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother, respectively.
Hence, once the adoption order is made by the court, all the right, duties and obligation of the biological parents are relinquished and are transferred to the adoptive parents.
At this juncture, a very pertinent issue needs to be highlighted. Section 6 of the Adoption Act states the matters the court has to consider before issuing an adoption order. One of the matters stated in section 6(c) is that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction.
Therefore, if the surrogacy arrangement between the intended parents and the surrogate is a commercial surrogacy, it would not be possible for the intended parents to adopt the said child as the Adoption Act prohibits altogether any monetary payment in exchange for the child. The reason behind this prohibition is that a child should not be treated as a chattel.
As an alternative to the above recommendation to adopt the child concerned, with the rising number of infertile couples resorting to surrogacy as a way for them to have a child and the increasing popularity of surrogacy, the writer would recommend that a law be passed to regulate surrogacy arrangements in Malaysia, as has been done in other jurisdictions. It is also pertinent for the legislature to come up with such laws quickly. This is due to the fact that there is no surrogacy law, the children born as a result of surrogacy arrangements would be deprived of their basic rights, as has been discussed earlier.
In addition to the above measures, it is also pertinent for the medico-legal institutions in the country such as the Malaysian Medical Association and the Bar Council to conduct legal clinics to educate the intended parents and surrogates on the legal issues that would arise as a result of surrogacy arrangements. The position concerning the Muslims wanting to resort to surrogacy is resolved as a result of the fatwa issued in 2008. The problem therefore is concerning non-Muslims wanting to enter into surrogacy arrangements.
VII. CONCLUSION
In conclusion, it is submitted that it is disheartening to note that the development of Malaysian law is not on par with the development of medical science in the nation.
Medical science has made it easy for childless couples to resort to surrogacy methods to have a child. All they have to do is to seek medical advice from a medical practitioner who is a specialist in infertility.
On the other hand, the legislature is left far behind in enacting laws to regulate surrogacy arrangements in order to ensure that the rights of all the parties concerned, especially the child, are protected. This is a serious issue that the country has to grapple in the coming years if the legislature does not make any attempt to enact a law to regulate surrogacy in Malaysia for the non-Muslims.
† This article is dedicated to the late Professor Dato’ P. Balan who was a source of wise counsel and great inspiration.
* Senior Lecturer, Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia
** Senior Lecturer, Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia
*** Lecturer, Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia