Expanding the Boundaries of Assisted Reproductive Technology in Malaysia: The Case of Single Women and Same-Sex Couples
Haniwarda Yaakob1*
1 Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, Malaysia
*Corresponding Author: [email protected]
Accepted: 1 April 2020 | Published: 15 April 2020
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Abstract: The birth of the world’s first ‘test-tube’ baby in 1978 marked a significant landmark in the field of Assisted Reproductive Technology (ART). When first introduced, ART were primarily meant to alleviate infertility among heterosexual married couples. This position is still manifested in laws and policies on ART in several jurisdictions including Malaysia. Nonetheless, with changing social norms, the ‘right’ to procreate have also been claimed beyond the traditional nuclear family setting. With the rising number and acceptance of same-sex relationships, these individuals are now claiming for equal access to ART to enable them to create a family. Similarly, the number of single unmarried women are also rising where many wishes to conceive alone without a male spouse for various reasons. A crucial issue, thus, arises on the acceptability of allowing legal access to ART for same-sex couples and single women in Malaysia. This represents the main thesis of this paper where the harms and benefits of expanding the boundary of ART beyond the scope of heterosexual married couples are critically explored. Overall, it is concluded that although the alleged harms on children is still lacking in substantial evidence, the clear prohibition against the practice in Islam is likely to hinder its recognition in Malaysia.
Keywords: Medical Law and Ethics, Bioethics, Assisted Reproductive Technologies
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1. Introduction
The birth of the world’s first ‘test-tube baby’, Louise Brown in 1978 using In Vitro Fertilisation (IVF) marked a significant advancement in the field of assisted reproductive technology (ART) (Managaro, 2018). Since then, the use of ART such as IVF has been increasing rapidly and it is estimated that nearly eight million babies have been born using this technique worldwide (Brown, 2018). In Malaysia, the first baby born through IVF in a private hospital was reported in 1987 (Hamzah, 2012). In 2001, Hospital Universiti Kebangsaan Malaysia (HUKM) claimed to be the earliest public hospital to offer IVF which resulted in the birth of a baby girl on 11 April that year (First IVF Baby Born at a Government Hospital, 2001). At present, ART is offered by numerous private and public fertility clinics (Meikeng, 2015). Examples of ART services available in Malaysia include Intra-Uterine Insemination (IUI), Intracytoplasmic Sperm Injection (ICSI), egg, embryo and sperm freezing and Preimplantation Genetic Diagnosis (Assisted Reproductive Technology, n.d.). One of the emerging issues on ART is the question of access to the technologies to same-sex couples and single women. This is the overarching issue that this paper seeks to explore.
2. Methodology
This paper adopts a pure qualitative approach where relevant literatures on the issues are analysed. This is a purely doctrinal research that examines the relevant legal and ethical issues identified.
3. Discussion
3.1. The Law on ART
Although ART is increasingly on demand in Malaysia, adequate legal measures to govern the technologies has yet to be put in place (Assisted Reproduction Law Facing Hurdles, Says D- G, 2012). A specific law on ART has been proposed but as of the date of writing, this law has yet to be passed (Meikeng, 2015). However, in 2006 the Malaysian Medical Council (MMC) has issued a Guideline on Assisted Reproduction to oversee the practice of ART in public hospitals. In 2012, the Ministry of Health issued a guideline on the operation of ART, namely the “Standards for Assisted Reproductive Technology – Embryology Laboratory and Operation Theatre”. Private fertility clinics are, nonetheless, not bound to adhere to these guidelines and many opt to form their own rules and policies (Yaakob, 2013).
The legal lacunae in Malaysia on ART are contrasted with several European and Asian jurisdictions that have introduced specific law in this area. In United Kingdom (UK) and Canada for instance, law heavily regulates ART. In the UK, a specific piece of legislation entitled the Human Fertilisation and Embryology Act 1990, amended in 2008 (HFEA 1990) is put in a place and a specific body, the Human Fertilisation and Embryology Authority (HFEA) is established to administer the practice of ART in that country. Similarly, the Assisted Human Reproduction Act 2004 governs ART in Canada. As for Asian countries, Singapore has, in 2013, introduced the Status of Children (Assisted Reproductive Technologies) Act 2013 to accommodate specific issues concerning children born using ART. While in Thailand, the Regulation on Assisted Reproduction Technology Standards and Guidelines B.E. 2540, National Medical Association Order 1997 is available as a mechanism for ART regulation (Yaakob, 2018). These laws and guidelines incorporate various aspects such as access to ART.
3.2. Legal Access to ART
In most jurisdictions including Malaysia, access to ART is confined to couples within a legal heterosexual relationship or marriage (IFFS, 2016). Over the years, this norm begins to change with the growing acceptance of same-sex marriages and single parenthood where access to ART has been widened to include these groups (IFFS, 2016). In Malaysia, however, the MMC Guideline on Assisted Reproduction (2006) specifically emphasised on the importance of marriage in determining access to ART. Section 2 provides that, “The sanctity of marriage and the importance of marriage prior to having children is a widely held belief by society in Malaysia…In this country, assisted reproduction technique must only be offered to married couple.” Furthermore, in 2009, the then Malaysian Health Ministry Director-General, Dr. Ismail Merican, announced that a law to be named the Assisted Reproductive Technology (ART) Act would be passed to ensure that:
“Any ART method practised must guard against the mixing of any genes in order to preserve the inheritance of genes and heredity. Every newborn child must relate unequivocally to a biological and legal father and mother.” (Samy, 2009)
The same stipulations apply in Singapore where access to ART is limited to married couples only (Cabuyao, How Single Mothers Could Help Singapore, 2017). The same restriction is observed in some Islamic countries including Indonesia, Saudi Arabia, Jordan, Iran and Iraq where couples contemplating ART must be in a legally recognisable heterosexual marriage.
This condition is also observed in some western jurisdictions such as Italy, France and Portugal (IFFS, 2016). On the contrary, several western countries do not restrict access to ART to married or heterosexual couples only. An example is the UK where the amendment to HFEA 1990 made in 2008 has expanded access to ART to single parent and same-sex couples. This is achieved through the amendment to section 13(5) of the HFEA, which replaced “…the need of that child for a father…” to “…the need of that child for supportive parenting…” In 2018, it was reported that France is likely to amend the current law to legalise access to ART for single and same-sex couples where such move is argued to be “a matter of social justice” (Love, 2017). A bill to legalise access to IVF for lesbians has been sent to Parliament in July 2019 (Rose, 2019).
The growing demand and access to ART to single women and same-sex couples are disturbing given the potential consequences on the resulting child and societal norms. These concerns are more alarming in Malaysia due to the special status accorded to Islam as the religion of the federation under article 3(1) of the Federal Constitution. A question, thus, arises on whether Malaysia should follow the development in several western jurisdictions such as UK and France that have stepped away from the traditional concept of a nuclear family to include single and same-sex parenthood. This is the overarching issue that this paper seeks to resolve but first, the science of some ART methods often used by same-sex couples and single women wishing to conceive, namely IVF and IUI are briefly explained (Ronner, 2008).
3.3. Art for Same-Sex Couples and Single Women
Usually, single women wishing to conceive alone without a male spouse will opt for IUI or also known as artificial insemination using donor sperm. The same goes with lesbian couples who will normally be inseminated by donated sperm. Alternatively, both lesbian partners may contribute to the genetic make-up of the child by one partner-providing ovum, which is fertilised by donor sperm using IVF. The resulting embryo is then transferred into the other partner’s uterus for pregnancy to occur (Wert, et al., 2014). As for gay couples, donor egg, IVF and gestational surrogacy are needed to enable them to become fathers (Greenfeld, 2007). In what follows, the science of IUI or artificial insemination and IVF are briefly explained.
3.3.1. IUI or Artificial Insemination
IUI is a fairly simple procedure in ART. Using this technique, doctors will inject sperms directly into the woman’s cervix, fallopian tubes or uterus. When sperms are inserted straight into the uterus, the procedure is also known as Intrauterine Insemination (IUI). This method is useful for men with low sperm count or when the sperms are not healthy enough to travel through the cervix to reach the fallopian tubes. Artificial insemination or IUI is also used for women with endometriosis or other abnormality in their reproductive organs (Infertility and Artificial Insemination, 2019). This technique essentially involves four steps. First, the woman is given ovarian-stimulating medicine so as to stimulate ovulation. When ovulation occurs, IUI is performed. To do this, the semen sample is washed in the laboratory in order to separate the semen from the seminal fluid. Finally, the sperm is inserted into the woman’s uterus using a catheter (Intrauterine Insemination, n.d.). The success rate for this method is generally around 20% depending on factors such as the woman’s age and the reasons for
infertility (Intrauterine Insemination, n.d.). Sometimes, single women and same-sex couples also use IVF in conjunction with IUI (Planning for Pregnancy, n.d.).
3.3.2. IVF
IVF involves series of procedures that aim to assist the conception of a child outside the woman’s body. To perform IVF, matured oocytes are retrieved from the woman’s ovary and fertilised by male’s sperm in a petri dish. Successful fertilisation will result in the creation of several embryos, which are then implanted into the woman’s uterus (In Vitro Fertilisation (IVF), n.d.). IVF may be performed using the couple’s own gametes or donated gametes. A surrogate mother may also be involved in cases where the woman is unable to carry the embryos to term or in the case of gay couples (In Vitro Fertilisation (IVF), n.d.). An IVF cycles commences on the woman’s first day of menstruation and normally completes in two weeks (In Vitro Fertilisation (IVF), n.d.).
Although considered as a beneficial, ART carries a whole spectrum of legal and ethical issues that must be carefully evaluated. Moreover, with the growing demand for ART from various sections of the society such as same-sex couples and single women, many have proposed for the expansion of ART to these category of community to enable them to start a family. In what follows, the arguments for allowing access to ART to same-sex couples and single women are critically analysed.
3.4. Art for Single Women and Same-Sex Couples: Issues and Arguments
The natural instinct to have a family is present is almost every human being regardless of sexual orientation. In realising this desire, same-sex couples have gone a step further in attempting to have children of their own, either using ART or adoption (Gates, LGBT Parenting in the United States, 2013). Gates (2015) further observes that:
“Same-sex couples and different-sex couples may not look as different in the future as they do today. Already, they have similar perspectives on the desire for and purpose of marriage, and increasing numbers of same-sex couples are marrying and having their children as married couples. Even with the challenging circumstances of social and legal inequality between same- sex and different-sex couples, it’s clear that same-sex couples are as good at parenting as their different counterparts, and their children turn out fine.” (Gates, 2015, pp. 80-81).
The desire to have children is also manifested by single women wishing to conceive and raise children alone without a male spouse and ART is an avenue for these women to do so (Herring, 2016). As with same-sex couples, the issue remains whether access should be granted. Several arguments in favour of allowing access of ART to single women have been advocated. For example, it has been suggested that a single woman may conceive naturally through a ‘one-night stand’ relationship and raise her child alone without interference by the law. As such, there seems to be no acceptable reason to prevent her from doing the same with aid from technologies (Herring, 2016). Jackson (2016, p. 772), therefore, rightly opines that:
“Single or lesbian women who want to have children are usually fertile, so if they cannot access treatment services in a licensed clinic, they could instead engage in casual, unprotected sex. Not only would this be less safe, but also it might mean that the resulting child would have no information about her genetic father. For reasons of safety and to ensure that offspring have access to information from the register, there may be good reasons for encouraging women without male partners to make use of licensed services, rather than leaving them to try to find alternative ways to conceive.”
In Singapore, offering ART to single women has been promoted as a useful step in boosting population growth in the country. This is due to the situation where many successful and financially stable women with the capability to rear children have not found themselves a marriage partner yet (Cabuyao, 2017). Allowing access to ART for single women has, thus, been encouraged on the basis that:
“There are married couples who chose not to have children, and there are also women who may choose to have children without the intent of marrying. They should not be robbed of the choice to raise a child, just as married couples have the option to not have children. Allowing single women to bear children through their preferred means can help counterbalance the effects of married couples opting for no-children decision” (Cabuyao, 2017).
Likewise, the relaxation on China’s one-child policy has been argued as grounds for the abolishment of the restriction on access to ART to single women (Xiadong & Juan, 2018).
Allowing single women to have a child, arguably, may assist the country to reach its policy that now permits couples to have two children so as to ease the concerns on diminishing labour force (Xiadong & Juan, 2018).
Another argument propounded to support access to ART to single women and same-sex couples is grounded on the basis of discrimination. According to McLean (1986):
“Whilst the state may have no general duty to facilitate reproduction through technology or the supply of a partner, once facilities are provided-for example through in vitro fertilisation and surrogacy programmes-to deny access on the grounds of sexuality is to infringe the right on a discriminatory basis.”
On this basis, Deech and Smajdor (2007) believe that any decision to deny access to ART, be it to infertile couples or single and same-sex couples, should be based on the same reasons such as a serious risk of harm to the resulting child, and not merely on sexual orientation or status of the couples. Hence, the question now centres on proving the existence of this harm.
In what follows, the possible harms of allowing access to single women and same-sex couples are examined together.
3.4.1. Harm to The Resulting Child
The most accepted structure of a family is one consisting of two heterosexual married couples who are genetically connected to the child. Any other family structure beyond this traditional setting is often deemed as harmful to the child. This perception is based on the belief that children born to and raised by heterosexual married couples receive more benefits than those raised by single women or same-sex parents (Fasouliotis & Schenker, 1999). In 1984, the Warnock Report opined that:
“…the best interest of the child dictate that it should be borne into a home where there is a loving, stable, heterosexual relationship and that, therefore, the deliberate creation of a child for a woman who is not a partner in such a relation is morally wrong.”
Hence, the Committee concluded “…as a general rule, it is better for children to be born into a two-parent family, with both father and mother although we recognise that it is impossible to predict with any certainty how lasting such a relationship will be.” (Report of the Committee of Inquiry into Human Fertilisation and Embryology, 1984, pp. 11-12).
Concerns on the child’s welfare rests on the fear that children born outside the traditional norm of a nuclear family consisting of a father and a mother, will suffer psychologically. For lesbian couples, there is a concern that the social isolation experienced by these women and their personality might pose a serious harm to the resulting child (Wert, et al., 2014).
Similarly, homosexuality is condemned in many countries including Malaysia. Hence, there is a serious fear that children born to homosexual parents may be socially stigmatised, excluded or even be a victim of bully (Wert, et al., 2014). In addition, the absence of a male figure in a lesbian family endangers the normal sexual development of children where boys may be less masculine while girls may be les feminine which consequently may lead to homosexuality (Fasouliotis & Schenker, 1999). This concern was legally considered the case of L v D 608 S.W. 2d 64 (Ky. Ct. App. 1980) where the court of appeal in Kentucky, United States reversed the decision of a trial judge who did not contemplate the possibility that the child raised by a same-sex couple might face hardship in forming a normal heterosexual identity.
Lesbian women have been further labelled as unsuitable to become mothers, as they are often perceived as highly masculine. Thus, their motherly instinct and capability of rearing children are questionable (Mamo, 2007). Others also believe that two lesbian mothers in a household are not fit to raise children together due to the possibility of jealousy between them, which could be caused by the inability to fully manifest their maternal instinct. In this setting, one lesbian mother will always have to take into consideration the feelings of her partner who is also a mother to the same child. This conflict may eventually affect the social environment in the family (Bonaccorso, 2009). The suitability of two gay men to become fathers has also been questioned. Concerns on gay fatherhood encompass stigmatisation to the child, the likelihood that the child will become homosexuals and even the possibility of the child being sexually molested by their gay fathers (Mallon, 2004).
As for single women, critics have relied on studies conducted on single parents to argue that granting access of ART to single women endangers the resulting child. For example, several studies conclude that children raised by single parent do not achieve the same level of success in terms of psychological and academic achievement (McLanahan & Sandefur, 1994). This is supported by Amato and Keith (1991) who suggests that that these children are less likely to pursue their education and will leave home early to start their own family. This phenomenon could be associated with economic hardships faced by single parents in raising children.
Denying the child of a legal father consequently diminishes the economic role of a father in a household. Deech and Smajdor (2007, p. 166) rightly emphasise that it is not uncommon for both parents in any society to be gainfully employed due to the rising cost of living that cannot be met by a single income. However, they further question: “This means that the absence of a supplementary income may indeed affect single families, but – in theory at least – this could apply to the lack of either partner.”
Another alarming consequence for children born to single unmarried women is social stigmatisation. In Asian societies including Malaysia, the idea of women having children out of wedlock is extremely disturbing and still considered as unacceptable. For Muslims, children born other than in a valid marriage will not be able to carry their biological father’s surname and this leaves profound social and psychological impact on the child (Apa Sebab Seseorang Itu 'di-Bin Abdullah' Dan Kenapa Ada Yang Lawan Isu Ini?, n.d.). Imagine the consequences if single women are allowed access to IVF and produce a child alone in Malaysia. These children will be ‘haunted’ with not only social but also legal repercussions
of being illegitimate children such as losing the right to maintenance from their biological father (Gopal, 2015).
Nonetheless, some of these concerns have been refuted in many ways. First, it has been argued that there is no conclusive evidence to suggest that children born to married heterosexual parents will remain in this atmosphere, as there is no guarantee that marriage will last. The child who was initially born to this ‘perfect’ traditional setting may end up being raised by a single parent should divorce or death of a parent takes place (Herring, 2016). Unsurprisingly, children originally born to and raised by heterosexual parents may end up in gay or lesbian households due to a change in sexual orientation by either parent (Greenfeld, 2007).
The rising number in divorce cases may support the argument on the uncertainty in the lifespan of marriages. In Malaysia, the statistics on divorce is alarming where in 2017, it was reported that 33 divorce cases took place every day (Kes Cerai Tertinggi di Selangor, 2018).
It is, thus, acceptable to conclude that divorce is now socially acceptable in this country (Shabuddin, Johari, Abdullah, & Aziz, 2016). What then, is the basis for denying access to ART for single women or even same-sex couples when there is no ascertainment that a legally valid heterosexual marriage will persevere and children might still end up living in a single parenthood or same-sex families. It is also worth arguing that a heterosexual marriage full with conflicts will also psychologically harm children in that marriage by having to live in such a hostile environment (Herring, 2016). Being raised by a single mother or same-sex parents, adds Robinson (1997), is preferable than living in a disruptive and dysfunctional family consisting of heterosexual parents. The point that matters is that there is no guarantee that living in a heterosexual married parents will continuously ensure the that the child’s welfare is safely protected.
On the contrary, studies conducted abroad have suggested that children born outside the traditional marriage setting may receive more love and benefits in many other ways. For example, a study conducted in Belgium on lesbian parenthood found that children receive more attention by their mother’s ‘partner’ than they normally acquire from a father (Brewaeys, Ponjaert, Hall, & Golombok, 1997). Living without a biological father does not necessarily harm the child because what matters is that the child is raised in a stable, loving and committed family (Falk, 1989). Broderick and Correia (2009) similarly opine that same- sex couples and single women are equally capable of providing love and care for their child just as heterosexual parents. Based on the review of various studies conducted on gay fatherhood, Greenfeld (2007, p. 19) concludes that:
“Research on gay fathers has demonstrated that gay men are motivated to become fathers for the same reasons as heterosexual men and that they are generally loving and nurturing parents.
Furthermore, there are no data to suggest that children of gay fathers are unduly stigmatized, are more likely to be gay, or are likely to be sexually molested by their fathers.”
From the discussion thus far, it is apparent that the arguments advanced against allowing access of ART beyond the traditional family setting is still speculative and in need for further supporting evidence. As such, reliance on the notion of individual autonomy may justify single women and same-sex couples’ autonomy to procreate using ART as no evidence of harm can be substantiated. Nonetheless, to conclude that same-sex couples and single women should be allowed access to ART in Malaysia is premature without examining the Islamic analysis on the issue. In the Malaysian context, reliance on the harm principle advocated by
Mill in restraining individual reproductive autonomy arguably includes harm to society caused by breach of religious tenets particularly Islam (Yaakob, 2009).
3.4.2. The Islamic View
Islam places a strict requirement that procreation must take place within a valid marriage (Inhorn, 2006). In Malaysia, the 5th Conference of the Fatwa Committee National Council for Islamic Religious Affairs has, in 1982, issued a ruling that IVF is only permissible using ovum from the wife and sperm of the husband (JAKIM, n.d.). In 2003, the 56th Conference of the Fatwa Committee has further decided that the wife’s ovum must only be fertilised using the husband’s sperm during a valid marital period. The sperm must be extracted after marriage, as it is unlawful to fertilise the wife’s ovum with the husband’s sperm that was extracted before marriage (JAKIM, n.d.). Similarly, the use of artificial insemination is also limited in Islam to sperm from the husband to be inseminated into his wife (JAKIM, n.d.).
The confinement of ART within the perimeter of a valid marriage is based on the objective of Islamic law to protect human lineage (Kasule O. H., 2005). As lineage is fundamental in Islam, any child born outside a valid marriage will not be recognised (Clarke, 2006). ART, therefore, must be carried out using sperm and ova from the husband and wife only in order to avoid a “mixture of descent” by using donor sperm (Fortier, 2007). It is, therefore, abundantly clear that Islam only recognises procreation and the use of ART on married couples only and conducted during a valid marriage. Hence, single women contemplating procreation using donor sperm is clearly prohibited in Islam. Similarly, procreation among same-sex couples is also not condoned in Islam as marriage is only recognised between a man and woman. Homosexuality is strictly condemned in Islam and it is therefore, well defined that procreation in this relationship is totally prohibited (JAKIM, n.d.).
4. Conclusion
When first introduced to society, ART such as IVF and IUI was meant to alleviate infertility among married couples and fulfil couples’ dream of having a child. Nonetheless, with changing times and social values, the demand for ART has been expanded beyond the boundary of heterosexual married couples to include single women and same-sex couples.
This growing trend is worrying particularly in Asian societies such as Malaysia where religious and cultural values strictly prohibit procreation outside a valid heterosexual marriage. In this regard, this article has undertaken the task of analysing the implications of extending the service of ART past the scope of a traditional nuclear family. Briefly, it is concluded that although the potential harm of allowing access of ART to single women and same-sex couples on the resulting child are still in need of further investigation, the Islamic prohibition on such practices is likely to hamper the recognition of such rights in Malaysia.
This is due to the undeniable influence and role of religion, especially Islam in making law and policy in Malaysia that have been demonstrated in several aspects including bioethical discourse (Yaakob, 2013). As rightly concluded by Aziz (2009):
“The constitutional norms on the state-religion relationship in Malaysia is almost obvious, whereby Islam has been declared as the religion of the state and, being the state religion, certain constitutional position has been created for Islam. Having such provisions in the Constitution, it may be submitted that religion, or in particular, Islam should have the root in this primary source of law of the country. Complete compartmentalisation of law and religion in Malaysia cannot be sustained. Ultimately, it is found that the constitutional norms in Malaysia allow religion to provide law with its spirit.”
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