Surrogacy Insights
In Malaysia, the practice of surrogacy remains legally complex and largely unregulated. The absence of specific laws directly addressing surrogacy has resulted in ambiguity and uncertainty surrounding its practice. Malaysia lacks a clear legal framework governing surrogacy arrangements, whether altruistic or commercial.
Muslim Citizens
In Malaysia, Sharia law governs family matters for Muslims, while civil law applies to non-Muslims, in a population where 60% are Muslim. In 2008, the National Council of Islamic Religious Affairs issued a fatwa that prohibits surrogacy. This ruling stems from Islamic principles, which prohibit a married man’s sperm from fertilizing another woman’s egg, as it would result in a child born out of wedlock.
Even though a fatwa has been issued, each Malaysian state’s religious authorities decide whether to enforce it.
Non-Muslim Citizens
The Malaysian Medical Council (MMC) guidelines also deem it ethically unacceptable to use assisted reproductive technology (ART) for unmarried couples, prohibiting such practices. Additionally, Malaysia does not recognize same-sex marriages.
Malaysia has not yet clearly established whether commercial surrogacy is permitted or illegal, leaving it in a state of ambiguity where engagement in such practices remains undefined.
Guidelines
The Malaysian Medical Council has issued guidelines for doctors involved in surrogacy. These guidelines state that doctors should only participate if:
- The intended parents are a married couple.
- The surrogate mother is over 21 years old and has given birth to at least one healthy child.
- The surrogate mother has undergone a psychological assessment and counseling.
- The surrogate mother is not financially motivated to participate.
Where non-Muslims are concerned, legal issues arise once the surrogate delivers the child and surrenders the child to the intended parents. There is no process to obtain a pre- or post-birth order declaring the intended parent’s name be entered onto the birth certificate. The intended parents will need to complete an adoption. There have been instances of commissioning parents acting in concert with the surrogate to falsify the registration and birth of the child to reflect the commissioning parents’ name (instead of the surrogate mother’s). In Malaysia, this is a criminal act under section 466 of the Penal Code that carries a maximum seven-year prison sentence or fine.
Without clear regulations, the rights and responsibilities of the parties involved in surrogacy arrangements, including intended parents, surrogates, and the resulting children, are not adequately defined. This lack of legal clarity can lead to various challenges and potential risks for all parties involved.
Future Legal Developments
2009
The Health Ministry introduced the proposed Assisted Reproductive Technology Technique Services Act to tackle issues like surrogacy, sperm and egg banking, and sperm donation. This initiative involved consultations with various stakeholders, including religious groups, non-governmental organizations, doctors, and government ministries. However, despite these efforts, no legislation has been enacted yet.
2023
The Malaysian government has recently identified the health tourism industry as one of the key economic areas to increase revenue for the country.
