Surrogacy: The Legal Grey Practice in Malaysia

By Kong Kah Wai

Have you ever heard about surrogacy before? It is a method in which a woman, who is also called a surrogate mother becomes pregnant and gives birth to a baby on behalf of the baby’s genetic parent. Surrogacy is always a controversial topic around the world although the legal process varies in different countries.

https://www.webmd.com/infertility-and-reproduction/guide/using-surrogate-mother The countries that allow surrogacy are mostly the Western countries like America, Canada and Russia. However, it has sneak into the Asian countries recently.

Last month, that is 20th of January 2021, a Chinese actress named Zheng Shuang was said to be involved in a surrogacy scandal. She abandoned two surrogate babies after separating with her boyfriend, Zhang Heng. The news went viral immediately and brought the surrogacy issue to the public. Zheng Shuang’s irresponsible behavior has been condemned by the public. https://edition.cnn.com/2021/01/22/china/china-celebrity-surrogacy-scandal-dst-intl-hnk/index.html

American writer, Jodi Picoult has said: “Being a parent wasn’t just about bearing a child. It was about bearing witness to its life.” Surrogacy is really a sensitive issue to be talked about as there is no specific law that governs this matter.

https://www.umlawreview.com/lex-in-breve/surrogate-motherhood-an-economic-choice-an-analysis-of-commercial-surrogacy-and-its-position-in-malaysia There are five interviewees with different ages and occupations shared their opinions about surrogacy.

YB Terence Naidu, 52, Lawyer

YB Terence Naidu is a lawyer in the High Court of Malaya. “As I know, there is no law about surrogacy in Malaysia currently. There was a proposal in 2009 which was initiated to propose Assisted Reproductive Technology Technique Services Act to regulate issues such as surrogacy, sperm banking and sperm donation. However, the proposal does not pass. There is a 2008 Taqwa which disallows surrogacy for only Muslims.”

“Although there is no law saying you can’t but there is another law that will bring you problems. The most important one is the issue of nationality. Assuming the surrogacy involved a foreigner, Article 15(a) of the Constitution says a person who wants to be a citizen, the parents should be actually married and one of them is Malaysian. In surrogacy, the surrogate mother does not get married and this will bring the problem of citizenship.” Said YB Terence Naidu.

“There is one law under Section 24 of the Contract Act that says the court will not enforce any illegal contract. The question is the surrogacy contract is considered illegal or against the public policy. Public policy is depending on the majority views toward surrogacy and it will change from time to time.”

“There should be a law to govern and regulate surrogacy issues but it is too sensitive for the Parlimen to draw out this topic. The government will only be forced to draft a law for surrogacy when the public awareness toward this issue has risen.”

Tang Soo Ting, 21, Student

Soo Ting is a 21 years old female student of University of Reading Malaysia. She is currently single but does not plan to have children after marriage. “The current living standard is high and I am not sure that I am able to give my children a good living quality. I think that I should be responsible to my children,” said Soo Ting.

“Previously, I think that surrogacy is a great advancement in science which can help the infertile couples to have their own babies. It is a good method under the protection of contract. However, after I heard about Zheng Shuang’s scandal and did some information research, I realized that some of the surrogate mothers are not protected by the contract policy. I agree to legalize surrogacy and restrict the policy arrangement in order to prevent the involved parties from simply breach the unstrict contract.”

Phoebe Lee, 38, Baker

The third interviewee is Phoebe Lee who is a 38-years-old divorced woman who has a pair of twins. She has a strong belief in Buddhism.

“From the religious perspective, surrogacy is forcibly bringing the babies to the world. The process of pregnancy should happen naturally among the couples. However, surrogacy has involved the third party in pregnancy which is unnatural, although the couples are intended to have a baby.”

“I do not support the legalization of surrogacy. I am worried that surrogacy will turn into a business and the babies will become a product which can be bought and sold if it is legalized.”

Jaycee, 32, Secretary

Jaycee is a celibatarian who does not plan to have children in her life.

“I keep neutral in the surrogacy issue but I think that there should be specific law to govern the arrangement. This can help to protect the rights and benefits of both intended parents and surrogate mothers. However, I don’t think that Malaysia should legalize surrogacy currently. Malaysia's population hasn't faced the ageing problem or decrease in large numbers. It will not be late if Malaysia starts to legalize surrogacy when the population faces a problem.”

Edmund, 40, Self-employed

Edmund is a 40-years-old man who is single but plans to get married and have his own children in the future.

“I have thought to carry out surrogacy as it may be dangerous for my future wife to give birth to baby as a senile parturient. However, the current medical field is expanding and lower the risk of pregnancy for 40s and 50s. It is very dependent on mentality and the culture at the given time. I don’t think that surrogacy will be legalized at this time but maybe in the future. I’m on the border line of whether to support or ban surrogacy.”

The five interviewees have shown different attitudes towards surrogacy issues. Most of them think that it is hard to legalize surrogacy in Malaysia as it has involved the moral and ethics problems. Surrogacy is good when it helps the infertile to have their own genetic children but it will also become a bad thing when it exploits the rights and benefits of the surrogate mothers. There is no right or wrong for this issue, as what the tragedian of classical Athens, Euripides has said, “In case of dissension, never dare to judge till you’ve heard the other side.”