DUE TO LEGAL POSITION AND LEGAL SURROGACY AGREEMENT AS AN INNOMINAAT AGREEMENT IN THE PERPECTIVE OF CIVIL LAW, ISLAMIC LAW AND NATIONAL LAW

Peni Rinda

doi:10.26532/jph.v6i1.4672

Abstract

Technological developments in medicine have provided an outlet for community issues with the discovery of a new method of artificial insemination is known as in vitro fertilitization (IVF). For couples who want to have children but due to medical reasons can not obtain offspring naturally, with IVF method can obtain offspring / children. But in its development appears IVF lease term or the surrogate mother's womb, the sperm and ovum from a legitimate married another woman entered in the womb. Therefore the aim of this study to determine the legal position of surrogacy agreement as an innominaat agreement in the perspective of civil law, Islamic law national law, This research used normative juridical approach, descriptive analytical research specification, method of data collection is done with a literature study on legal materials, both primary legal materials, as well as secondary materials, then analyzed by qualitative descriptive. The results showed that a good legal position surrogacy agreement according to the Civil Law, Islamic law and national law is as the agreement is not named (innominaat) and surrogacy agreement is not allowed or unlawful. While the legal consequences of surrogacy agreements either under Civil Law, Islamic law, and national law relating to the status of children, descent problems, inheritance and other rights. The legal status of children under civil law can be a legitimate child of the surrogate mother, it could be a child outside of mating recognized, while according to Islamic law status of the child as a child of the uterus rental yields laqith, while according to national law, the legal status of the child as a foster child. This inheritance rights issue depends the legal status of the child, there is nothing not inherit (civil relationship with his mother).

Highlights

The purpose of marriage as embodied in Act No 1 of 1974 on Marriage is a family who are happy and everlasting based on God
Innominaat surrogacy agreement as an agreement is no regulation, but if we think in a way argumentum per analogiam, we can apply
If we examine surrogacy agreement that no special arrangements within the meaning of the Civil Code does not include an agreement named, the position of surrogacy agreement is included in the agreement were not named

Summary

Background

The emergence of the IVF program due to provide solutions for couples who can not give birth naturally, but it is the development of science and technology in the world of health (medical). Real or real submission is done by a surrogate mother to the parents of the buyer to submit a baby from a surrogate mother's hands into the hands of the parents of the buyer, while the juridical handover is done legally is by way of adoption through the courts Once it is known what surrogacy contract, the question arises whether civil law (in this case the Civil Code) allows. For the lawful limits set out in Article 1337 of the Civil Code, which reads "that any reason is prohibited where prohibited by law, or if contrary to morality or public order" If we apply this provision in the surrogacy agreement, the surrogacy agreement is not valid, because there are laws prohibiting it, namely Act No. 36 Of 2009 on Health. Civil Code in Indonesia null and void, because contrary to the Health Act, the Marriage Law and the Law Islam (positive law in Indonesia)

The legal status of surrogacy agreements as th Innominaat

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