Law of assisted reproductive surrogacy in Malaysia: a critical overview

Abstract

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.