This article was inspired based on the Hindi film, Mimi, aired on Netflix. The story revolved around an Indian woman, Mimi, who signs up to be a surrogate for an American couple. The 25-year-old girl hopes to fulfil her ambition of becoming an actress in India, by using the enormous money (from the surrogacy agreement), promised to her for bearing the child. Things progress as planned, until a potential health hazard appeared to the unborn child. The American couple abruptly leaves Mimi who was already heavily pregnant and suggest Mimi to abort the unborn child. Mimi rejects the idea of abortion and decides to carry the child to term. Mimi gives birth to a healthy boy, Raj, revealing the earlier test result was false. After 4 years, the American couple returned to India stating that they have changed their mind and wants to take Raj back to America. Mimi refused to give Raj back to the couple.
However, the couple threatens legal action as Mimi had signed a surrogacy contract and has no legal right over Raj as long as she was paid for her services. Mimi’s family was prepared to fight for Raj’s custody, but Mimi rejects this notion and decides to give Raj back to the American couple as she doesn't want Raj to face the struggle of court cases. I’m not going to spoil the ending of this engaging, empowering and compassionate tale on humanity and motherhood for you. You can now add Mimi into your must watch list on Netflix!
Now, based on the tale above which took place in India (governed by the Indian Laws[1]), what happens if the same scenario happens in Malaysia? Can the American couple demand for the child back despite breaching the surrogacy agreement? Is that said agreement enforceable in Malaysia? We’ll deal with this is detail below.
What Is Surrogacy?
Surrogacy involves a person agreeing to carry and give birth to a baby for someone else. After the baby is born, the birth parent gives custody and guardianship to the intended parent or parents (i.e., the commissioning parent(s)).
There are generally two types of surrogacy options: traditional and gestational.
a) A traditional surrogate is a woman who donates her own egg and then carries the pregnancy. The surrogate’s egg is fertilized through artificial insemination with the husband’s sperm or a donor’s sperm.
b) On the other hand, a gestational surrogate is in no way related to the child she carries, either biologically or genetically. She becomes pregnant through the process of IVF, where the embryo or embryos created from the eggs and sperms from the intended parents or donors are implanted in her uterus for the gestational period of forty weeks.
Types of Surrogacy Arrangements
There are two types of surrogacy arrangements between the intended parents and the surrogate:
a) altruistic, where the surrogate does not receive any financial reward; and
b) commercial, where she (the surrogate) is financially compensated.
We will be focusing on commercial surrogacy arrangements.
The main aim of these types of contracts is to determine the placement of the child after his birth, in that the surrogate mother will agree that for an agreed sum, she will be expected to carry the child to term and upon safely delivering the child, she must agree to surrender not only the custody of the child to the commissioning parent(s) for them to care and nurture, but also relinquish all her parental rights over the child.
In practice, if the surrogate mother is willing to give up the child, the commissioning parent(s) may then adopt the child. There is no prohibition in Malaysian legislation (that is, in the Adoption Act 1952) preventing the child from being legally adopted by the commissioning parent so long as the provisions of the Adoption Act 1952 are satisfied (for example, the applicant and the child are ordinarily resident in peninsular Malaysia).
However, this raises the notion of womb leasing and baby selling. The surrogate is merely used to gestate life and is paid for the service which inevitable causes legal and ethical discussion on surrogacy agreements, their enforceability and their consequences
How Is Surrogacy Regulated in Malaysia?
Currently, there is no legislation governing the act of surrogacy in Malaysia.
There are also no reported cases on surrogacy, which involves an agreement by which a gestational or surrogate mother agrees to bear a child for the commissioning parent(s) for a fee. In short, if surrogacy arrangements are being conducted, no persons involved have sued over the contractual obligations, yet.
Legality and Enforceability of Surrogacy Agreements
If the surrogate mother refuses to honour her part of the bargain and does not want to part with the child after she delivers the child. Can the commissioning parent(s) claim their rights under the law of contract?
The answer is no. It would contravene section 24(e) of the Contracts Act, 1950 which reads:
"The consideration or object of an agreement is lawful unless -…
(e) The court regards it as immoral or opposed to public policy…to be unlawful. Every agreement of which the object or consideration is unlawful is void."Surrogacy could be considered unlawful as it may be considered as immoral. The law is clear, you cannot buy and sell a human life. The object of the surrogacy is the sale of rights over a human being to another. This may be considered by the Courts as immoral or opposed to public policy.
Nevertheless, there is a possibility that the commissioning parent(s) could go around this section as the Malaysian Courts have been rather unsure in their determination of what amounts to immoral acts and acts which is opposed to public policy.
As it stands, the law[2] leans in favour of the surrogate who would be under no contractual obligation to hand over the baby to the commissioning parents. Thus, any claim for damages by the commissioning parent(s) for breach of a surrogacy agreement for expenses incurred would have poor prospects of success. There is every likelihood that the Malaysian courts may adopt the reasoning used in Baby M (Baby Manji Yamada v Union of India (UOI) and Another (2008) 13 SCC 518) to strike down the surrogacy contract where the surrogate mother had formed a psychological tie to the baby and chose not to honour the agreement.
Based on the foregoing, surrogacy agreements are not enforceable in Malaysia.
Should Surrogacy Agreement Be Enforceable?
It can be seen that the legal position of surrogacy in Malaysia is still rather murky. In my opinion, commercial surrogacy agreement should be enforceable in Malaysia as a “service agreement” whereby the commissioning parent(s) engages the service provided by the surrogate (i.e., carrying a child in her womb to term and handing over the baby to the commissioning parent(s)). Of course, these agreements must be properly regulated to avoid exploitation and abuse of such arrangements.
The main reason surrogacy has not yet found its place in the Malaysian is caused by the laid back attitude of the Malaysian legislators to the possible perils of the new reproductive revolution to Malaysians.
It’s time for us to look at these arrangements in a more logical and emphatical manner to allow commissioning parent(s) who are unable to bear their own child to have the opportunity to do so and to also legally protect the parties in the agreement in the event of any breach.
Conclusion
In all honesty, it is disheartening to note that the development of Malaysian law is not on par with the development of medical science in the nation. Medical science has made it easy for childless couples to use surrogacy methods to have a child. All they have to do is to seek medical advice from a medical practitioner who is a specialist in infertility.
On the other hand, the legislature is left far behind in enacting laws to regulate surrogacy arrangements in order to ensure that the rights of all the parties concerned, especially the child, are protected. This is a serious issue that the country may have to grapple in the coming years if the legislature does not make any attempt to enact a law to regulate surrogacy in Malaysia.
References:
[1] The issue of commercial surrogacy arose in the landmark case of baby Manji or “Baby M” (Japanese Baby), where a Japanese man’s sperm and an egg from an unknown donor were fertilised through IVF in Gujarat in July 2008. The Supreme Court held that commercial surrogacy is permissible in India and directed the legislature to pass a law to govern surrogacy arrangements in India.
[2] s.112 of the Evidence Act 1950 implies that should the surrogate mother change her mind and decide to keep the child for herself, she would be able to do so as the present situation would give her ample recognition and protection over her rights on the resulting child.
[3] Goh Siu Lin, 'The Potential Risks of Surrogacy Arrangements in Malaysia'.