Understanding Surrogacy laws in Malaysia

What are the Surrogacy laws in Malaysia?

Surrogacy involves intended parents who cannot conceive working with a medical practitioner to create an embryo. This process typically includes fertilizing eggs from the intended mother or an egg donor with sperm from the intended father or a sperm donor. The embryo is then implanted in a surrogate mother, who carries the pregnancy to term. After approximately 40 weeks, if everything goes smoothly, the intended parents can adopt the child.

Challenges of Surrogacy in Malaysia

One significant challenge arises when the surrogate mother develops an emotional attachment to the infant during pregnancy. She may wish to keep the child, while the intended parents naturally desire the same. This situation raises a critical question: who has the legal right to the child—the intended parents or the biological mother?

Current Surrogacy laws

As of 2025, Malaysian legislation has not enacted clear laws regarding surrogacy. This legal ambiguity places surrogacy rights in a grey area. In the event of a dispute, existing statutory provisions, such as the Evidence Act 1950 and various Adoption Acts, must be referenced to determine parental rights. Unfortunately, current laws tend to favor the surrogate mother over the intended parents.

Surrogacy laws in Malaysia

Legal Definitions and Rights of Surrogacy laws in Malaysia

Section 112 of the Evidence Act defines a legitimate child as one born to legally married parents. If a child is born to a married surrogate, the law presumes that the child belongs to her. The intended mother lacks legal standing to claim custody. Conversely, if the surrogate is unmarried, the law still favors her custody rights, as established in the Malaysian case T v O [1993] 1 MLJ 168. This ruling indicates that the natural mother of an illegitimate child holds exclusive parental rights, regardless of marital status.

Written Agreements and Their Implications

Some may believe that a written surrogacy agreement can secure the intended parents' rights to the child. However, this approach is fraught with risks. According to Section 24(e) of the Contract Act 1950, such agreements may be deemed against public interest. If a surrogate chooses not to relinquish the child, intended parents have no legal recourse for breach of contract.

Surrogacy Abroad: A Possible Solution?

Intended parents may seek surrogacy in countries where it is legal, such as the United States, Ukraine, or Georgia. These countries offer legal frameworks that protect the rights of intended parents through valid surrogacy agreements. However, bringing the child back to Malaysia presents its own challenges. Children born to foreign surrogates do not automatically receive Malaysian citizenship. Additionally, obtaining a special passport for the child can complicate matters further.

Surrogacy laws in Malaysia: Navigation

Given the complexities surrounding Surrogacy laws in Malaysia, many parents opt for adoption as a more straightforward solution. They can apply for adoption through the Registration of Adoption Act 1952 at the National Registration Department (JPN) or seek an adoption order through the courts under the Adoption Act 1952.

It is crucial for intended parents to ensure that the surrogate is a trustworthy individual who will honor her commitment to consent to the adoption. If the surrogate changes her mind, intended parents have no legal remedy available under current laws. Additionally, any written agreements or payments made in exchange for adoption could render the adoption void, as Section 6(e) of the Adoption Act prohibits such arrangements.

Conclusion

In summary, Surrogacy laws in Malaysia remains a complex and uncertain process, often leading to disputes regarding parental rights. While it is understandable that couples facing fertility challenges may seek alternative routes to parenthood, the legal landscape suggests that adoption may be the safest and most reliable method. By following the legal frameworks established in the Adoption Act 1952 and the Registration of Adoption Act 1952, intended parents can navigate this journey with greater clarity and security.

Should you have any queries regarding surrogacy or adoption in Malaysia, please do not hesitate to contact us via WhatsApp at +6012 5325660 or email info@piyalawchambers.com.