Understanding Surrogacy Laws in Malaysia: What You Need To Know

As of 2025, the fertility rate of Malaysia has decreased by an approximate percentage of 12.3% out of 100,645 as compared to 114,764 during 2024. This means, this number of Malaysians are unable to conceive or give birth to an infant due to various reasons, including biological factors of each individual spouse and some due to old age. In this regard, wed-locked couples might seek to have their own infant delivered through another “mum”, with a well known method known as surrogacy.

Surrogacy Laws in Malaysia

What is surrogacy?

In a surrogacy, the intended parents who are unable to give birth to an infant would with the assistance of a medical practitioner create an embryo by fertilizing eggs from the intended mother or an egg donor with sperm from the intended father or a sperm donor on a third party mother known as the surrogate. Then, the surrogate mother who carries the embryo would prepare to give birth to an infant within the 40 weeks and if nothing occurs in the process, the intended parents should be granted the infant through adoption methods.

What is the problem with surrogacy in Malaysia?

However, an issue that could arise is where the biological mother starts to gain emotional attachment with the infant during the pregnancy period and wishes to retain the infant as her own, and of course, the intended parents would wish for the same too. In an alternative situation, if there exists a written agreement between the intended parents and the surrogate, would the surrogate mother be able to be entitled to the infant? This brings forward one single question, whether the intended parents or the biological parent (the mother) has a right to the infant.

What are the current existing Surrogacy Laws in Malaysia?

As of 2025, Malaysian legislation has yet to pass nor enact a statutory law that writes clearly on surrogacy. In other words, legal rights pertaining to surrogacy are in a grey area, and if a dispute arises then other statutory provisions such as the Evidence Act 1950 and the respective Adoption Acts would have to be relied on to determine the rights of the parents. Unfortunately, the existing laws in Malaysia would place a better position for the surrogate mother rather than the intended mothers.

First of all, the Section 112 of the Evidence Act presumes the definition of a legitimate

child, a child that is born through parents in a wedlock (legally married) is considered as legitimate child. Thus, if an infant was born under a surrogate mother that was legally married with a husband based on the Law Reform (Marriage and Divorce) Act 1976, then the infant is prima facie presumed and statutorily belongs to the surrogate mother. The intended mother doesn’t have a legal standing to claim for custody of the infant. On the other hand, if the infant was born out of a non-married surrogate mother, the current law would still favour the custody over the surrogate mother as the Malaysian jurisdiction in T v O [1993] 1 MLJ 168 ruled that the natural mother of an illegitimate child has the exclusive parental rights over the child.

In other words, if a dispute arises between a natural and a surrogate mother, the law would favour the surrogate mother with exclusive custody rights over the child, regardless of her marital status.

What about the written agreement made between the parties?

On the other hand, some institutions might be thinking that as long as there is an enforceable surrogacy agreement that classifies the role between the intended parents and the surrogate mother, then the mother is entitled to the infant. However, this is a very risky move because a surrogacy agreement would be classified as against public interest according to Section 24(e) of the Contract Act 1950. As such, where a surrogate mother decides to not hand over the infant to the intended parents upon giving birth, there is no legal remedy available for the intended parents to file for claims like breach of contract.

Can a couple perform surrogacy overseas in countries where they have legalised surrogacy?

While it is very much possible for intended parents to find a surrogate mother in another country, particularly those that had legalised commercial surrogacy like the United States of America (subject to state rules and regulations), Ukraine and Georgia that has a valid law on surrogacy would provide the mother with a greater assurance over the infant through legal and valid surrogacy agreements in the respective countries.

However, bringing the infant back into Malaysia would be another complex issue because a child born to foreign mothers (the surrogate mother) would not be granted Malaysian citizenship, bringing the infant back to Malaysia would also require a special

passport to be granted which will again be an issue of complexities.

What is the legal way to do it in Malaysia?

Due to the many blockades to surrogacy which exist in Malaysia, the current method in

which most parents do in Malaysia is to apply for adoption of the infant from the surrogate mother through either the Registration of Adoption Act 1952 at JPN (National Registration Department) before a registrar, or via an application for an adoption order

through the court with the Adoption Act 1952

However, the intended parents need to ensure that the surrogate mother is a well trusted individual that would hold on to her promise to consent to adoption. Otherwise, as mentioned above, there would be no legal remedy available for the intended parents either in statute or contract law if the surrogate changes her mind later. Additionally, the involved parties in a surrogacy arrangement had to ensure that there wasn’t any record of written agreement or payment made in return of adoption. As Section 6(e) of the Adoption Act prohibits payment or reward in consideration of adoption; and if this was this discovered the adoption could be considered void ab initio.

Conclusion

As shown in the paragraphs above, surrogacy in Malaysia is uncertain which creates risks of potential disputes between one question on the real mother. As far as sympathy should be given to the parents who are unable to conceive, the best way to have a child is to adopt one through legal methods which are in sync with the existing legal framework in Malaysia following the Adoption Act 1952 and the Registration of Adoption Act 1952.

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