:::SURROGACY:::
Surrogacy is the practice whereby one woman carries a child for another
with the intention that the child should be handed over after birth. Agreements
may be reached between strangers, usually involving the payment of expenses, or
a woman may offer to act as a surrogate for a friend or relative.
The word ‘surrogate’ means ‘substitute’ and a surrogate mother is
someone who has a child for another woman.
The basic idea of surrogacy is that one woman (the surrogate) has a baby
for a husband and wife (or partners), where the wife is infertile.
The surrogate is artificially inseminated with the husband’s sperm. When
the baby is born, the surrogate mother gives it to the husband and wife (the
commissioning parents).
In this case, the child is genetically half-related to the husband and
wife but, there is also a genetic relationship with the surrogate mother and
this is known as a partial surrogacy.
There are three types of surrogacy generally : traditional , gestational
& donor.
1) In traditional/partial surrogacy, the woman carrying
the baby is the child’s genetic mother. The surrogate mother conceives after
she is artificially inseminated with the intended father’s sperm. She then
carries the baby to full maturity.
2) In gestational/full surrogacy, the surrogate mother
carries a donated embryo. The embryo is conceived through in vitro
fertilization or similar methods, of course, with the intended parents’ (you
and your husband) productive cells.
In both cases, when the baby comes to term, the surrogate mother
relinquishes all parental rights to the baby, and you can then adopt the child.
(3) In donor surrogacy, this kind of surrogacy may be
achieved when the commissioning parents obtain sperm and ovum from donors and
after fertilization is achieved, the resulting zygote is then implanted into
the uterus of surrogate mother.
The Legal Position Of Surrogacy In Malaysia
Under the civil laws, there are no legislations, which directly govern
either the act of surrogacy or the status of a child resulting from such an
arrangement. The relevant legislation which governs family matters amongst the
non-Muslim population in Malaysia is the Law Reform (Marriage and Divorce) Act
of 1976 whilst the Muslims are bound by the Shariah Law either those which had
been legislated or not.
But before looking into the provisions of the Law Reform (Marriage
and Divorce) Act, 1976, perhaps Section 112 of the Evidence Act 1950, which
applies to both Muslims and non-Muslims, could better elucidate or explain to
us the possible status of surrogacy in Malaysia. The section provides:
"The fact that any person who is born during the continuance of a
valid marriage between his mother and any man, or within 280 days after its
dissolution, the mother remaining unmarried shall be conclusive proof that he
is the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have been
begotten."
Fortunately, to date/until now, there has been no legal claims made for
surrogacy arrangements or any other orders pertaining to third party
involvement in the reproductive process in Malaysia. For many Malaysians third
party involvement in the reproductive process is not an acceptable form of
treatment for cases of infertility.
In a society where importance is placed on marital relationships
and on the traditional concepts of the family, Malaysians are very careful when
seeking the various forms of assisted reproductive treatment available to them.
Assisted reproductive techniques which help married couples obtain their dream
of having a child must still be restricted to that which involves sperm taken
from the husband and ovum taken from the wife, which is later to be carried by
the wife.
The Legal
Position of Surrogacy in the Western Countries
In the Human Fertilisation and Embryology Act 2008, section 54. To
obtain the order the following must be shown:
Either the sperm, or eggs, or both, came from the commissioning couple.
The commissioning couple must be married, civil partners, or living as
partners in an enduring family relationship.
The child must be living with the commissioning couple.
The surrogate must consent to the order.
Any parent of the child must consent to the order.
The court must be satisfied that no prohibited payment has been made,
unless authorized by the court.
The applicants have applied within six months of the birth.
The applicants are at least 18 years old.
Arguments For
And Against Surrogacy
In Favour / For
Surrogacy
- Helps children
couples;
- Encourages altruism,
for example, having a child for a friend;
- Women should be
allowed to do what they want with their own bodies(autonomy);
- Gives life to a child.
Against Surrogacy
- It is an unnatural
practice;
- It may be seen as
selling babies;
- It may be used for
convenience, for example, a woman who does not want the ‘bother’ of
pregnancy;
- It splits up the
mother and baby;
- Women should not sell
their bodies for money;
- Risks of pregnancy to
the surrogate mother;
- Harm caused if the
surrogate mother keeps the child;
- A child has a right to
be brought up by his own parents;
- It exploits women.
In the case of the West, spouse of William Stern and his wife Elizabeth
who had no children want the womb of a woman for that. The couple had hired
Mary Whitehide of $20 thousand dollars. Then the sperm into the uterus Stern
Mary. At the time of birth her baby, Mary's
maternal instinct to rebel, and he refused to surrender the baby to Stern and
his wife. Eventually the matter was brought before the courts that consider
this as a problem of social transactions.
Based on their agreement, the court decided the baby must be submitted
to the Stern family. When Stern and five police officers arrived at the home of
Mary, she acted with her baby escaped
through the back door. Eventually he was caught in another city, and the baby
is taken and submitted to the family of Mr. Stern.
Surrogacy Issue
According To Islamic Perspective
The decision of the 80th Muzakarah (Conference) of the Fatwa Committee
National Council of Islamic Religious Affairs Malaysia held on 1st- 3rd
February 2008 has discussed on the ruling obtaining the service of surrogate
mother to have a child. The Committee has decided that surrogacy is forbidden
in Islam even if the sperm and ovum were taken from a married couple as this
will bring genetic confusion to the unborn baby.
However, here are several clarification on this issue,
- First, consanguinity uncertainty is the greatest aspects of the birth of
a baby who was conceived by a surrogate mother. A surrogate mother of English
woman with white skin for example can give birth to a Negro baby who black skin
or otherwise.
- Second, development of the medical world in the field of fertility
treatment technology to assist in reproduction although many benefits but can
cause confusion appears and descendants of the family environment. Through the
services of a surrogate mother, the baby is conceived and born with a genetic
relationship or no blood relationship with the mother because the egg and sperm
are belonging to others.
- Third, so far, there is no obvious law that restrict the methods
of infertility treatment which use the services of a surrogate mother.
- Forth, in some European countries, demand rate of using the services of
a surrogate mother is riser and worried that this phenomenon will spread to
this country.
- Fifth, apart from the method of surrogate mothers, there is also a
medical method using the fluid of the bone marrow to help married couples who
are infertile, barren or failed to acquire children through natural
methods.
- Sixth, medical methods introduced by the West have gradually managed to
persuade the public that the mother of the baby's status does not necessarily
held by women who have pregnant and childbirth, as well as the status of the
father is not necessarily by the man who has contributed his seed or has
been a husband of a woman who is pregnant a baby of his flesh and blood.
It is important to keep the issue of surrogacy in perspective. Surrogacy
arrangements are rare. Most would be mothers want to give birth to their own
children and so surrogacy is likely to be a last resort for woman. Surrogacy
may be the only option for men who do not want to reproduce with a female
partner, but again, demand does not seem to be great. Nevertheless, despite its
rarity, surrogacy does raise some complicated legal questions, such as who
should be considered the child’s parents, and what should happen if the
arrangement break down. Banning surrogacy altogether is not a realistic option,
because partial surrogacy arrangements can be made without any third-party
involvement.
