Legal Analysis |
Is Surrogacy Really Allowed in Malaysia?

Many couples facing fertility difficulties may consider surrogacy as an option. However, in Malaysia, surrogacy remains a legal grey area.

In simple terms, surrogacy refers to an arrangement where another person carries and gives birth to a child on behalf of the intended parents. It generally falls into two categories: traditional surrogacy (where the surrogate is genetically related to the child) and gestational surrogacy (where the surrogate has no genetic relationship with the child). However, Malaysia currently does not have any specific law that expressly recognises or regulates surrogacy. Under existing legal principles, “the woman who gives birth to the child is regarded as the legal mother.” This means that the surrogate mother is recognised as the child’s lawful mother, while the intended parents may not enjoy legal protection of their parental status.

Even if a surrogacy agreement is signed, it may be regarded as unenforceable on the grounds of public policy. Should any dispute arise, the intended parents may face significant difficulties in enforcing their rights through legal proceedings. From a medical perspective, healthcare professionals are also generally not permitted to participate in surrogacy arrangements.

While some individuals choose to pursue surrogacy overseas (for example, in the United States), the process is often costly. In addition, once the child returns to Malaysia, complex issues relating to citizenship and legal status may still arise.

In summary, there is currently no clear legal framework governing surrogacy in Malaysia. Anyone considering surrogacy should carefully evaluate the legal risks and uncertainties involved before making any decision.