SURROGACY ethics have been debated around the world. The use of a surrogate mother to have a child is still controversial. The legal system is also complicated because it differs in most countries. Several countries have banned it, while others have limited its scope.

Surrogacy is an arrangement, often supported by a legal agreement, where a woman agrees to bear a child for another person, who will hand the child to its parents after birth. The objective of surrogacy is mainly to fulfil the desire of the male partner of the infertile woman to have his own biological child and for women who do not want to undergo pregnancy due to various reasons such as health and career.

According to a report by the World Health Organization, about 80 million people worldwide have an infertility problem. Wherever the conditions or diseases lead to inability to gestate a pregnancy, third party reproduction could be considered as an option.

Moreover, some women are not prepared to undergo pregnancy due to their careers, especially in developed countries where they wait to get pregnant, and where the average first birth happens at middle age.

There are two types of surrogacies, namely full surrogacy and partial surrogacy. Full surrogacy, also known as gestational or host surrogacy, is when the intended mother or an egg donor provides the egg and the intended father or a sperm donor provides the sperm. The resulting embryo is transferred to the gestational carrier, who then has no genetic connection to the child.  

Partial surrogacy also known as straight or traditional surrogacy involves the surrogate’s egg being fertilised with the sperm of the intended father.

Some surrogacy issues that arise are legal issues in religion, morals and the right of inheritance. For example, religious authorities have issued a fatwa making surrogacy haram for Muslims.

This is because in Islam, it is not permissible for a married male’s sperm to be implanted into the egg of another woman as he is not married to the woman. The child would then be considered as his child born out of wedlock.

Similarly, the Christian view of surrogacy is that any technique used to achieve conception using the reproductive cells of the two spouses joined in marriage is prohibited when it separates procreation from the marital act in its unitive significance.

Another issue is inheritance. A child born by way of a gestational surrogacy would not be able to inherit his intended parents’ property when they pass away. This is because section 3 of the Inheritance (Family Provision) Act 1971 excludes illegitimate children from inheriting their parents’ property.

Then there is the issue of morality, where there are situations when the surrogate mother refuses to hand the child over after giving birth to it. The question arises as to whether the surrogate can claim that she is the guardian and has a right to custody and this has to be decided by the court.

Regardless of the criticisms, surrogacy may become the only option for women who are unable to conceive for reasons such as careers or infertility. Although advances in assisted reproductive techniques have helped many infertile couples to realise their dreams, large numbers of couples currently have no alternative method other than surrogacy.

Whether surrogacy is allowed under medical law and ethics depends on the country, because some allow it and some don’t. In Malaysia, surrogacy is believed to be increasingly popular as a way for infertile couples to have a baby.

However, there are no reliable statistics about surrogacy in Malaysia as they are private arrangements. There are no provisions addressing the use of surrogates to have a baby.

However, surrogacy laws have already been drafted in other countries, such as Australia and India, in order to see if these laws adequately protect the rights of children born as a result of a surrogacy.

For example, Australia passed the Surrogacy Act 2010, which is aimed at enabling the various parties to a surrogacy arrangement to understand its nature and implications.

In short, the question of whether surrogacy is a moral act or not needs to be seen in context. There are many countries that prohibit surrogacy but there are also countries that recognise it. What is important is that even if the country allows it, the act is not considered legally unethical, even if morally it is seen as such. – December 7, 2021.

*Al-Ieslah Badrul Hisham and Nabeel Mahdi Althabawi read The Malaysian Insight.