ADULT CONSENT AND SPOUSAL CONSENT IN MALAYSIAN GESTATIONAL SURROGACY

Abstract

A lacuna exists in the legislation governing ‘assisted reproductive technologies’ (ART) and in particular surrogacy in Malaysia. Since its inception in the twentieth century, ART and surrogacy have unveiled various complex issues that undoubtedly demands comprehensive legal analysis and panacea. This paper aims to examine the legal issues specifically the requirements of adult and spousal consent in surrogacy as compared with conventional medical treatments. In the context of regulation, the paper limits its discussion to gestational surrogacy but makes no distinction between altruistic and commercial arrangements. This paper investigates consent in surrogacy through the perspectives of the individuals concerned in the whole process comprising pre-conception, conception-gestation and finally post-birth. Lessons are drawn from other jurisdictions in order to confer a legal framework suited to the Malaysian context. Informed consent as a legal instrument can serve as a basis to build upon the required legislation to better harness the benefits of surrogacy whilst preventing pitfalls through appropriate regulations. Due to rising demands and its exceptionality to confer the gift of life to an otherwise childless couple, surrogacy will remain an important feature of the Malaysian medical landscape. Hence, it is imperative that such precarious legal lacuna be redressed in order to better protect the rights of intended parents, the surrogate and most importantly the resulting child.