Surrogate Motherhood, An Economic Choice? An Analysis of Commercial Surrogacy And Its Position In Malaysia

In line with calls for women's empowerment and the right to parenthood, the time has come for Malaysia to embark on a new horizon of the medical industry and legalise commercial surrogacy. As long as we have the guidance of an efficient legal framework and learn from countries which legalise surrogacy, it may be beneficial to both intended parents and surrogate mothers alike.

I. INTRODUCTION
 
Pregnancy and birth-giving are considered the most sensitive and sacred aspects of humanity. Therefore, it is understandable for some to consider the practice of renting a womb as blasphemous. It is certainly absurd for women to purposely put their body through the strain of pregnancy only to give the baby away. Then again, that is exactly what commercial surrogacy is, and it is a highly profitable industry. Commercial surrogacy is, or at least it was, a juggernaut in the global economy, by grossing between 500 million US dollars and 2 billion dollars in India alone.[1] However, in the last decade such practice has been banned by several countries such as the United Kingdom, Canada, and even in India, where it had thrived the most. This begs the question, what is so bad about commercial surrogacy? After all, commercial surrogacy is an attractive alternative for infertile couples while offering financial opportunity to women who are willing to become surrogate mothers. Hence, the aim of this article is twofold: first, to show that the countries which banned commercial surrogacy were merely unable to regulate it; and second, that commercial surrogacy, with an efficient legal framework, can be beneficial to infertile couples and surrogate mothers alike.

A. The Position in Malaysia

In Malaysia, there is no specific law that governs surrogacy arrangements. Therefore, there is a lacuna in the law regarding the legality of surrogacy arrangements. Notwithstanding this, the Malaysian Medical Council has stated that surrogacy is ‘not acceptable to most of the major religions in this country’ and thus, could lead to many legal predicaments for the individuals involved.[2]
 
B. Scope of Article

The scope of this article is to address the relevant legal and ethical issues relating to commercial surrogacy. Affirming the stance that such industry is useful with proper regulation. However, this article only focuses on commercial surrogacy in a domestic setting and not within the global scale, thus, not addressing issues of nationality and its effect on the global market.
 
II. DIFFERENT TYPES OF SURROGACY ARRANGEMENTS
 
A. Gestational Surrogacy

In general, a surrogacy arrangement means a woman agrees to become pregnant and to bear and deliver a child to the ‘commissioning parents’ or ‘intended parents.’ A gestational surrogacy arrangement involves the impregnation of a surrogate mother through artificial reproduction technologies (ART)[3] where the surrogate mother is not genetically related to the infant she bears. Most contemporary surrogacy arrangements are gestational. Here, both intended parents could be the genetic parents to the infant as the intended mother donates her eggs with the intended father’s sperm. However, in some cases, donor sperm is used.[4]
 
B. Traditional Surrogacy

In traditional surrogacy, the sperm of the intended father is artificially inseminated into the egg of the surrogate mother. Here, the baby is biologically related to the surrogate mother and intended father. Granted that it is the simplest form of surrogacy but it takes a heavier psychological toll. The surrogate mother must hand over her biological child and the intended mother must accept a child that her husband has fathered with another woman.[5]
 
C. Altruistic Surrogacy

An altruistic surrogacy arrangement is when a surrogate mother is repaid only for the expenses correlated to the pregnancy and birth of the child and not for the surrogacy itself, either in traditional or gestational surrogacy arrangements. It often happens between relatives or close friends.[6]  In essence, altruistic surrogacy is like commercial surrogacy’s unproblematic cousin as it does not possess the issues present in commercial surrogacy. However, arguably, altruistic surrogacy alone may not meet the demand for such services as no everyone has a person who is willing to bear and birth their child for them without some sort of compensation, not even their friends or family.[7]
 
D. Commercial Surrogacy

A commercial surrogacy arrangement is when the surrogate mother receives compensation for bearing the intended parents’ child.[8] Essentially, a paid service for renting the womb of a surrogate. The contract binds both parties as in any other commercial agreement, but the sensitive and delicate subject matter creates a whole new dimension of what is legally necessary in terms of this contract.

III. ARGUMENTS FOR COMMERCIAL SURROGACY
 
A. Empowerment of Surrogate Mothers

Commercial surrogacy is not just a multimillion-dollar industry, but it also paves the way to women’s empowerment. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was ratified in Malaysia in 1995[9] echoes in Article 3, that it is ‘to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.’ The advancement of women ought to include the right to enter into commercial surrogacy arrangements.

Studies on the experiences of surrogate mothers indicated that they often felt pride in surrogacy work and are able to self-identify as a member of a special community, despite a sense of loss when the relationship with the intended parents diminished.[10] In most instances, surrogacy is a choice made by surrogates as they can claim body sovereignty and express free will this way. Hence, banning surrogacy is arguably against women's empowerment as it would suggest that women cannot exercise free will on what they consider beneficial for their own body.

Furthermore, to resonate with the judgement in the United States Supreme Court case of Johnson v Calvert, the argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intended parents gives nuances to the misogynistic perspective that prevented women from receiving equal rights and professional status that has lasted for centuries. The Supreme Court emphasized that "To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes."[11]

1. The Autonomy in Economic Choice

Every person has an undeniable right to personal autonomy, and respect for autonomy implies respect for procreative autonomy.[12] According to Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), signatories must provide the right to health, which includes the right to sexual and reproductive freedom as well as the freedom to decide the medical treatment administered to oneself.[13] Applying this conjunctively with the right to work as entrenched in Articles 6 and 7 of the ICESCR, this includes the right to freely choose to work as a surrogate mother. Besides, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to privacy, [14]  which has been interpreted to include aspects of reproductive autonomy.[15] Therefore, to disallow commercial surrogacy in Malaysia would be a hindrance to both the advancement of women’s rights and the aforementioned Covenants, especially CEDAW, which was ratified in Malaysia.

B. Right to Parent

Some people dream of having the perfect career, world domination or a full house in a game of poker. For others, it is just a full house. Parenthood has been described by many as a fulfilling and satisfying part in their lives with research supporting the notion that parents are happier than individuals without children.[16] While it is difficult, the responsibilities of raising a child have been described in the case of Kealey v Berezowsk that ‘successfully meeting those responsibilities also brings innumerable benefits in the form of personal satisfaction and happiness.’[17] However, even the Malaysian Medical Council acknowledges that some are not  lucky as they are unable to conceive, which can cause significant personal anguish and disruption of family life, affecting both men and women equally.[18]

Many individuals are deprived of their ‘right to parent’ or ‘reproductive rights’, for this right may not have been codified in any international agreements or human rights instruments. However, Article 16.1 of the Universal Declaration of Human Rights (UDHR)[19] and Article 23 of the International Covenant on Civil and Political Rights (ICCPR) state that ‘adult men and women have the right to marry and find a family’, for which it refers to parenthood.[20] Nevertheless, this provision does not specify whether it prohibits parenthood through adoption or surrogacy arrangements. In the twenty-first century, the way a family is formed creates new challenges in defining rights. While the term ‘family’ is not expressly defined, the UDHR does identify that childhood includes the entitlement to special care and assistance,[21] and motherhood is also to be protected.[22] Hence, there is no specified limitation to acquire family in a natural way.

With that, what commercial surrogacy does is to foster new opportunities for infertile couples to exercise their right to parent and form a family. Allowing them to achieve new forms of happiness and personal satisfaction. One might doubt the necessity of surrogacy and proposes that adoption is already a sufficient solution for infertility. However, ‘the whole point of the surrogacy procedure is that it operates as an alternative to adoption and circumvents the long queues waiting for healthy babies.’[23] Furthermore, a significant consideration for the intended parents is the intention to foster a genetic link with the infant that they are going to raise.[24] After all, blood is thicker than water, and to ensure that one’s bloodline is passed down can be considered to be the most primal instinct in any creature. Hence, it is clear that the right to parent ought to extend to commercial surrogacy, as a means to build a family as part of the pursuit of happiness.
 
1. Strain on the right to Parent: a case study on the United Kingdom 
                                          
The United Kingdom is an example of a country that banned the practice of commercial surrogacy but allows altruistic surrogacy. This has resulted in a poor legislative model of surrogacy. To understand their current legal status, the chronology of the law must be examined. It all started with Britain’s first commercial global surrogate baby, Baby Cotton.[25] This case involved three countries: Sweden, the USA, and the United Kingdom. Here, Kim Cotton, a British citizen was paid £6,500 to give birth to an infant for a Swedish couple living in the USA with the help of a surrogacy clinic in England.[26] The local authorities intervened by making the baby the subject of a ‘place of safety’ order  and enquired the intended parents on their parental integrity.[27] Eventually, the Swedish intended parents were granted guardianship of the baby and took her back to the USA as it was for the best interest of the child.[28] The ‘baby-for-cash deal’ caused controversy within the British public leading to a state-wide ban on commercial surrogacy arrangements.[29]

Why did the UK prohibit commercial surrogacy? It is due to the issues of exploitation, and trafficking of women  and children.[30] The Warnock Committee highlighted ‘the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case.’[31] The Committee also concluded that surrogacy for convenience alone was ethically unacceptable[32] and recommended to criminalise commercial surrogacy.[33]

Hence, the Surrogacy Arrangements Act 1985 (SAA 1985) was enacted.[34] Its provisions were based on the recommendations of the Committee of Inquiry into Human Fertilisation and Embryology in 1984.[35] S.2(1) of the Act makes it a criminal offense to negotiate a surrogacy arrangement commercially.[36] In practice, this means that reputable organisations like Childlesness Overcome Through Surrogacy (COTS), Surrogacy UK, and Brilliant Beginnings, which assist the intended parents and surrogate mothers to be in touch with each other, must do so on a non-profit basis.[37] In addition, it is also an offense to advertise a willingness to participate in or facilitate surrogacy arrangements.[38] Thus, the effect is if a couple wishes to conceive through surrogacy, they must find a surrogate mother privately without advertisement.[39]

However, the 1985 Act was criticised as an ill-considered and largely irrelevant panic measure because the government rushed to pass the law after public dissatisfaction.[40] Further, both the 1985 Act and the Warnock Report were silent on the welfare of the child.[41] Five years after the enactment of the SAA 1985, the Human Fertilisation and Embryology Act 1990 addressed the issue of legal parental status for the child conceived by assisted reproduction methods.[42] This statute introduced parental orders that would enable the transfer of legal parenthood from the surrogate mother (and her husband if any) to the intended parents.[43]

Then, the SAA 1985 was amended to the SAA 1990. The Human Fertilisation and Embryology Act 2008 (HFEA 2008) made changes to the 1990 Act that extended the provisions on legal parenthood to those who found a family through assisted conception.[44] In England, a surrogate mother maintains the legal right for the child as she is recognised as the legal mother even if they are genetically unrelated. This is provided in S.33 of the HFEA 2008 and S.50(9) of the British Nationality Act 1981 as amended. If the surrogate is married, the legal parents are the surrogate mother and her husband, hence neither of the intended parents has any legal relationship with the child while being the biological parents.[45]

To worsen the situation, the 1990 Act inserted a new provision, S.1A that makes surrogacy arrangements unenforceable.[46] Intended parents’ only recourse is to make an application to the English court for the residence of the child, which the courts will decide based on the child's best interests.[47] The law hardly protects the intended parents as it shows that the law heavily favours the surrogate mother. For instance, the surrogate is the legal mother unless a parental order is issued and the surrogate can refuse to return the child.[48] This can make it difficult for the intended parents to find a reliable surrogate mother who will not hesitate to hand the baby to its intended parents.

Hence, the UK only allows surrogacy arrangements where the surrogate mother is not compensated, unless for reasonable expenses. The Surrogacy Arrangements Act outlines strict criteria for surrogacy arrangements. These restrictions led couples to seek commercial surrogacy services abroad.[49] This shows that the UK’s legal framework on surrogacy has greatly obstructed the procreative rights of her people, but did not diminish their need for it, resulting in medical tourism to other countries. Learning from this, Malaysia is better off forming a legal framework for commercial surrogacy rather than to deprive her citizens of the right to procreate.
 
IV. OBSTACLES IN LEGALISING COMMERCIAL SURROGACY IN MALAYSIA
 
Although there are many benefits to commercial surrogacy, opening this door must be done with caution. There are several obstacles that ought to be addressed in legalising commercial surrogacy. However, not every single issue regarding commercial surrogacy will be discussed in this article. Nonetheless, the most domestically relevant legal and ethical issues to commercial surrogacy will be deliberated.
 
A. Exploitation of the Surrogate

Now, flipping the coin on empowerment through commercial surrogacy, the issue of exploitation on surrogate mothers in commercial surrogacy arrangements must be addressed. It is vital to note that it is necessary to take care of the surrogate mothers as they are ‘the most economically and emotionally vulnerable party’ in an arrangement for commercial surrogacy.[50] Exploitation does not necessarily warrant the legal prohibition of a transaction, but if this transaction causes harm or unreasonable risk of harm, this transaction may be prohibited.[51] In a commercial surrogacy, it is possible for these women to be taken advantage of due to their circumstances. The arrangement brings harm to these vulnerable women, in terms of their health and their freedom to make an informed decision. This is because exploitation stems from a lack of informed consent, as it was argued that women who work as surrogate mothers in this commercial reproductive industry lack proper understanding of their rights regarding their own health and well-being. Although there is no conclusive research evidence that women are unaware of the risks of surrogacy, this concern is valid and must be evaluated carefully, as it is dismissive to make such a negative assumption about the abilities of women in poverty.[52]

In the commercial surrogacy industry, the consent of surrogate mothers may be compromised due to financial distress, as the poorest and vulnerable women are  likeliest to fall prey to exploitation. This differs greatly from altruistic surrogacy agreements, where no financial incentive is present.[53] Evidently, in Ukraine, a surrogate mother earns eight times more than the average yearly income.[54] This creates a good opportunity for these women. However, reports show that these women are mistreated and would not even be compensated if they had a miscarriage.[55] These women are usually trapped by their own contracts and did not know what they were getting into. In addition, in countries like India or Thailand, there are limited job options for them that are safe and sufficiently paid.[56] Thus, economic pressure causes the exploitation of women to occur in commercial surrogacy arrangements. [57]

1. Uneducated, Unprotected and Vulnerable: A Case Study on India

In 2002, India legalised all types of surrogacy including commercial surrogacy until commercial surrogacy was banned in November 2015.[58] A Study by the United Nations shows that India had a prevalent medical tourism market for surrogacy, contributed up to $400 million in 2012 .[59] The Indian Council of Medical Research (ICMR) submitted a draft of the National Guidelines for Accreditation, Supervision and Regulations of assisted reproductive technologies (ART) clinic and was approved in 2005.[60] However, the Guidelines were said to lack legislative enforcement. Hence, the largely unregulated nature of global surrogacy in India makes it impossible to know the exact number of transactions taking place and the actual number of resulting births.[61]

Moreover, without mandatory government regulation, surrogacy clinics have no incentive to adequately protect the rights and interests of gestational surrogates. It also allows such interests to be violated for capital gain. This is because most surrogacy clinics allow the free market to determine the surrogacy process, including conditions by which surrogate mothers must abide to without regard to their interest.[62] In India, many women who opt into surrogacy arrangements are unable to read, have limited education, and are ill-informed on how surrogacy itself works.[63] In addition, offering high reward to gestate a foetus is argued to compromise the ability of these impoverished women to give informed consent when agreeing to the procedure. The rights of free and informed consent are impossible to be applied in social circumstances such as extreme poverty and  limited education.[64]

With that, India drafted the Surrogacy (Regulation) Bill 2016.[65] The Bill prohibited commercial surrogacy and only allowed altruistic surrogacy under strict circumstances.[66] Providing that altruistic surrogacy could only be done by a ‘close female relative’ who is ‘ever married’ between the ages of 25-35, notwithstanding the vague definition of ‘close relative’.[67] The 2016 Bill lapsed and was re-introduced in 2019 through the Surrogacy (regulation) Bill 2019. As of March 2020, it was reported that the Bill has been approved by the Cabinet with a few alterations and is waiting to be approved by the President.[68]

In summary, it is clear that India’s booming commercial surrogacy industry was merely the result of a floodgate of unregulated commercial surrogacy arrangements and the government was merely attempting to correct its mistake. However, as analysed in the case study for Thailand, the problem is not inherent in commercial surrogacy but in its regulations. If India had placed legal enforcement in the ICMR’s Guidelines or guidelines regarding informed consent, perhaps the government could have avoided the exploitation of surrogate mothers from the very beginning.

2. Could Malaysia combat exploitation?

It is possible! First, we argue that Malaysia is less prone to the exploitation of women as opposed to impoverished countries like India. Maternal healthcare in Malaysia is safer than in India as Malaysia’s maternal mortality rate in 2017 was 29 per 100,000 pregnancies,[69] while in India’s was 122 as of 2016.[70] This indicates that Malaysia would be much more proficient in protecting surrogate mothers. Second, women in Malaysia are more well-informed and well-educated, with 28% pursuing higher education, a rate that’s higher than men.[71] Third, since lack of informed consent is a significant factor of exploitation, we suggest that informed consent guidelines for surrogacy arrangements be implemented and enforced in fertility clinics, ensuring that surrogate mothers make informed choices. Such consent must be explicitly given, both orally and in writing, also with an impartial counsellor overseeing the process.[72] Finally, applying a suitability screening of intended parents, checking for criminal background and child abuse registry searches must be done to ensure the parents’ credibility and integrity. [73] Hence, although exploitation must be dealt with caution, it can definitely be dealt with. Malaysia should be up for the challenge as long as the proper mechanisms are in place.

B. Religious Issues/ Islam

Next is the issue unique to Malaysia, the position of commercial surrogacy in Shariah Law. While several religions prohibit the practice of surrogacy, Malaysia is specifically governed by Shariah law in terms of Muslim family matters. Hence, the issue lies in the Islamic perspective of surrogacy arrangements. In Islam, there are different opinions on this issue.
 
 First, the Mufti of the Malaysian Federal Territory opined that all kinds of surrogacy are prohibited.  This prohibition is due to the concern that the lineage and parental custody of the child will be distorted, causing both legal and religious problems.[74] Additionally, a man impregnating a woman who is not his lawful wife goes against the verses of the al-Quran.[75] The second opinion is that traditional surrogacy is prohibited but gestational surrogacy is allowed, because it is possible that both the husband and wife are the biological parents of the infant with only the surrogate mother’s womb being utilised. The Malaysian National Council of Islamic Religious Affairs adopts this view, as they opine that gestational surrogacy is permissible as long as the sperm and egg belong to a married couple.[76] Therefore, there is a discrepancy between different Shariah Law positions. Nonetheless, commercial surrogacy could still be legalised for non-Muslims even if it were to be forbidden on religious grounds.

C. Poor Regulation and Enforcement: A case study on Thailand

Exploitation of women and failures to protect the best interest of the child are not the inherent products of commercial surrogacy, but the product of poor regulations. This is clearly observed in the development of commercial surrogacy in Thailand. Until 2015, Thailand did not explicitly ban the practice of commercial surrogacy, but it became a profitable and heavily unregulated business in Thailand. This was because certain regulations on doctors’ ability to perform commercial surrogacy procedures were rarely enforced. Additionally, no regulations were established for either surrogacy agencies or surrogate mother.[77] The Medical Council of Thailand (2001) introduced professional guidelines in 1997 and 2001 for assisted reproductive technologies including surrogacy, but these guidelines had no legislative force, nor was there much incentive to regulate such a highly lucrative industry.[78]

1. The Baby Gammy Case

Following this, the devastating effect of poor regulation on commercial surrogacy has left dark stains on Thailand’s history. First, the Baby Gammy case, an Australian couple paid a young Thai woman to carry twins. However, the couple only brought home the healthy girl from the twin, leaving Gammy, the twin brother with Down's syndrome in Thailand with the surrogate mother. This story caused public outcry and allegations that the couple abandoned their son, which they denied. According to the intended parents, they discovered that Gammy would be born with Down's syndrome late into the pregnancy. The couple admitted that they would have probably terminated the embryo had it been safe at that stage of the pregnancy, denying purposely leaving the baby behind.[79] This is a perfect example of poor execution of a surrogacy arrangement. There is a poor relationship between the surrogate and the intended parents, and the intended parents were not updated with the pregnancy. The result that the surrogate mother was left with the baby could have been avoided if the surrogacy contract had been mandated to include the provision of routine updates to the intended parents, as well as a necessity to establish a bond between the parties. 

2. Baby-Factory Case

In 2014, the Thai police discovered that a twenty-four-year-old Japanese man Mistutoki Shigeta had ‘fathered at least sixteen babies’ through eleven Thai surrogate mothers. Subsequently, Shigeta was investigated for conducting a human-trafficking operation due to this discovery. Unfortunately, Shigeta was awarded sole custody of the babies after the Thai surrogate mothers forfeited their rights, exemplifying the lenient and careless laws regarding surrogacy in Thailand. Nonetheless, the silver-lining is that this case was led to the banning of commercial surrogacy for foreigners, tightening the laws on commercial surrogacy.[80]

These incidents and resulting public outrage made it abundantly clear that Thailand needed better law enforcement and regulations regarding commercial surrogacy. This led to Thailand's crackdown on commercial surrogacy, primarily through the Draft Law which has actually existed since 2004. The Draft Law was renewed in 2015 as an effort to make the Thai draft surrogacy law official.[81] However, no laws are currently being enacted.[82] This case study shows that there must be proper regulations implemented for all the parties involved, particularly in providing the intended parents significant updates on the pregnancy.

D. Parental Rights: A Case Study on the United States

Parental rights are significant in any surrogacy arrangement. It must be considered if Malaysia were to adopt a legal framework for approving surrogacy including commercial surrogacy. The assignment of parental rights and responsibilities fundamentally effects the welfare of a minor child.[83] This is why there must be mechanisms that clearly set out the assignment of proper parental rights to ensure the best interest of all the parties. It is pertinent to note that in many of the case studies presented before, the issue of who would take custody of the new-born was the crux of those incidents.[84] In the United States (US), although surrogacy regulations vary from state to state,[85] there is a clear legal framework regarding parental rights.

In the US, the Uniform Parentage Act of 1973 (UPA 1973) [86] has been applied to commercial surrogacy cases by providing a ‘comprehensive scheme for judicial  determination of paternity.’[87] Although this Act originated as Californian law, this act has been adopted in 11 other states.[88] A significant provision is S.7633 of the UPA 1973 that empowers Courts to give pre-birth parentage orders, which is a court-ordered judgment that assigns the legal parentship to the intended parents in a surrogacy arrangement. Pre-birth parentage orders affirm the legal parentship of the intended parents to the world and they should be treated as such. [89] This is important as establishing the parental rights through a pre-birth court order allows all parties to know where they stand before the surrogacy arrangement even begins, and ensures no conflicts of law when the child is born.

In addition, looking at the case law, the 1993 landmark case of Johnson v Calvert and its theory of parentage by intention has become the foundation of a large-scale surrogacy industry in California.[90] The Supreme Court held

‘a woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own.’[91]

This shows that the Court was heavily in favour of the intended parents being entitled to custody of the child. 

However, a year later in Re Marriage of Moschetta,[92] the Supreme Court in California made a distinction regarding traditional surrogacy. The court held that the surrogate mother is also the biological mother, she should be entitled custody of the baby because ‘biology is destiny’. Hence, couples who opt for traditional surrogacy have no assurance that their intentions will be honoured in the court of law.  That being said, it should be noted that the Supreme Court decision was given in the primary consideration of the child’s best interest. Hence any disputes in custody in a traditional surrogacy arrangement is still decided on a case-by-case basis with the child’s best interest as the primary consideration. In conclusion, the US model for parental rights is sufficient to protect the welfare of the child, and is highly recommended to this extent.

V. DISCUSSION — THE LEGAL FRAMEWORK

Applying every issue that was discussed earlier, we propose a simple legal framework of procedures to legalise commercial surrogacy in Malaysia:

a. Intended parents must be a Malaysian married couple.
b. The surrogate mother must be a Malaysian citizen.
c. Guidelines for fertility clinics, especially for informed consent of surrogate. 
d. Suitability screening of intended parents.
e. The intended parents must receive frequent updates regarding the pregnancy from the fertility clinic.
f. A pre-birth parentage order must be made by the court for every commercial surrogacy arrangement.

VI. CONCLUSION

In summary, it is not a farfetched idea for commercial surrogacy to be available in Malaysia after all. This practice is not just another cash-grab for the government, fertility clinics, and surrogate mothers,  but an exercise of a deep-rooted principle of women’s empowerment and the right to parenthood. Although we must tread lightly if we were to legalise commercial surrogacy, as long as we take lessons from the issues that were addressed and learn from all the aforementioned countries, there is no doubt that Malaysia can embark on a new horizon in the medical industry.

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Written by Badrul Alias, Nuralia Dayana Binti Supiyan, 'Awatif Faqihah Binti Mohd Nazri, Fatin Nurwinnie, and Yang Solehah binti Abd Aziz.

Edited by Nur Zarisa. 

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes: 

[1] Krause, F, and Boldt, J, Care in Healthcare. SpringerLink. 1 May, 2020 <https://link.springer.com/book/10.1007%2F978-3-319-61291-1#about>.

[2] Malaysia, Malaysian Medical Council, Assisted Reproduction. Guidelines of the Malaysian Medical Council. 14 November 2006, 4 May 2020 <http://mmc.moh.gov.my/images/contents/ethics/Assisted-Reproduction.pdf>. 

[3] *In the form of in vitro fertilization (IVF); embryos are created with gametes provided by the intended parent/s and transferred to the uterus of the surrogate in order to become pregnant and ultimately deliver an infant.

[4] Bromfield, N.F and Rotabi, K.S, “Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations”, Global Social Welfare 1 (2014): 123–135. 30 Apr. 2020 <https://doi.org/10.1007/s40609-014-0019-4>.

[5] Bhatia, K, et al. (2009). "Surrogate pregnancy: an essential guide for clinicians". The Obstetrician & Gynaecologist. 11 (2009): 49–54. 1 May 2020 <doi:10.1576/toag.11.1.49.27468. ISSN 1744-4667>.

[6] See footnote 4. 

[7] Smolin, D M, “The One Hundred Thousand Dollar Baby: The Ideological Roots of A New American Export” Cumberland Law Review. 1 (2019): 4 May 2020 < https://advance-lexis-com.ezproxy.um.edu.my/api/permalink/34b4cfb3-0b4b-4675-9cbd-20daf6ba10bf/?context=1522468>.

[8] Ramskold, L A H, and Posner, M P, “Commercial Surrogacy: How Provisions Of Monetary Remuneration And Powers Of International Law Can Prevent Exploitation Of Gestational Surrogates” Journal of Medical Ethics. 39 (2013):  397-402. 5 May 2020 < https://www.jstor.org/stable/43282765>.

[9] Attorney General’s Chambers of Malaysia. <http://www.agc.gov.my/agcportal/index.php?r=portal2/left&menu_id=L2YvK3oycE5FSlg1NGNmTGFJdlNIdz09> Site accessed on 1 May 2020. 

[10] Bromfiel, N F, “Surrogacy Has Been One of The Most Rewarding Experiences In My Life”, International Journal of Feminist Approaches to Bioethics. 9 (2016): 192-217. 5 May 2020 <https://www.jstor.org/stable/10.2307/90011864>.

[11] Johnson v. Calvert, 5 Cal. 4th 84. 

[12] See footnote 8; "Should Compensated Surrogacy Be Permitted or Prohibited?" Cornell Law Faculty Publications (2017): 1551. 6 May 2020 <http://scholarship.law.cornell.edu/facpub/1551>.
 
[13] International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, 993 U.N.T.S. 

[14] International Covenant on Civil and Political Rights art. 23(2), adopted Dec. 16, 1966, 999 U.N.T.S. 171

[15] Karen Noelia Llantoy Huamán v. Peru, Communication No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003 (2005).

[16] Aassve, A, et al., “Institutional Change, Happiness, and Fertility” European Sociological Review 31 (2015): 749–765. 3 May 2020 <doi: 10.1093/esr/jcv073>.

[17] Kealey v Berezowski (1996) 136 DLR (4th) 708.

[18] See footnote 2. 

[19] Universal Declaration of Human Rights, Art 16.1

[20] UN Human Rights Committee (HRC), CCPR General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990, <https://www.refworld.org/docid/45139bd74.html> Site accessed on 14 May 2020.

[21] See footnote 19, Art 25.2.

[22] See footnote 4. 

[23] Davies, Iwan. "Contracts to Bear Children." Journal of Medical Ethics 11 (1985): 61-65. 1 May 2020. <www.jstor.org/stable/27716353>.

[24] See footnote 23.

[25] Re C (A Minor) 1985

[26] Brahams, D. “The Hasty British Ban on Commercial Surrogacy.” The Hastings Center Report 17 (1987): 16–19. 1 May 2020 <www.jstor.org/stable/3562435>.

[27] See footnote 26.

[28] Gamble, N, “Children of Our Time.” Family Law Journal 1 (2008): 11-13. 4 May 2020 <https://www.ngalaw.co.uk/uploads/docs/538c9764e9053.pdf>. 

[29] See footnote 26. 

[30] Alghrani, A, and Griffiths, D, “The regulation of surrogacy in the United Kingdom: the case for reform.” Child and Family Law Quarterly 29 (2017): 165-186. 2 May 2020 < http://sro.sussex.ac.uk/id/eprint/68402/>.

[31] See footnote 30, page 166.

[32] See footnote 30.

[33] See footnote 30. 

[34] See footnote 26.

[35] See footnote 30.

[36] Jackson, E, “UK Law and International Commercial Surrogacy: 'the very antithesis of sensible.” Journal of Medical Law and Ethics 4 (2016): 197-214. 1 May 2020 < doi.org.10.7590/221354016X14803383336806>.

[37] See footnote 36.

[38] See footnote 36.

[39] See footnote 36. 

[40] See footnote 26.

[41] See footnote 30.

[42] See footnote 30.

[43] See footnote 30. 

[44] See footnote 30.

[45] See footnote 30, page 174-176.

[46] See footnote 28.

[47] See footnote 28.

[48] See footnote 36. 

[49] Pascoe, J, “Sleepwalking Through the Minefield: Legal and Ethical Issues in Surrogacy”, Singapore Academy of Law Journal 30 (2018): 455-483. 30 Apr. 2020 <https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special Issue/eArchive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/1302/Citation/JournalsOnlinePDF>.  

[50] See footnote 1.

[51] Philippa Mary Trowse, Exploitation and Harm in the Context of Indian Commercial Surrogate Women, (Thesis, LLB (QUT); LLM (QUT)), Queensland University of Technology, 2018).

[52] Palattiyil, G B, “Globalization and Cross-Border Reproductive Services: Ethical Implications of Surrogacy in India For Social Work”, International Social Work 53 (2010): 686–700. 4 May 2020 <https://doi.org/10.1177%2F0020872810372157>. 

[53] Commercialized Surrogacy Exploits Women, 14 June 2019, National Organization for Women. 3 May 2020. <https://now.org/media-center/press-release/commercialized-surrogacy-exploits-women/>.

[54] Fenton-Glynn, C, “Surrogacy: Why the world needs rules for 'selling' babies” BBC News, 2 May 2020 <https://www.bbc.com/news/health-47826356>.
 
[55] See footnote 55.

[56] See footnote 4.

[57] Kristine Schanbacher, “India's Gestational Surrogacy Market: An Exploitation of Poor, Uneducated Women”, 25 Hastings Women's Law Journal 201 (2014): 201-220 <https://repository.uchastings.edu/hwlj/vol25/iss2/>.

[58] Rotabi, K. S., et al., “Regulating Commercial Global Surrogacy: The Best Interest of the Child”, Journal of Human Rights and Social Work, 2 (2017): 64-73 <https://doi.org/10.1007/s41134-017-0034-3>. 

[59] F. Krause, J. Boldt (eds.), Care in Healthcare, <https://doi.org/10.1007/978-3-319-61291-1_>.

[60] Verma, T. “What are the Surrogacy Laws in India: Here is Everything you need to Know.” The Indian Express, 5 May 2020 <https://indianexpress.com/article/research/karan-johar-surrogate-children-yash-roohi-what-are-the-surrogacy-in-laws-in-india-here-is-everything-you-need-to-know-4555077/ >.

[61] See footnote 4.

[62] See footnote 56.

[63] See footnote 52.

[64] Fasouliotis, S, and Schenker, J, “Social Aspects Of Assisted Reproduction”, Human Reproduction Update 5(1999): 26–39. 2 May 2020 < https://doi.org/10.1093/humupd/5.1.26>. 

[65] “Lok Sabha passes Surrogacy (Regulation) Bill.” The Hindu Online, 6 May 2020 <https://www.thehindu.com/news/national/lok-sabha-passes-surrogacy-bill/article28824277.ece>.

[66] See footnote 64 above at 1.

[67] Ashna, D, and Warrier, A, “Surrogacy (Regulation) Bill, 2019 Passed by the Lower House of the Indian Parliament”, South Asia Journal <http://southasiajournal.net/surrogacy-regulation-bill-2019-passed-by-the-lower-house-of-the-indian-parliament/>. 

[68] Bhandare, N, “The abolition of choice” Livemint, 4 May 2020 <https://www.livemint.com/mint-lounge/features/the-abolition-of-choice-1568972678261.html>. 

[69] The World Bank, (2019). Maternal mortality ratio (modeled estimate, per 100,000 live births) – Malaysia. Retrieved from <https://data.worldbank.org/indicator/SH.STA.MMRT?locations=MY >. Site accessed on 9 May 2020.

[70] UNICEF, Maternal health. UNICEF India. Retrieved from <https://www.unicef.org/india/what-we-do/maternal-health>. Site accessed on 9 May 2020.

[71] Morley L, et al., “Managing Modern Malaysia: Women in Higher Education Leadership”, Ed., Eggins, H. The Changing Role of Women in Higher Education. Springer. 9 May 2020 < DOI 10.1007/978-3-319-42436-1>.

[72] See footnote 4. 

[73] Smolin, D M, “The One Hundred Thousand Dollar Baby: The Ideological Roots of A New American Export” Cumberland Law Review. 1 (2019): 4 May 2020 < https://advance-lexis-com.ezproxy.um.edu.my/api/permalink/34b4cfb3-0b4b-4675-9cbd-20daf6ba10bf/?context=1522468>. 

[74] Malaysia, Mufti of Federal Territory. Irsyad Fatwa Series 130: The Ruling of Surrogate Mother, 26 September 2016. 7 May 2020  <https://muftiwp.gov.my/en/artikel/irsyad-fatwa/irsyad-fatwa-umum-cat/1235-irsyad-al-fatwa-series-130-the-ruling-of-surrogate-mother>.

[75] Al-Quran, Verse  23:5, al-Mu’minun.

[76] Dr Nehaluddin Ahmad, “Assisted Reproductive Technologies and Surrogacy: Comparative Dimensions and Analysis of the Law in Malaysia” Malayan Law Journal 3 (2012): i. 19 Apr. 2020 < https://advance-lexis-com.ezproxy.um.edu.my/api/permalink/80696095-de1f-419f-a918-076b3f487283/?context=1522468>. 

[77] Zimmerman, A L, “Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate”, Brooklyn J. Int'l L. 41 (2016): 917. 4 May 2020 < https://advance-lexis-com.ezproxy.um.edu.my/api/permalink/84c52b5a-e76e-4bf7-9530-77e774e40d08/?context=1522468>.

[78] Whittaker, A, “Merit and money: The situated ethics of transnational commercial surrogacy in Thailand”, International Journal of Feminist Approaches to Bioethics 7 (2014): 100-120. 25 Apr. 2020 <https://www.jstor.org/stable/10.3138/ijfab.7.2.100>.

[79] Amanda Meade, “Gammy: Australian Parents Wanted a Refund and Would Have Aborted Him”, The Guardian (10 Aug, 2014) <http://www.theguardian.com/world/2014/aug/10/baby-gammy-parents-interview-aborted-downs-syndrome-australia>.

[80] “Mitsutoki Shigeta: 'Baby factory' dad wins paternity rights”, BBC News, 20 Apr. 2020 <https://www.bbc.com/news/world-asia-43123658>.

[81] Guide to Thailand's Surrogacy Scandals and Laws, Ed. Gecker,A, 13 Sept.2014, Northwest Asian Weekly, 3 May 2020 <http://www.nwasianweekly.com/2014/09/guide-thailands-surrogacy-scandals-laws/>.

[82] See footnote 77. 

[83] See footnote 11.

[84] See footnote 78.

[85] The United States Surrogacy Law Map, Creative Family Connections LLC. <https://www.creativefamilyconnections.com/us-surrogacy-law-map/> Site accessed on 2 May 2020.

[86] Family Code Part 3 Uniform Parentage Act 1973.

[87] K.M. v. E.G., 37 Cal. 4th 130.

[88] Farese. K, “The Bun's in the Oven, Now What? How Pre-Birth Orders Promote Clarity in Surrogacy Law”, UC Davis Social Justice Law Review 23 (2019): 2 May 2020 <https://advance-lexis-com.ezproxy.um.edu.my/api/permalink/0f5bc0c8-e4bb-4e04-8d77-45bd88e664c3/?context=1522468>.

[89] See footnote 87. 

[90] See footnote 72. 

[91] See footnote 11.

[92] Re Marriage of Moschetta Nos. G013880, G014430.