An ethico-legal analysis of assisted reproductive technologies in Malaysia : balancing rights and responsibilities

Abstract

The availability of various assisted reproductive technologies (ART) provides better solutions to the problem of infertility. These technologies have been welcomed in Malaysia as it allows infertile couples to fulfil their wishes of becoming parents. However, in allowing fertilisation to occur outside the womb, practitioners are able to introduce third party materials and services into the reproductive process. This introduction leads to practices which are legally and ethically questionable such as using donated sperm, eggs, embryos and surrogacy. Many countries around the world have accepted these practices to be necessary in order to respect the reproductive rights and choices of infertile couples. In order to facilitate the changes that are brought by the introduction of a third party, legislations in many countries have changed the concept of parent-child relationship which is in fact a major change in the traditional concept of the family. Aside from that, these laws also try to grapple with the legal and ethical status brought about by the existence of frozen embryos. The aim of this study is to analyse, in the Malaysian context, the legal and ethical problems that result from the use of ART involving donated materials and surrogacy. The study also looks at the legal and ethical status of frozen embryos left over from ART treatments. In doing so the study analyses the legislations around the world that have addressed these issues. An analysis of the historical and legal conditions in these countries show that many of these legislations gives primary emphasis in protecting the reproductive rights of the infertile couples. This has resulted in a significant change to the traditional aspects of family law and the legal basis for parental responsibilities. Based on this analysis, the study submits that a total legislative transplantation of a particular Western model of legislation to the Malaysian setting would not be practical due to the legal differences in the concept of legitimacy and legal responsibilities that flow when an individual procreates. Instead, legislating ART in Malaysia could adopt an Islamic framework which respects individual reproductive rights whilst recognising the responsibilities that come with reproduction.