This is the first time that a Malaysian court has ruled on the legal status of an embryo.
The Applicant filed an application against the Respondent regarding the custody, care, and control of their child and two frozen embryos that were fertilised during their marriage. The Applicant also sought a lump-sum maintenance payment for the child and requested a change in the child’s name. The Respondent did not contest the Applicant’s claims regarding the child but opposed her request for control of the frozen embryos. Below is a summary of the key points and findings of the court:
◦
Introduction
◦
1. Background of the Case: The Applicant and Respondent were married in 2009 and divorced in 2017. During their marriage, they underwent in vitro fertilisation (IVF) treatment, resulting in the creation of three embryos using the Respondent’s sperm and an ovum donated by the Applicant’s sister. These embryos were frozen and stored at an IVF clinic. After their divorce, the Parties agreed to implant one of the embryos in 2021, leading to the birth of their child in 2022. The Applicant now seeks control over the remaining two frozen embryos and child maintenance.
◦
2. Key Issues: The Court had to address the following issues:
◦
• Whether the Applicant was entitled to sole custody, care, and control of the remaining two frozen embryos.
• Whether a lump-sum maintenance payment for the child was justified.
• Whether the Respondent was entitled to access to the child.
◦
Control of the Frozen Embryos
◦
1. Timelines of Embryo Use: The Court analyzed the issue of the frozen embryos within three distinct timelines:
◦
• First Timeline (2014): The embryos were created during the subsistence of the marriage with mutual consent. There were no legal restrictions on IVF for non-Muslim couples in Malaysia.
• Second Timeline (2021): The first embryo was implanted after the divorce, resulting in the birth of the child. This was an unconventional decision, as the Parties were no longer married.
•Third Timeline (2024): The Applicant sought control of the remaining two frozen embryos, while the Respondent opposed their use for any future reproductive purposes, fearing future financial and legal obligations that may arise.
◦
2. Legal Status of Embryos: The Court considered whether embryos possess legal personhood. It concluded that embryos do not have legal personhood under Malaysian law, but they should not be treated as ordinary property that can be freely sold, transferred, or disposed of like other assets. The Court emphasized that embryos exist in a legal and ethical grey area, being neither persons nor property.
◦
3. Parties’ Intentions: The Court noted that there was no written agreement between the Parties regarding the future use of the frozen embryos. The Respondent had consented to the implantation of the first embryo after the divorce but opposed the use of the remaining embryos. The Court referred to the case of Davis v. Davis (1992), where the Tennessee Supreme Court ruled that the right not to procreate outweighed the right to procreate in cases involving frozen embryos.
◦
4. Consent for Future Use: The Court found that the Respondent’s prior consent to the implantation of the first embryo did not imply consent for the use of the remaining embryos. The Court emphasized that both Parties’ consent were necessary for the future use of the embryos.
◦
5. Right to Procreate vs. Right to Avoid Parenthood: The Court balanced the Applicant’s right to procreate against the Respondent’s right to avoid parenthood. While the Applicant had the right to procreate, the Respondent could not be compelled to become a father against his will. The Court viewed that the Applicant should be given the prerogative to decide what should be done with the frozen embryos, particularly because she bore the primary financial responsibility for their freezing and storage. The financial contribution she had towards the preservation of the frozen embryos was considered significant, as it indicated her intent and commitment toward their preservation, possibly for future reproductive use. In granting control of the frozen embryos to the Applicant, several conditions were imposed on the Applicant.
◦
6. Conditions Imposed on the Applicant: The following conditions were imposed:
◦
• The Respondent would not be liable for any financial obligations related to the embryos.
• The Applicant could not seek financial support from the Respondent for any child born from the embryos.
• The Applicant must comply with the regulations and standards of the IVF clinic regarding the storage, implantation, and disposal of the embryos.
◦
Child Maintenance
◦
1. Lump-Sum Maintenance: The Applicant requested a lump-sum maintenance payment of RM 1,440,000.00 for the child. The Court rejected this request, citing the following reasons:
◦
• The child’s financial needs may change over time, and a lump sum may not account for inflation or unforeseen costs.
• There was a risk of mismanagement of funds if a large sum was granted upfront.
• A lump-sum payment could place significant financial strain on the Respondent.
◦
2. Monthly Maintenance: The Court ordered the Respondent to pay monthly child maintenance of RM 1,500.00, subject to a 10% annual increment. The Court found the Applicant’s claim for RM 7,500 per month to be excessive and unreasonable, given the child’s age and the Applicant’s financial standing. The maintenance payments would continue until the child reaches the age of 18 or completes her tertiary education.
◦
Access to the Child
◦
1. Respondent’s Access: The Respondent requested access to the child, despite his limited involvement in her life. The Court granted the Respondent supervised physical access for the first six months, followed by unsupervised access every alternate weekend.
◦
Key Takeaways
◦
1. Embryo Control: The Court ruled that the Applicant could have control over the frozen embryos, but the Respondent would not be financially responsible for any children born from them. The Court emphasized the need for both Parties’ consent for the future use of embryos.
◦
2. Child Maintenance: The Court rejected the Applicant’s request for a lump-sum maintenance payment, instead ordering monthly payments that could be adjusted over time.
◦
3. Access to the Child: The Respondent was granted access to the child, despite his limited involvement in her life.
◦
This case highlights the complex legal and ethical issues surrounding the use of frozen embryos, particularly in the context of divorce. The Court’s decision balanced the rights and interests of both Parties, ensuring that the child’s welfare remained the primary consideration.
About the author
Jessica Wong Yi Sing
Senior Associate
Dispute Resolution
Harold & Lam Partnership
jessica@hlplawyers.com
More of our articles that you should read:
