The court established that the right to procreate must be balanced against the right to avoid parenthood, granting custody of a child to one parent while denying financial obligations to the other without consent.

Evrol Mariette Peters J:

Introduction

[1] This was an application ("this Application") by the Applicant-Wife seeking sole guardianship, custody, care, and control of the child in question, along with a lump sum maintenance payment of MYR1,440,000.00. She also requested that the child's name be changed. In addition, the Applicant sought custody, care and control of two frozen embryos that the Applicant-Wife and Respondent-Husband had agreed to fertilise during their marriage.

[2] In view of the privacy of the parties and sensitivity of issues in these proceedings, the Applicant, Respondent, and the child in question have been anonymised in this judgment respectively as RAH, RAL, and RAS.

The Factual Background

[3] The Applicant, 50, and the Respondent, 46 (collectively, "the Parties"), at the time of the hearing of this Application, registered their marriage in February 2009.

[4] In October 2014, the Parties mutually agreed to pursue in vitro fertilisation (IVF) treatment as a means to have children. During this process, three embryos were created by fertilising the Respondent's sperm with an ovum donated by the Applicant's sister. These embryos were then preserved in a frozen state at an IVF clinic ("the IVF Clinic"), marking a significant step in their journey towards parenthood.

[5] In 2017, however, the marriage between the Applicant and the Respondent ended in divorce. Despite their separation, they proceeded with the IVF process they had initiated during their marriage, which involved the implantation of one of their previously frozen embryos in 2021. This collaborative effort culminated in the birth of their daughter ("the Child") in February 2022.

[6] The Applicant contended that although the Respondent had initially expressed a strong commitment to actively participating in the Child's life following her birth, this engagement had markedly diminished over time, leading to concerns about the Respondent's overall involvement and support. The Applicant highlighted that the Respondent's initial enthusiasm and assurances of support began to wane, resulting in a notable decline in both his physical presence and financial contributions, which were vital for the child's well-being.

[7] Consequently, the Applicant deemed this diminishing interest and support as a significant factor prompting this Application, which was filed in July 2024.

The Issues

[8] From the outset, the Respondent informed the Court that he was not contesting the Applicant's claim for sole guardianship, custody, care, and control of the Child. He also raised no objection to the Applicant changing the Child's name.

[9] Hence, the only issues for this Court to address were as follows:

(a) Whether the Applicant was entitled to sole custody, care, and control of the remaining two frozen embryos. In examining this broader issue, it was essential to consider the principles of personhood, autonomy, and beneficence. Additionally, resolving this matter required an assessment of the timeline for embryo usage, along with the following key sub-issues:

(i) The legal status of embryos and whether they possess personhood;

(ii) Whether the Parties' intentions were clearly established;

(iii) Whether both Parties' consent was necessary for future use of the embryos;

(iv) Whether the right to procreate outweighed the right to avoid parenthood.

(b) In addressing the issue of child maintenance, the Court had to address the following issues, namely:

(i) Whether a lump sum was permitted for child maintenance;

(ii) Whether child maintenance of monthly MYR7,500.00 was justified; and

(c) Whether the Respondent was entitled to access to the Child.

[10] The Application was partially granted, with the Applicant receiving control over the remaining two frozen embryos. Additionally, the Respondent, who was granted limited access to the Child, was ordered to pay monthly child maintenance of MYR1,500.00, subject to a 10 percent increment.

Contentions, Evaluation, And Findings

Control Of The Frozen Embryos