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2025 MarsdenLR 6644
HIGH COURT (KUALA LUMPUR)
EVROL MARIETTE PETERS, J
RAH – Plaintiff
Versus
RAL – Defendant
ORIGINATING SUMMONS NO WA-24F-190–07 OF 2024
Sangeet Deo (with Tan Chee Kian and Harkiranjit Kaur) (Karpal Singh & Co) for the applicant. Sukhdev Singh (Azlan Shah Sukhdev & Co) for the respondent.
Frozen embryos lack legal personhood and are not mere property; control may be granted based on commitment, provided the other party is not compelled into parenthood or financial liability. Lump-sum child maintenance is prohibited under the Guardianship of Infants Act 1961.
Headnote:(A) Guardianship of Infants Act 1961 ss 3 and 19A — Federal Constitution art 5 — Convention on the Elimination of All Forms of Discrimination Against Women art 16(e) — Universal Declaration of Human Rights art 12 — Legal status of frozen embryos — Whether embryos possess personhood — In the jurisdiction, legal parental rights only begin at birth, and embryos are not recognized as children; they are neither persons nor ordinary property but "potential human beings" (Paras 30, 41) — Terminology such as "custody" or "possession" is inappropriate; "control" should be used to denote authority over disposition (Paras 42-43).
(B) Right to procreate versus right to avoid parenthood — The fundamental right to procreate, encompassed within art 5 of the Federal Constitution, must be balanced against the right not to be compelled into parenthood (Paras 62-63) — A person cannot be forced into the full scope of parenthood, but embryos cannot be forced to be destroyed if they are seen as potential human beings (Paras 68-72) — Where no prior agreement exists, the party bearing primary financial responsibility for preservation may be granted control, provided the other party is exempt from future financial obligations for any resulting children (Paras 75-77).
(C) Child maintenance — Law Reform (Marriage and Divorce) Act 1976 is inapplicable to illegitimate children (Para 82) — Lump-sum maintenance is not permitted under s 19A of the Guardianship of Infants Act 1961 and is unwarranted due to the changing needs of the child, risk of mismanagement, and unfair financial burden on the paying parent (Paras 86-92).
Facts of the case:
Parties created embryos through in vitro fertilisation during their marriage. Following divorce, one embryo was implanted with mutual consent, leading to the birth of a child. The applicant sought sole guardianship and custody of the child, a lump-sum maintenance payment, and control of the remaining two frozen embryos. The respondent did not contest child custody but opposed the control of embryos and the quantum of maintenance.
Findings of Court:
The applicant is granted control of the frozen embryos on the conditions that the respondent is not liable for financial obligations associated with them and cannot be sought for support for any children born from them. Monthly maintenance of RM1,500 with a 10% annual increment is ordered. The respondent is granted access to the child.
Issues: Whether frozen embryos possess legal personhood; whether the right to procreate outweighs the right to avoid parenthood; whether lump-sum payments are permitted for child maintenance under the Guardianship of Infants Act 1961.
Ratio Decidendi: Embryos are characterized as "potential human beings" rather than persons or property; thus, control may be granted to the party showing commitment through financial support, provided the non-consenting party is not forced into parenthood or financial liability. Statute prohibits lump-sum maintenance for children, emphasizing periodic payments to accommodate evolving needs.
Result: Application partially allowed.
Legal Category Hierarchy
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family law
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divorce
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ancillary relief
- custody and access
- child maintenance
- guardianship
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ancillary relief
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assisted reproduction
- in vitro fertilisation
- frozen embryos
- consent to use embryos
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parent and child
- legitimacy
- parental responsibility
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divorce
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practice and procedure
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jurisdiction
- family court
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evidence
- documentary evidence
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jurisdiction
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constitutional law
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fundamental rights
- right to life and personal liberty
- right to procreate
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fundamental rights
-
law of persons
-
legal status
- personhood of embryo
-
legal status
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 MYR1.4m. 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 (‘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 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; and(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; and(ii)whether child maintenance of monthly MYR7,500 was justified.(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, subject to a 10% increment.
CONTENTIONS, EVALUATION, AND FINDINGSControl of the frozen embryosTimelines of the use of the embryos
[11]In the present c
