Legitimacy Of Children Born By Artificial Insemination In Malaysia: A Legal Analysis Of Section 112 Of The Evidence Act 1950

• Main Authors: Masum, Ahmad, Ahmad, Nehaluddin, Md Dahlan, Nuarrual Hilal
• Format: Article
• Language: English
• Published: CLJLaw 2021
• Subjects: K Law (General)
• Online Access: http://repo.uum.edu.my/28304/1/LNS2021_01_18.pdf; http://repo.uum.edu.my/28304/; https://www.cljlaw.com/bulletin/?CLJBulletin;2021;36;b;#LNSA
• Institution: Universiti Utara Malaysia

Whether a child begotten from artificial insemination is legitimate or illegitimate according to the law is an important question. In other words, the status of legitimacy or illegitimacy of a child is crucial as it will determine the child’s entitlement to many rights, especially those within the family circle, such as maintenance, care and upbringing, inheritance, etc. A child is legitimate if its parents have intermarried when it is begotten or born. The fact that conception is effected not by adultery or fornication but by a method not involving sexual intercourse does not in principle seem to alter the concept of legitimacy. The paper aims to analyse the extent of the applicability of the legitimacy test laid down in section 112 of the Evidence Act 1950 and whether it is justified in today’s time in view of the scientific developments such as artificial insemination and many other methods which don’t require the physical presence of a man and woman for the child’s conception. Hence, one of the contentious issues is whether or not the presumption of legitimacy embodied in section 112 applies in cases where children are born through Assisted Reproductive Technology (ART). The paper concludes that section 112 embodies the irrebuttable presumption of legitimacy of a child born out of valid wedlock. The section establishes the fact of marriage as conclusive proof of legitimacy. In addition, the paper also concludes that section 112 can be easily interpreted to include Homologous Artificial Insemination (AIH) because, in this case, the husband is the biological or natural father of the child. The paper recommends a need to streamline the process of artificial insemination in Malaysia and address the legal, ethical as well as technical issues that follow by way of legislative intervention.