Legal obstacle course for surrogacy in Indonesia - 360
Sonny Dewi Judiasih, Deviana Yuanitasari
Published on July 19, 2023
Surrogacy is banned in Indonesia but that may not always be the case. How does the conversation about legalising it begin?
Surrogate motherhood is prohibited in Indonesia but it exists nevertheless.
There have been cases of surrogacy in several regions of Indonesia, carried out by individuals secretly through family connections. On Facebook, for example, it isn’t difficult to find young mothers from Indonesia registering to become surrogate mothers.
There are no strict and clear sanctions for parties who violate Indonesia’s surrogacy ban. This has led to the practice being conducted in secret or within a family.
But the ban will not necessarily remain forever.
Surrogacy will likely become a legal issue in Indonesia in the next five to 10 years. Since 1970, the fertility rate in Indonesia has been in decline. Use of reproductive technology is growing but surrogacy via family connections is more affordable despite the current ban of the practice.
If reality mimics art, an upcoming film Dear Jo could reflect the future situation in Indonesia, where many couples decide to use surrogacy for various reasons.
Discussions about surrogate motherhood have been studied extensively in Indonesia, but no formal references have been established because of a reluctance of those involved to go public.
While doctors and clinics face severe penalties for providing surrogacy services, intended parents fear prosecution due to the illegality of the practice. Surrogate mothers may be considered immoral, and the child illegitimate.
As an initial step towards a more genuine discussion of surrogacy in Indonesia, the proposal of ‘uterus leasing’ could be the answer.
Under Indonesian law, for a contract between parties to be valid, it requires capable and consenting parties, as well as the object of the contract and its articles to be supported by applicable regulations. The objects and articles necessary for the practice of surrogacy in Indonesia are currently not fulfilled.
Indonesian law states that a legitimate child is one born in or as a result of a legal marriage. Children born out of wedlock only have a civil relationship with their mother and her family.
So, children born to surrogate mothers are the legitimate child of the surrogate mother, not the child of the would-be parents.
The status of the child can be changed to that of the intended parents if it is agreed in the surrogacy contract that the child born automatically becomes the child of the intended parents, so that the surrogate mother has no rights over the child.
In a uterus leasing agreement, the subject of the agreement are the services rendered by a surrogate mother as a substitute for the process of pregnancy and childbirth. If the subject is the services of a surrogate mother, then based on Indonesia’s Civil Code, it is under the category of the class of doing or performing an act.
This is based on the reason that the surrogate mother provides services in the form of renting her uterus and then caring for the baby in the womb until birth.
In relation to objects, another article on the Civil Code states that “every item and every right that can be an object and property rights”, so the definition of objects (zaak) is “everything that can be the subject of property rights”. Objects regulated in the Civil Code are tangible objects (vehicles, houses or land).
However, the uterus cannot be classified as an object or a thing, because it is an entity given to a woman by the Creator. Despite the fact the uterus is a solid object (people can see and hold it), it is not one of the objects referred to in the Civil Code. There is no specific codification of the uterus in the Civil Code.
Furthermore, there can be no revocation of a woman’s property rights to her uterus by the government in the public interest, except for medical issues. Any object owned by a person, then by order of the legislation can be taken by the government with the payment of appropriate compensation. Therefore, it is not logical for the uterus to be included as an object.
In addition, based on the law of leasing, “a lease is an agreement by which one party undertakes to grant the other party the use of something, for a certain period of time and with the payment of a price that the latter is willing to pay”. From the above definition of lease in the case of surrogate mother, it is true that there is an agreement between two parties.
Indonesian Civil Code also says “only tradable goods can be the subject of a contract“. There is no mention of a rented uterus. If the uterus can be constructed as an object that can be rented, then this will be the first procedure that will allow the practice of uterus renting based on a surrogacy contract.
The fact that the wombs are rented to continue the family lineage can’t be ignored by the law.
If surrogacy is to become legitimate in Indonesia, the uterus as a recognised object of a contract should come first before other regulations follow.
Sonny Dewi Judiasih is a professor of civil law and the head of the Department of Civil Law in the Faculty of Law, Universitas Padjadjaran, Bandung Indonesia. Her research interests are in civil law and family law.
Deviana Yuanitasari is a lecturer and researcher for the Economic Law Department in the Faculty of Law, Universitas Padjadjaran, Bandung Indonesia. She is currently pursuing her doctoral degree at Universitas Indonesia. Her research interests are in civil law, trade law and consumer protection law.
Originally published under Creative Commons by 360info™.
Editors Note: In the story “State of surrogacy” sent at: 17/07/2023 06:00.
This is a corrected repeat.