<figure id="attachment_2874217" aria-describedby="caption-attachment-2874217" style="width: 1600px" class="wp-caption alignnone"><img loading="lazy" class="wp-image-2874217 size-full" src="https://media.freemalaysiatoday.com/wp-content/uploads/2024/09/a040218c-kl-high-court-resize-250924.webp" alt="kl high court" width="1600" height="1000" /><figcaption id="caption-attachment-2874217" class="wp-caption-text">Justice Evrol Mariette Peters ruled in a divorce case that involved the control over two frozen embryos that parenthood should not be imposed on an unwilling party.</figcaption></figure>
KUALA LUMPUR: The High Court here has, in a landmark ruling, given a divorced woman control over two frozen embryos that she and her former husband had agreed to fertilise during their marriage.
Justice Evrol Mariette Peters, however, imposed conditions to ensure her decision is aligned with ethical, medical and legal considerations.
Firstly, the ex-husband, identified as RAL, will not be held liable for any financial obligations associated with the embryos.
&#8220;This includes storage costs, medical procedures and any potential future use. This condition would protect the respondent from being burdened with unforeseen expenses or responsibilities that he did not voluntarily assume,&#8221; she said in a 44-page judgment.
Secondly, the ex-wife, anonymised as RAH, is barred from seeking financial support from the ex-husband for any child born from the embryos.
&#8220;This condition reinforces the principle that parenthood should not be imposed on an unwilling party. It also ensures that the ex-husband’s decision not to participate in the child’s upbringing would be legally upheld, preventing future disputes over parental obligations,&#8221; she said.
In essence, Peters said the ex-husband would be regarded as a sperm donor in the eyes of the law.
Thirdly, she said the ex-wife&#8217;s control over the embryos would be subject to all regulations and standards that in vitro fertilisation (IVF) treatment clinics are subject to.
The facts of the case revealed that the woman, 50, and the man, 46, registered their marriage in 2009. Five years later, the parties mutually agreed to pursue IVF treatment as a means to have children.
Three embryos were created by fertilising the man&#8217;s sperm with an ovum donated by the woman&#8217;s sister. These embryos were then preserved in a frozen state at an IVF clinic.
However, in 2017, the couple divorced but they agreed to implant one embryo in 2021, culminating in the birth of their daughter, identified as RAS, three years ago.
The ex-wife contended that although her ex-husband had initially expressed a strong commitment to actively participate in the child’s life following her birth, this engagement had markedly diminished over time.
As a result, she applied last year to seek sole guardianship, custody, care and control of the child (RAS) and for maintenance payments.
In addition, she sought control of two embryos the couple had agreed to fertilise during their marriage.
Peters said the embryos should not be divided as part of matrimonial assets in a divorce or separation, nor should they be subject to standard inheritance, contract or family laws without careful consideration of the ethical and moral implications involved.
The judge said if the ex-wife wanted to use the embryos to have children, either by carrying the pregnancy herself or through a surrogate, the case would involve a delicate balance between competing rights.
Peters noted the ex-wife’s position that she had the right to procreate and use the embryos to fulfil her reproductive goals. However, the judge also took into account the ex-husband’s assertion that he cannot be forced into parenthood against his will.
&#8220;Given that embryos do not possess legal personhood and are, at most, potential human beings, the ex-husband cannot be compelled to become a father in the future.
&#8220;Neither the legal system nor this court has the authority to impose such an obligation on the ex-husband,&#8221; said Peters.
The judge said the court was also not in a position to compel the ex-wife to discard or destroy the embryos.
She said this measured approach would prevent undue hardship for either party and maintain fairness in the absence of specific legal provisions governing embryo ownership in Malaysia.
&#8220;At this juncture, it is essential to highlight the urgent need for legislative intervention in Malaysia regarding embryo protection and assisted reproductive technology,&#8221; she said, pointing out the existence of such laws in the United Kingdom and Germany.
Peters also ordered the ex-husband to pay monthly maintenance of RM1,500 for their child (RAS), subject to an annual increment of 10% and gave him limited visitation rights.

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