The legal implications of prenatal diagnosis in Malaysia

Background: Prenatal diagnosis enables detection of any disease or disability of the fetus during the pregnancy of a woman. Parents whose fetus is found to have a serious disorder from antenatal testing may terminate the pregnancy if it is permitted by the law or continue with the pregnancy to term. However, the chance of terminating a pregnancy may be denied if there is prenatal negligence by the medical practitioner in terms of diagnosis or failure to advise on the test results correctly. The purpose of this research is to examine the possible legal implications of prenatal diagnosis in Malaysia. Methods: This study adopts doctrinal legal research in which the researcher examines statutes and decided cases in Malaysia, the United Kingdom (UK) and Singapore relating to abortion, wrongful birth and wrongful life claims, in order to determine the legal implications of prenatal diagnosis in Malaysia. Results: In Malaysia, abortion following a prenatal diagnosis is only legally possible if the statutory criteria in the Penal Code are met. Abortion is illegal if it is not done for therapeutic purposes. A wrongful birth action brought by a woman who claims to be deprived of the opportunity to terminate her pregnancy may be successful in Malaysia, if it can be proven that a legal abortion could have been performed if not because of the prenatal negligence of the medical practitioner. However, a wrongful life action brought in the child’s name for being allowed to be born with a disability may not be viable since the claim could hardly be established and it is against the public policy. Conclusions: Theoretically, it is possible to bring a wrongful birth action resulted from negligence in prenatal diagnosis successfully in Malaysia, but the chance is relatively slim for wrongful life action

Legal recourse for breach of mandatory bid rule in Malaysia

In Malaysia, if an acquisition of voting shares in a public company exceeds the statutory threshold for ‘control’, the rule is that the acquirer is obliged to make a mandatory offer to acquire the remaining shares in the target company. This mandatory bid rule, as embodied in the Capital Markets and Services Act 2007 (‘CMSA’) and the Malaysian Code on Takeovers and Merger 2010 (‘the 2010 Code’), has the rationale that the control of a company has a value in itself and such value must be shared by all shareholders. Such concept of ‘equal opportunity’ is reflected in s 217(5)(b) of the CMSA. Since a takeover involves a transfer of corporate control, the mandatory bid rule also provides an opportunity for the remaining shareholders to exit the company because the character of the company may have changed under the new controller. Failure to make a mandatory offer may be visited with criminal sanctions as well as administrative actions by the Securities Commission. However, reported cases in Malaysia reveal a divergence in views as to whether a shareholder of the target company has a private law remedy premised on the breach of statutory duty under the predecessors of the CMSA and the Malaysian Code on Takeovers and Mergers. It is believed that similar cases in which the CMSA and the 2010 Code apply (if any), are yet to be reported. This article seeks to examine whether a shareholder of the target company can maintain a similar claim under the current laws

Religious conversions and the conflicts between Civil and Islamic Law of Inheritance in Malaysia

There are two parallel systems of law governing the matter of inheritance in Malaysia. The non-Muslims are governed by civil law while the Muslims are regulated by Islamic law. However, this segregation does not prevent the potential conflicts when one changes his or her religion. This article seeks to examine the differences between these two systems of law of inheritance, the conflicts caused by changes of religion and the possible solutions that may relieve the hardship faced by the affected parties

Conception of Saviour Siblings: Religious Views in Malaysia

The advancement of human reproductive technology has made it possible for parents with a child affected by a haematological disorder to select and bring into being, a prospective child who can act as a matched stem cell donor. This can be done through the use of preimplantation genetic diagnosis (PGD) coupled with human leukocyte antigen (HLA) typing (PGD-HLA typing), or HLA tying as a standalone procedure, where a healthy embryo, which is an HLA match to the existing sick sibling, is chosen for implantation. The creation of such a sibling (saviour sibling) is normally taken as a last resort when there is no related or unrelated matched donor. While the conception of a saviour sibling may serve as a reliable and realistic treatment option for the ailing child, it also poses new moral questions that challenge a religiously pluralistic society such as Malaysia. The use of PGD-HLA typing may be controversial as it involves creating a life to save a life, selection of compatible human embryos and destruction of the unselected embryos. At present, there is no legal framework regulating the conception of saviour siblings. The development of ethically sound and appropriate local laws and policies should consider the views of religious communities, especially when it involves a controversial subject such as the conception of saviour siblings. This article seeks to explore the perceptions of religious scholars and representatives of the major religions professed and practised in Malaysia, namely Islam, Buddhism, Christianity and Hinduism, through qualitative interviews

The Ethical Perceptions of Selected Stakeholders on the Practice of Saviour Siblings in Malaysia

The creation of saviour siblings using the embryo selection technologies, namely, preimplantation genetic diagnosis (PGD) coupled with HLA typing or HLA typing as a sole clinical procedure, has sparked ethical debates on whether the practice is acceptable. The resulting child from the use of these technologies is dubbed a ‘saviour sibling’ as the child can potentially act as a compatible donor for an existing ailing sibling who needs an haemopoietic stem cell (HSC) transplantation. Previous literature identified several ethical arguments such as the instrumentalisation of the future child, the risk of physical and psychological harm to the saviour sibling, and the conflict of interests the parents face when they need to decide whether to consent to an HSC transplantation when the donor and recipient are their own children. However, such views are mainly held by Western scholars. It would be interesting to ascertain the views of local stakeholders to determine whether they mirror or are in keeping or how they map against the arguments in the previous literature. This article aims to explore the perceptions of selected participants on the acceptability of this practice in the Malaysian context, if the technologies are used for this purpose in this country. Semi-structured interviews were conducted with six medical practitioners and the scientist, seven patients with haematological conditions and four parents of patients in Malaysia. Their perceptions were then used to compare against the previous literature on the ethics of the creation of saviour siblings. Findings reveal that the participants were influenced by their expertise, their own experience and their role as parents. The views of the majority of the medical practitioners and the scientist were more consistent with the previous literature but the perceptions of the patients and the parents of patients showed otherwise. 2 The ethical views of these participants are relevant because PGD and HLA typing technologies are available in Malaysia and there have been attempts to conceive saviour siblings using these technologies. However, whether this practice is permitted in Malaysia is not clearly addressed in the Malaysian Medical Council’s Guideline on Assisted Reproduction. It is hoped that the findings of the interviews will inform the policy maker in adopting a clearer position on the permissibility of the practice of saviour siblings

The need to address legal ambiguity on conceiving saviour siblings in Malaysia

Conceiving a saviour sibling can be a vital treatment option for a child suffering from a haematological condition. However, the legality of this option may be called into question in countries where there is no clear law or policy regarding the use of preimplantation genetic diagnosis with HLA typing (PGD-HLA typing) or HLA typing alone for this purpose. In Malaysia for instance, there is no legislative framework governing the use of assisted reproductive technology and the only guidance appears to be provided by guidelines issued by the Malaysian Medical Council. In the absence of clear direction, broad guidelines or policy positions taken by such statutory bodies may heavily influence the practice or roll out of certain technologically advanced therapeutic interventions. Previous literature has construed this Guideline narrowly as prohibiting this practice. This paper argues that the narrow and traditional interpretation method used in previous literature is wanting and suggests a more meaningful approach to the interpretation of the Guideline and advocates that this interpretative method should be applied in similar instances involving technologically advanced treatment modalities in other similar situations. Such guidance documents should be interpreted in a manner which takes into account the nature of the technology, its implications and intended use

Conception of Saviour Siblings: Ethical Perceptions of Selected Stakeholders in Malaysia

The conception of saviour siblings using preimplantation genetic diagnosis coupled with human leukocyte antigen (HLA) typing or HLA typing alone is controversial and receives a wide divergence of legal responses among countries around the world. The resulting child conceived through this procedure is dubbed a ‘saviour sibling’ as the child can potentially act as a compatible donor for an elder ailing sibling who needs a haematopoietic stem cell transplantation. At present, the acceptability of this procedure in Malaysia is ambiguous as there is no specific statute governing assisted reproductive technology, and the guideline issued by the Malaysian Medical Council does not expressly address this issue. The ethical arguments relating to the conception of saviour siblings in the current literature are mainly thought to reflect a liberal viewpoint which is predominantly Western in nature. This paper seeks to explore the perception of selected key stakeholders on the acceptability of and ethical concerns related to this procedure in the Malaysian context. The findings indicate that stakeholders generally support the conception of saviour siblings and some of their concerns echo the Western viewpoint. Interestingly, many were highly anxious about its economic implication, which is rarely discussed in the current literature on saviour siblings

Will Formalities during the Pandemic: A Comparative Study of Malaysia and Selected Jurisdictions

Most countries around the world have entered the endemic stage of the novel coronavirus after 2 years of battling with the soaring rise of infections among the people. As of 1 April 2022, Malaysia, a country which has one of the highest rates of infection per capita in Southeast Asia, has entered the endemic phase of Covid-19. For a will to be valid in Malaysia, the formalities in the Wills Act 1959 (Revised 1998) must be strictly conformed to. A slight deviation from the formalities would render invalid the will that conveys the testamentary intention of the testator. The Covid-19 pandemic has raised several issues including issue of mobility, making wills difficult to be validly executed in accordance with the Wills Act 1959. Even though Malaysia has moved on to the endemic stage, the pandemic of Covid-19 has clearly shown the inadequacy of Wills Act 1959 to serve in the changed and ever-changing world. This paper adopts the doctrinal legal research method by analysing the existing laws in Malaysia and comparing with other jurisdictions such as Australia, United Kingdom, and the United States of America, in considering the necessary reforms in order to uphold the testamentary intention of the will despite the need for formalities, to cope with future unprecedented events. This includes allowing remote execution, adopting electronic wills and electronic signatures in the execution of wills, and introducing dispensing powers. Reforms to the Wills Act are necessary due to the challenges encountered in the new norm and also in light of the rapid technological advancements that the world has undergone

Will Formalities during the Pandemic: A Comparative Study of Malaysia and Selected Jurisdictions

Most countries around the world have entered the endemic stage of the novel coronavirus after 2 years of battling with the soaring rise of infections among the people. As of 1 April 2022, Malaysia, a country which has one of the highest rates of infection per capita in Southeast Asia, has entered the endemic phase of Covid-19. For a will to be valid in Malaysia, the formalities in the Wills Act 1959 (Revised 1998) must be strictly conformed to. A slight deviation from the formalities would render invalid the will that conveys the testamentary intention of the testator. The Covid-19 pandemic has raised several issues including issue of mobility, making wills difficult to be validly executed in accordance with the Wills Act 1959. Even though Malaysia has moved on to the endemic stage, the pandemic of Covid-19 has clearly shown the inadequacy of Wills Act 1959 to serve in the changed and ever-changing world. This paper adopts the doctrinal legal research method by analysing the existing laws in Malaysia and comparing with other jurisdictions such as Australia, United Kingdom, and the United States of America, in considering the necessary reforms in order to uphold the testamentary intention of the will despite the need for formalities, to cope with future unprecedented events. This includes allowing remote execution, adopting electronic wills and electronic signatures in the execution of wills, and introducing dispensing powers. Reforms to the Wills Act are necessary due to the challenges encountered in the new norm and also in light of the rapid technological advancements that the world has undergone