3 things you need to know about adoption laws in Malaysia

Note: This adoption process applies only in Peninsular Malaysia.

There are many reasons as to why people choose to adopt. Apart from couples having fertility or health issues, there are couples who opt for adoption in light of the increase of baby dumping cases, number of orphans and the world overpopulation, in general. 

In 2018, there were 7,300 adoption cases in Malaysia according to National Registration Department (NRD) statistics. For those who are thinking of adopting, it may seem like an unfamiliar or complicated process. But if you’re lucky, it can be a relatively straightforward process, and we’re here to break it down to you on how it works.

But first, you need to make sure that you qualify to adopt a child. And one of the things to know is...

1. It’s easier to adopt if you’re married

In general, the ideal adoptive parents would be a married Malaysian couple who are 25 years old and above and are financially stable, but this is not the ultimate requirement. Even if you’re not married, there is no restriction for a single parent to apply to be an adoptive father or mother. But there are some unspoken restrictions on an adoptive father where he is not encouraged to adopt a child who is female. 

Here are the requirements to qualify as potential adoptive parents:

1. Either one of the parent must be a Malaysian citizen or a permanent resident. 
2.  Adoptive parents (including single adoptive parents) must be 25 years old and above and is 18 years older than the child.  
3. Married couples must be legally married. (If you are in a long term stable relationship with your partner and are planning to adopt, unfortunately, you need to be married to qualify.) 
4. Birth parents or the mother of the child must give consent to the adoption. However, adoption process can still proceed without consent through a court order or a social report from the Department of Social Welfare. 
5. Application must be submitted to the NRD at the district where the adoptive parents are resident. 

Additionally, foreigners can adopt as well provided that that reside in Malaysia (permanent resident). This can be seen in the case of Neil Duncan Gillies & Anor v Liew Mei Ling & Ors [2010] 4 MLJ 179

“There is no doubt that the applicant must be physically present in this country when the order is made. But he must go further and show that he is actually living in this country and has a base here where his work is though he does not intend to live here permanently. However, he need not show that he has no immediate intention of residing anywhere else. .... I confess however that I have arrived at this conclusion after some hesitation as in my view this is a borderline case.”

Now if you qualified, the next thing to know is...

2. There are 2 ways to adopt

There are usually two scenarios when adopting a child:

1. You’re already taking care of a child and want to adopt them
2. You want to find a child to adopt

In the first scenario, you’re already taking care of the child for some time. Usually, these are unofficial ‘adoptions’, where you take care of a relative or maybe even an abandoned child, and now you want to make it official, so to speak.

For this situation, one of the avenues of adoption is called departmental adoption or registrar adoption where you will need to register with the NRD for a de facto adoption application. De facto application means that you have a child in your custody and you have been taking care of them for at least 2 years. NRD defines de facto adoption in Section 6(1) of Registration of Aadoption Act 1952 (Act 253) as:

 “...child is in the custody of, and is being brought up, maintained and educated by any person or a married couple for a period of not less than two (2) years.” 

Under ROAA 1952, departmental adoption applies to both Muslim and non-Muslim adoption. The court needs to see a commitment from you, hence why prospective parents must care for the child for at least 2 years before an application can be made via the Social Welfare Department. Under ROAA 1952, the NRD has powers to summon, examine witnesses and interview adoptive parents as well as review reports from welfare department. It also has discretion to dispense consent with the best interest of the child in mind.

Departmental adoption would only grant parents custodial rights over the adopted child in which they have a responsibility to care, maintain and educate the child. The child would not be able to inherit any property belonging to his or her adoptive parents if they were to die without leaving a will (parents die intestate). 

For a Muslim adoption, Syariah law must be taken into account. Under this category, the child’s and their birth parents identity are not hidden. [This is so in the future, they can trace their lineage and not enter into an accidental incestuous relationship with a family member, or muhrim. (Note: Muhrim means a blood relative; usually someone you can’t get married to) We’re trying to avoid a Sinetron-series situation where someone is switched at birth and somehow got into a relationship with their half siblings.

As for matters involving inheritance, Fareid, rights of muslim inheritance law shall apply. Adoptive parents can set aside 1/3 of their estate as a gift, (Hibah) for for their adopted child.

The second scenario, where you want to find a child to adopt, only applies to non-Muslim adoptions.

Prospective parents can apply by a court order which means they go through a lawyer or a legal aid department to apply for adoption. The court would first appoint a child into your care. Think of it as a trial period and after 3 months of caring for the child, the adoptive parents will finally go through a court order in the sessions court or a high court.

Children who are going to be adopted must have an original birth certificate and is under 21 years old. After that, the application process must be submitted to the NRD Headquarters in Putrajaya. Under the Adoption Act 1952, a consent is needed as well from the child’s natural parents (birth parents) in order for the adoptive parents to make this application. 

Adoptive parents are responsible for the child’s well-being which means they are responsible to provide food, clothes and a home and if they fall sick, parents will tend to their care. They need to make sure the child goes to school if they are of the schooling age under to section 9 of AA 1952 where the rights, duties and liabilities of the adopted child is now on the adoptive parents.  

According to section 9(2) of AA 1952  the child will be entitled to inherit any property belonging to parent that dies intestate (dying without leaving behind a will) once he or she is officially adopted. Once the adoption is approved, the child’s birth certificate will be replace with a new one containing their adoptive parent’s name as their official parents.

Now that you know the process, get ready because…

3. Adoption can be a lengthy process

The process of adopting seems simple, but in some cases it can be a long, expensive and emotionally draining process. According to the NRD, the adoption process takes about 6 to 9 months. However, in some cases, complications may arise and some people might find less ethical and illegal ways to adopt. The impact of this has caused many children to be trafficked and sold at the borders of Thailand and other surrounding countries. This violates a number of laws and policies on human, sexual and labour trafficking to name a few. 

And when adopting a stateless children, you might have issues with getting them a citizenship. By right, all children born and legally adopted in Malaysia will be entitled for citizenship status as birth certificates will be given to them regardless of their ethnicity. Not having a birth certificate would stop the children from attending school, applying for MyKad (Identification card), secure a job, own property or even tie the knot (get married to their significant others). Although the process of children having Malaysian citizenship explained in NRD seems straightforward , but to be on the safe side, it is better to contact them directly.

[READ MORE:  The Malaysian government was sued by a 6 year old in 2014. Here's what happened ] 

[READ MORE: 5 unresolved legal issues Malaysia can put on the 2018 bucket list]

In reality, the whole adoption process will definitely be testing your patience at times. However, it is better to seek legal counsel so they can provide professional help that will specifically apply to your situation but it should not hinder you from adopting a child. Despite the doom and gloom, there are many successful cases to keep in mind.