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Legal Uncertainty Surrounds Surrogacy in Indonesia, Leaving Children’s Status at Risk
A 2026 study by Ladin, a legal scholar from the State Islamic University of Sayyid Ali Rahmatullah Tulungagung, reveals that surrogacy practices in Indonesia remain legally unclear, creating serious risks for the civil status and rights of children. Published in the Indonesian Journal of Society Development, the research highlights a growing gap between advances in reproductive technology and the country’s legal framework. The findings matter because they directly affect children’s access to identity, legal recognition, and essential public services.
Surrogacy—where a woman carries and gives birth to a child for another couple—is becoming more relevant globally due to rising infertility rates and advances in assisted reproductive technology. However, Indonesia has yet to establish clear legal rules governing the practice. As a result, families and children are left navigating a system that does not fully recognize modern reproductive realities.
Background: Technology Advances Faster Than Law
In Indonesia, civil law still relies on the long-standing doctrine mater semper certa est, which defines the legal mother as the woman who gives birth. This principle once provided clarity in traditional childbirth situations. Today, it creates confusion in surrogacy cases, where biological, gestational, and social motherhood can involve different individuals.
The study shows that many Indonesian couples pursue surrogacy abroad to bypass domestic legal barriers. However, once they return, they face administrative challenges when registering their child’s legal identity.
Social and cultural factors further complicate the issue. Religious values, ethical concerns, and differing public opinions contribute to resistance against surrogacy, making policymakers cautious about introducing new regulations.
Methodology: Combining Legal Analysis and Field Evidence
Ladin uses a qualitative research approach that combines legal analysis with real-world data. The study reviews Indonesian civil law, including the Civil Code, Marriage Law, and population administration regulations.
To understand how the law operates in practice, the research includes:
- Interviews with family law practitioners and notaries
- Observations at Population and Civil Registration Offices
- Case reviews of birth registration for surrogacy children
This mixed approach provides a comprehensive view of both legal theory and everyday administrative challenges.
Key Findings: Legal Gaps and Administrative Barriers
The study identifies several critical issues affecting children born through surrogacy:
- Legal vacuum: No specific regulation governs surrogacy in Indonesia
- Administrative delays: Birth registration can take 4–6 months
- Incorrect documentation: Initial birth certificates often list the surrogate mother as the legal mother
- Inconsistent procedures: Different regions apply different solutions, including court orders or adoption processes
- Limited legal recognition: Surrogacy contracts from abroad are not always valid under Indonesian law
Field data also shows a steady increase in surrogacy-related legal consultations over the past five years, indicating growing demand despite legal uncertainty.
One notary reported handling multiple cases annually involving Indonesian couples seeking legal clarity after pursuing surrogacy overseas. This trend highlights a mismatch between societal needs and legal readiness.
Impact on Children: Identity and Rights at Stake
The consequences of this legal uncertainty fall most heavily on children. Without clear legal recognition, children may face:
- Delays in obtaining birth certificates and national identification numbers
- Limited access to healthcare and education services
- Uncertainty in inheritance and guardianship rights
- Risk of administrative discrimination
In some cases, children cannot be registered in national health insurance systems due to missing identification documents.
The study emphasizes that these issues violate fundamental child rights, including the right to identity and legal recognition from birth. International frameworks, such as the Convention on the Rights of the Child, stress that these rights must be guaranteed without discrimination.
Legal Implications: Conflict Between Norms and Reality
The research highlights a fundamental tension in Indonesian civil law. While the law prioritizes legal certainty, it fails to address new realities created by medical technology.
Ladin explains that the current system forces biological parents to pursue legal workarounds—such as adoption or court rulings—to gain recognition. These processes are time-consuming, costly, and do not fully reflect the biological relationship between parents and child.
The lack of standard procedures also leads to inconsistent decision-making across regions, undermining public trust in the legal system.
Expert Insight
Ladin from the State Islamic University of Sayyid Ali Rahmatullah Tulungagung emphasizes that Indonesian civil law has not kept pace with technological change. The study argues that relying solely on traditional legal doctrines is no longer sufficient to address modern reproductive practices.
He notes that without clear and adaptive regulations, children will continue to face uncertainty in their legal status, placing them in a vulnerable position within society.
Real-World Implications: Urgent Need for Reform
The findings point to several urgent priorities for policymakers:
- Develop comprehensive regulations on surrogacy
- Establish clear procedures for birth registration and legal recognition
- Ensure consistency across administrative institutions
- Prioritize the best interests of the child in all legal decisions
The study also suggests adopting a more progressive legal approach—one that balances legal certainty with social reality and technological progress.
For Indonesia, addressing these challenges is not only a legal issue but also a matter of social justice and child protection.
Author Profile
Ladin, S.H., M.H. is a legal scholar at the State Islamic University of Sayyid Ali Rahmatullah Tulungagung. His expertise focuses on civil law, family law, and contemporary legal issues, including reproductive technology and child protection.
Source
Journal: Indonesian Journal of Society Development (IJSD), Vol. 5, No. 2
Year: 2026
DOI: https://doi.org/10.55927/ijsd.v5i2.15
URL : https://journalijsd.my.id/index.php/ijsd/index
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