There were 70,430 cases of “ illegitimate ” births between 1999 and 2003 to over 257,000 between 2000 and July 2008 ( around 2,500 born per month and 83 born per day ).

Of these , most cases were from the Malay- Muslim community , followed by the Indian and the Chinese (“ Does Illegitimacy Status of Children Matter ? A Review on Malaysian Perspectives ”, Meerah Gopal , International Journal of Applied Psychology , Vol . 5 , Issue 4 , 2015 ).

The Child Rights Coalition Malaysia reported in 2013 that over 234,000 children whose birth certificates don ’ t mention a father ’ s name – of which around 85,000 are Muslims .

A child ’ s legitimacy is of supreme importance amongst Muslims , including in Malaysia . “ Illegitimate ” children don ’ t have the legal right to lineage or the right to inherit their father ’ s wealth . Socially , “ illegitimate ” children are subject to discrimination and stigma from society and even ostracisation by family members (“ Curbing Child Marriage Amongst Muslims in Malaysia : Towards Legal Reform ”, Samuri , et al ., UUM Journal of Legal Studies , Vol . 13 , Issue 1 , 2022 ).

Furthermore , the National Registration Department ( NRD ) puts “ bin / binti Abdullah ” in place of the father ’ s name . It publicly labels the children as “ illegitimate ” by their surname .

Although people are more accepting nowadays of “ illegitimate ” children , basic educational access and healthcare rights , among others , can still be denied or taken away (“ Discrimination against an Illegitimate Child According to Law and Society ”, Roslan et al ., Current Legal Issues , Vol . 3 , 2021 ).

Overall , such continued stigma and discrimination is likely to impact these children mentally , psychologically , and emotionally severely .

Furthermore , if the child is legitimate , the husband ( as the biological father ) is also responsible for the child . However , if the child is “ illegitimate ”, the child ’ s custody solely belongs to the birth mother . This can be extremely taxing , financially speaking , to the mother .

In addition , although Malaysia is a signatory to the United Nations Convention on the Rights of the Child ( UNCRC ), we continue to reserve the right not to ratify Article 7 which concerns a child ’ s right to birth registration , right to a name and nationality ( as well to know and be cared for by their parents ).

The “ illegitimate ” child is often not registered immediately after birth to avoid stigma and discrimination .

The stigma associated with having an “ illegitimate ” child leads many parents to put their baby up for adoption or dumping . Between 2018 to 2021 , 443 baby dumping cases were recorded – of which only 149 were found alive while 294 died (“ Baby dumping still rampant ”, Sinar Daily , February 17 , 2022 ).

BY JASON LOH

AND

JUHI TODI

WHAT DETERMINES THE LEGITIMACY OF A CHILD ?

Under Section 112 of the Evidence Act ( 1950 ), a child is considered a legitimate child if he / she “ is born or conceived during the subsistence of a valid marriage where a married woman ’ s husband is determined as the legal father of the child .

If the parents are divorced , then the child must be born within 280 days after the marriage dissolved with the condition that the mother has not remarried within the period of time ” (“ Discrimination against an Illegitimate Child According to Law and Society ”, Ainur Nadhrah Roslan et al , Current Legal Issues , 2021 ).

Otherwise , he or she is considered a filius nullius or the son ( or daughter ) of “ nobody ” under the law .

Under Shariah law , a newborn baby is legitimised if they are born six lunar months ( 180 days ) after the marriage date . This is because , in Islam , the minimum period of gestation / pregnancy is 180 days .

Based on this , unmarried Muslim females only have a short window of about three months to get married for the baby to be considered legitimate .

The short three-month window of getting married becomes even shorter for girls under the legal age as they are required to get the Syariah court ’ s approval for marriage . It is concerning given the increasing numbers of unmarried underage girls getting pregnant .

Nearly 14 in every 1,000 underage Malaysian girls become pregnant every year .

Between 2005 and 2015 , over half a million children were recorded as being born out of wedlock (“ What ’ s in a name ? For Malaysian Muslims born out of wedlock , stigma , and alienation ”, South China Morning Post , September 3 , 2017 ).

This process is starkly different from the process applying to non-Muslims , wherein a child born out of wedlock can be legitimised after their parent ’ s marriage following birth :

• Under Sections 3 ( 1 ) and 4 of the Legitimacy Act 1961 – with the biological father marrying the birth mother later on ; or

• By adopting the child under the Adoption Act 1952 – where the adopted children assume all the rights of biological children of the adoptive parents . According to the common law , an “ illegitimate ” child is related only to their mother and has no relationship with the biological father .

‘ ILLEGITIMATE , CHILDREN OF CHILD MARRIAGES

UNICEF ( United Nations Children ’ s Fund ) defines child marriage as any formal marriage or informal union between two individuals where at least one individual is below 18 years old .

The marriage laws for Muslims in Malaysia are governed by the family law enactment of the respective states . In all states , the marriageable age for boys is 18 and for girls is 16 ( except Selangor wherein the marriageable age for girls is also 18 ). However , marriage of a person below the minimum age is allowed if permission is granted by the Shariah court .

As mentioned , a strong motivation for underage marriages concerns the legitimacy of the soon-to-be-born baby .

Additionally , adolescent females are more likely to have pre-term births ( i . e ., born too early – before the 37 weeks of pregnancy have been completed , World Health Organisation / WHO ).

A study at Hospital Tuanku Ja ’ afar Seremban , Negeri Sembilan , found that 15.9 per cent of teenage girls experience pre-term birth compared to only 5.4 per cent of non-teenage girls , a statistically significant decrease (“ Prevalence of teenage pregnancy in 2015- 2016 and its obstetric outcomes compared to non-teenage pregnancy : A retrospective casecontrol study based on the national obstetric registry ”, Nagandla & Kumar , Malaysian Family Physician , Vol . 15 , Issue 2 , 2020 ).

As can be seen , the probability of the child being born after 180 days post-marriage for teenage girls gets even smaller from both ends . The parents are married months into the pregnancy , and the child can be born preterm . This increases the probability of the child being considered “ illegitimate ”.

REMOVING THE “ ILLEGITIMATE ” TITLE

In 2021 , a motion entitled ‘ Motion to Protect the Rights of the Child and Abolish Gender Discrimination in Malaysian Laws ’ was filed by Charles Hector at the Malaysian Bar ’ s