1. What are the laws that govern the adoption of children in Malaysia?

The Adoption Act 1952 and Registration of Adoption Act 1952 (“ROAA”) are the key sources of law about adoption in Peninsular Malaysia.

*Meanwhile, the laws that govern the adoption of children in Peninsular Malaysia do not apply in Sabah and Sarawak.

2. What are the differences of the laws applied in Peninsular Malaysia?

Both applications under the Adoption Act 1952 and ROAA are of different nature and effect:-

Adoption Act 1952ROAA
Only applicable for non-MuslimsApplicable for Muslims and non-Muslims
Apply to the court for an adoption orderApply through the Registrar of JPN – self-registration
Need to show that the child has been in the applicant’s care for at least 3 consecutive monthsNeed to show that the child has been under the applicant’s care or custody for at least 2 years
Adopted child is legally considered as a child born to the adoptive parents in lawful wedlockAdoptive parent is only conferred with custodial rights over the adopted child
Both adopted child and adoptive parent have the right to inheritance under the Distribution Act 1958 and Small Estates (Distribution) Act 1955No right to inheritance under the Distribution Act 1958 and Small Estates (Distribution) Act 1955
New birth certificate will be issued without showing the word ‘adopted’A certificate of adoption (NOT birth certificate) will be issued showing that the child is adopted
A child who has been adopted under the ROAA can be readopted under the Adoption Act 1952A child cannot be readopted under the ROAA if the child has been adopted under the Adoption Act 1952.

3. What is the effect if the child is adopted under Adoption Act 1952?

Upon an adoption order being made, all rights, duties, obligations and liabilities of the birth parents or guardian, in relation to the future custody, maintenance and education of the adopted child shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adoptive parent’s lawful wedlock.

If the adopter or adopted child dies intestate, the right to inheritance under the Distribution Act 1958 and Small Estates (Distribution) Act 1955 is also transferred from the birth parents.

4. Who can be the applicant?

Basic Requirements of the Applicant

(a) The applicant, or in case of a joint application, one of the applicants:-

  • Has attained the age of 25 and is at least 21 years older than the child, unless the Court is satisfied there are special circumstances; or
  • Has attained the age of 21 and is a relative of the child{Relative means brother, sister, grandparent, uncle, aunt, whether by consanguinity (relationship by blood) or affinity (relationship by marriage}; or
    • Is the mother or father of the child {as a child who is born out of wedlock (the natural parents are not married to each other when the child is born) is illegitimate, one of the natural parents can apply under the Adoption Act 1952 to adopt his/her own biological child, either alone or jointly with her/his spouse}.

(b) The applicant must be residence of the Peninsular Malaysia:-

  • he/she must actually living in Malaysia;
  • he/she has a base here where he/she works;
  • he/she has resided in Malaysia for a sufficient duration;
  • No need to show he/she intends to live here permanently.

(c) Adoption order SHALL NOT be made if the sole applicant is a male and the child is a female, unless the Court is satisfied that there are special circumstances.

(d) In the case of joint application for adoption order, the Court will only make the order authorizing the applicants if they are married spouses.

5. What is the requirement in respect of the adoptive child?

(a) The child to be adopted must be:-

  • an unmarried person under the age of 21 (includes a female under the age of 21 who has been divorced);
    • a resident of Peninsular Malaysia;
    • holding any identification documents;
    • continuously in the care and possession of the applicant for at least 3 consecutive months immediately preceding the date of the order.

(b) The applicant must at least 3 months before the date of the order inform an officer of the Social Welfare Department of the State of his intention to apply for an adoption order in respect of the child.

(c) Consent of a parent or guardian of the adoptive child must be obtained. However, the Court may dispense with any consent required if it was proven that the child was abandoned, neglected, persistently ill-treated or the consent was unreasonably withheld.

6. Will the adoptive child obtain citizenship if he/she is not originally a citizen even though the adoptive parents are citizens?

The answer is ‘no’ under the Adoption Act. However, the applicant can apply for a change of country of birth upon the adoption order being made. (Note that the change of country of birth is different from a change in citizenship)

The adoptive parents need to be aware of the situations where the adoptive child was born overseas. The decision of the Federal Court in May 2021 highlighted that children born outside Malaysia and out of wedlock to a Malaysian father and a non-Malaysian mother will not have the right to Malaysian citizenship. Moreover, section 17 of Part III of the Second Schedule of the Federal Constitution clearly states that illegitimate children are to follow the citizenship of the mother.

In addition to the abovementioned decision of the Court, children born outside Malaysia to a non-Malaysian father and a Malaysian mother in lawful wedlock will not be entitled to the citizenship of Malaysia. Nevertheless, the hearing for leave to appeal on this decision is set on 14th December 2022, stay tuned for the decision of the Federal Court!

7. Which court shall the applicant apply for adoption order?

The applicant may make an application for an adoption order at the Court with the rightful jurisdiction. Meanwhile, both the Session Court and High Court of Malaya have the rightful jurisdiction in adoption cases.

8. What are the court proceedings for the adoption order?

Whenever an application for an adoption order is made to the Court, the Court shall appoint a guardian ad litem (usually a Social Welfare Officer) of the child. The duties of the guardian ad litem is to investigate as fully as possible all the circumstances of the child and the applicant. There are some questions the guardian ad litem needs to take into consideration:-

(a) Whether the statements in the form of application are true and complete, particularly as regards the date of birth and the identity of child;

(b) Whether there is any payment or other reward in consideration of the adoption has been agreed upon, and whether it is consistent with the welfare of the child;

(c) What insurance, if any, has been effected on the life of the child;

(d) Whether it is desirable for the welfare of the child that the Court should grant an interim order or to impose any particular terms in granting an adoption order.

As soon as the guardian ad litem (usually a Social Welfare Officer) has been appointed, the Court shall fix a time for the first hearing of the application. The Court shall issue a notice addressed to the respondents and cause such notice to be served on them.

The guardian ad litem, after his visitations to the applicant’s home, will then prepare a report for the Court to decide whether or not to grant an adoption order. At the 2nd hearing, the Court will grant an adoption order if it is satisfied it is in the best interest of the child in doing so.

9. Who shall attend the hearing of the adoption application hearing?

Personal attendance of all parties in the application [applicant(s) and respondents] is compulsory unless it is exempted by Court’s order.

Generally, the respondents are the persons in whose consent is to be obtained, namely: –

(a) The adoptive child;

(b) The guardian ad litem of the child;

(c) Parent or guardian of the child;

(d) Spouse of the applicant who is not also an applicant.

However, the person shall not be made respondent if the person’s consent is dispensed with according to section 5 of Adoption Act 1952.

10. What will the Court consider before granting an adoption order?

The Court before making an adoption order shall consider whether or not:-

(a) That the natural parent or guardian has given consent to the adoption order;

(b) That both the applicants and respondents understand the nature and effect of the adoption order;

(c) That the order if made will be for the welfare of the child (best interest of the child), having regard to the child’s age and understanding ability;

(d) That no applicant/parent/guardian has agreed to receive any payment or other reward in consideration of the adoption.

11. Will the birth certificate of the adopted child be replaced by JPN?

Yes, the adoption order will contain a direction to the JPN (Jabatan Pendaftaran Negara) to register the adoption and to issue a new birth certificate to the adopted child as replacing the original birth certificate issued under the Births and Deaths Registration Act 1957.

The natural or adoptive parent(s) who are in possession of the original birth certificate of the adopted child will be directed to surrender it to JPN.

12. Will the word ‘adopted’ or any work similar appear in the new birth certificate?

No, the word ‘adopted’, ‘adopter’ or ‘adoptive’ shall not appear in the birth certificate.


Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.