Introduction

Should the sins of the parents be carried by their child? Imagine this: your parents committed
a mistake in their lives when you are still unborn and now the State is discriminating you
instead of your parents. Is this how the concept of justice is to you? One might say that this is
a hypothetical situation and it will never occur but the reality is, this is the concept on the issue
of legitimacy of child right now under the laws of Malaysia.
Illegitimate child, or more commonly known as bastard is defined as someone who was born
to parents who were not married.
1
In legal language, illegitimate child is also called bastardus
nullius est filius, aut filius populi which bears the meaning of child of no one, child of the
people. Another Latin term which were frequently used together with illegitimate child is
bastardus non potest habere hseredem nisi de corpore suo legitime procreatum, which means
a bastard can have no heir unless it be one lawfully begotten of his own body.
The concept held within this Latin term is integrated in common law of England and it is held
by the courts for centuries that a child born out of wedlock shall not gain the inheritance right
from his natural father but only from his mother. This is due to the fact that it is hard to prove
the natural father of the child while the female party who undergoes pregnancy is a proof itself
that she is the natural mother of the child under common situation (precluding the situation of
surrogate mother).
Malaysia which practises common law of England also accepts such understanding in our
Evidence Act 1950
2
. According to S. 112 of the Act, the fact that any person was born during
the continuance of a valid marriage between his mother and any man, or within two hundred
and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof
that he is the legitimate son of that man, unless it can be shown that the parties to the marriage
had no access to each other at any time when he could have been begotten. An implied meaning
of such provision is that for any person who is born out of wedlock which is registered under
the Law Reform (Marriage and Divorce) Act 1976
3
will not be regarded as the legitimate child
of the couple.


1
Longman Exams Dictionary, Pearson Education Limited, 2006, p 107
2
Act 56
3
Act 164
Implication of Illegitimacy under the Laws of Malaysia
Generally there are three major issues arises from illegitimacy which are regarding the basic
right of the child. The laws in Malaysia somehow create a barrier to safeguard the minimal
rights of the illegitimate child but it is still far behind the basic rights granted if compare to a
legitimate child. Thus, when a comparison is done between the rights of a legitimate child and
an illegitimate child, it is quite obvious that the laws discriminate the latter party.
A. Right to be supported
One of the most prevalent concerns regarding illegitimate child will be the right to be
supported by his natural father. According to Child Act 2001
4
, its preamble states that the
family is the unit to provide support to the children who are the members of it. This
basically impose a duty of care on the parents or those who are capable of supporting the
children within their family to do so. However, for the question of either the illegitimate
child is considered as a family member for his natural father or not, the answer is most
probably negative as the law does not recognize the natural father as the one of the legal
parent who is in custody of the child. Reason being is that the natural father of an
illegitimate child will not be able to register his name in the birth certificate of the child
born out of wedlock. However, it is at least presumed that the illegitimate child will be
part of the family for his natural mother as the mother will be able to register herself on
the birth certificate of her child since it is beyond any doubt that the female who deliver
the child is the mother for him.
However, it does not mean that the obligation to support the illegitimate child will lie
solely on the mother. According to section 3(2) of the Married Women and Children
(Maintenance) Act 1950
5
, the court has the power to order any person who neglects or
refuses to maintain his illegitimate child to make a reasonable monthly allowance decided
by the Court. This is somehow a protection granted by the Malaysia law that both of the
natural parents bear the same responsibility to support their child even though the status
of the child is illegitimate.



4
Act 611
5
Act 263
B. Right to know his biological father
Another serious question regarding illegitimate child is that is the child entitled to know
his biological father if there is no one who admit to be his. In this issue, the Malaysia court
seems to take a more humane approach even though this right is not mentioned in any part
of the statutes in Malaysia. In the case of Lee Lai Ching v Lim Hooi Teik
6
, the court ordered
the male defendant who is the alleged biological father of the child to undergo a DNA test
in order to clarify the situation even when the defendant initially refuses to do so. In that
case, the court referred to Article 8 of the Federal Constitution of Malaysia and the United
Nations Convention on the Rights of the Child (CRC). Article 8 of the Federal Constitution
safeguards the equality of every individual in Malaysia. According to Article 7 of the CRC,
the child had the right to know his or her parents and Article 3 mentions that the childs
best interests shall be the primary concern. Thus, it is held that due to equality concern
granted to every individual in Malaysia and also to ensure the welfare of the child, it is for
the best interest of the child that the defendant to be ordered to undergo a DNA testing in
order to determine the paternity of the minor.

C. Right to inherit
Another implication from such legal status granted to child born out of wedlock is that he
will not be entitled to inherit from his natural father if his father died intestate. Currently
the law of Malaysia only covers the inheritance rights of illegitimate children from and to
his natural mother and his legitimate child but not others. This is incorporated into section
11 of the Legitimacy Act 1961
7
and other than this no other statutes in Malaysia touch
about the inheritance right of illegitimate child from other parties. An extension in
interpretation of such provision is that the inheritance rights of illegitimate child from his
natural father will not be transferred to his legitimate child. In addition, section 11 of the
Act
8
also set a limitation on the inheritance right of the illegitimate child to inherit from
his mother by stating that the child could only inherit if and only if the mother who died
intestate did not leave any legitimate issue surviving her. Therefore, it seems like the best
way to ensure the illegitimate child could get a share from the property owned by his
parents is by having the parents setting up a will while they are still alive.

6
[2013] 4 CLJ 107
7
Act 60
8
Ibid.
However, all these limitation in inheritance is not imposed on the legitimate child. Section
6 of the Legitimacy Act 1961 states that the legitimate child could inherit from his parents
who died intestate. This is in line with section 6 of the Distribution Act 1958
9
which states
that the legitimate child who is referred to as issue in this Act
10
will be entitled to some
share of the property left by the deceased.




















9
Act 300.
10
Section 3, Act 300.
A comparison with the Laws in United States
The United States (U.S) which practises partly common law in their judicial system was also
using the same concept regarding bastardy in the 18
th
Century. The laws did not recognize the
illegitimate child as an individual who share the same legal standing with the legitimate child.
The Court defended such discrimination in the case of Strahan v Strahan
11
on three grounds:
(1) encouraging the institution of marriage; (2) discouraging the birth of illegitimate children;
and (3) security to title of property. The worst of all is that initially the illegitimate child could
not even inherit from his mother who dies intestate.
However, the situation changed in the case of Heath v White
12
. In that case, for the first time
the U.S court ruled that an illegitimate child can inherit from his mother. Then, after more than
100 years, the court took a huge progress in elevating the status of an illegitimate child by
prohibiting a state from forbidding an illegitimate child from inheriting property from his
biological father when there are also legitimate children
13
. The Supreme Court in the case of
Levy posed a penetrating question on why should the illegitimate child be denied rights merely
because of his birth out of wedlock?
Still, nothing else changed the status of illegitimate child more than the landmark case of
Gomez v Perez
14
which mark the history in the progression of human rights owned by the
illegitimate child. In that case, Mr Perez and Ms Gomez who are not married to each other had
a daughter and Mr Perez tried to evade his duty to support the child even though it is proved
that he is the biological father of the girl. The trial judge first ruled in favour of Mr Perez as
the laws in Texas and the common law only require the natural father to support his legitimate
child but not the illegitimate one.
However, Ms. Gomez who was unsatisfied with the ruling brought this case again on the
ground that it is against the Equal Protection Clause of the Fourteenth Amendment of the U.S
Constitution. The U.S Supreme Court granted Ms Gomezs petition for certiorari and held that:
[O]nce a State posits a judicially enforceable right on behalf of children to needed
support from their natural fathers, there is no constitutionally sufficient justification for

11
304 F.Supp. 40 (1969).
12
5 Conn 228 (1824).
13
Levy v Louisiana, 391 U.S 68 (1968)
14
409 U.S 535 (1973)
denying such an essential right to a child simply because its natural father has not
married its mother. For a State to do so is "illogical and unjust."
15


In addition to that, in Glona v. American Guarantee and Liability Insurance Company
16
, the
Supreme Court held that to deny recovery by the mother for the wrongful death of her
illegitimate child was likewise in violation of the equal protection clause of the 14th
amendment. Another case which has the similar decision of the court will be Lalli v Lalli
17

which stated that classifications based on illegitimacy... are invalid under the Fourteenth
Amendment if they are not substantially related to permissible state interests.
Therefore, it could be concluded that the U.S Court took the approach to make no distinction
on legitimate and illegitimate child as the is purely unjust in imposing a double standard on a
child who has no control on his birth parents and the preventive measure on discriminating the
illegitimate child has proven to be helpless in curbing the social issue of adultery and
fornication.












15
Gomez, 409 U.S. at 538 [quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)].
16
391 U.S 73 (1968)
17
439 U.S 259 (1978)
Should the Discrimination Be Erased by the Government?
According to a survey done by the Philippines Judge Alicia B Gonzalez-Decano
18
, 196 out of
280 respondent answered no when they were asked the question are you in favour of
eliminating the distinction of illegitimate and illegitimate children? The reasons given
includes the fear of confusion created in relation to successional rights, this proposal will
contribute to the disintegration of the family, it would encourage illicit relationships and etc.
Other rational reasons includes promoting general moral and the general welfare; encouraging
marriage; deterring sexual relationships out of marriage; preventing disruption of marriage.
However, an interesting counter argument could be found in the article written by Chavanne,
John. H
19
. The author stated that the laws are generally based on classifications of persons or
property and are inherently unequal to some extent. However, such categorization is not in
violation of equal protection as long as such classification is deemed necessary to achieve the
objective of the law, but note merely reasonable related to the object of the legislation
20
. One
shall not use the excuse of achieving the goal of laws and impose a certain classification which
often links with discrimination. In fact, the court and the government should examine the
necessity of such classification before drafting the laws as a discriminatory law is obvious in
violation of the spirit of law which offers equal protection to everyone.
In an U.S case of Weber v Aetna Cas & Sur. Co.
21
, the Court announced that the differentiation
between a legitimate and an illegitimate child is a discrimination which ran counter to the legal
systems concept that legal burdens bear a relation to individual wrongdoing. In addition, the
interest of protecting legitimate family relationships and the regulation and protection of the
family unit could not be achieved even if such discrimination exists.
Therefore, looking back at the question, it is arguably felt that the current law in differentiating
illegitimate child and legitimate child is nowhere helpful in curbing the adultery and fornication
issues in Malaysia. Even though the original intention of the drafter might be the same as the
reasons given by the respondent in the said survey mentioned above, it is obvious that the
illegitimate child who is innocent is stigmatized and left inferior when compared to the
legitimate child. Thus, it is time for a law makers in Malaysia to take good look in our current

18
Judge Alicia B Gonzalez-Decano, Should the Distinction between Legitimate and Illegitimate Children be
Eliminated in the Philippines?, International Legal Practitioner, 2000, p 68.
19
Chavanne, John. H, Constitutional Law Equal Protection of Illegitimate Children, Loyola Law Review,
Vol. 17, Issue 1 (1970), p. 170
20
Ibid, p 177.
21
406 U.S 164 (1972)
laws and make certain amendment to them to ensure it is not against the equal protection clause
enshrined in Article 8 of our Federal Constitution.























Possible action steps to legitimize bastard
In order to wipe out all social stigma attached to an illegitimate child, the government shout
take the first initiative in allowing someone in loco parentis to decide the lawful parents for the
bastard in his birth certificate. Such action will allow the natural father of the child who are not
married with the mother of the child to voluntarily register his name as the father of the child
on the birth certificate.
Besides, our government can also refer to the Texas Family Code which allows
acknowledgement by the father as his own child through a piece of writing signed by the father
with the presence of a witness. This will be a great help in minimizing the troubles on the
natural father to acknowledge his illegitimate child with the current laws in Malaysia. In
addition, the court suit filed by the illegitimate child when his natural father died intestate will
foreseeably be reduced if such measure is allowed to be practised in Malaysia.
Other than that, the laws in Malaysia are good enough to safeguard the rights of the legitimate
child, illegitimate child, and the parents. Not to mention that the laws in Malaysia do not make
the illegitimate status of an illegitimate child permanent as section 3 of the Legitimacy Act
1961
22
allows the legitimation of a child by subsequent marriage of his parents.










22
Supra 7.
Conclusion
Nowadays, it is no longer useful for law makers to impose a certain discrimination on the
illegitimate child in the hope of deterring extra-marital relationships as the increasing number
of baby dumping cases and illegitimate children are the strongest proof to it. One might even
argue that one of the reason for baby dumping is due to the shame felt by the parents or more
specifically the mother who gave birth to an illegitimate child. Instead of letting those young
lives go wasted, it is better for the laws to take a new approach in minimizing or even wipe out
totally the social stigma attached to the illegitimate child.
By wiping out those social stigma, one must also be clear that this is not to promote sexual
relationships before marriage but to ensure the innocent illegitimate children will not be
stigmatized by the society and the laws. It is absurd enough to let the adulterers go free but
punishing the children of their. Since the current laws is no deterrent in preventing such matters,
it is rational and reasonable for the law makers to abolish the clauses which differentiate
legitimate and illegitimate children in our current law. Only with that the true spirit of Article
8 of the Federal Constitution will be lived.