WALI NIKAH BAGI PEREMPUAN YANG LAHIR DARI SURROGATE MOTHER/IBU PENGGANTI (Studi Hukum Islam Dan Hukum Positif Indonesia)

Abstract

This study explores the legal status of lineage and marriage guardianship for daughters born through a surrogate mother, within the framework of Islamic law and Indonesia's positive legal system. The rise of assisted reproductive technologies, particularly surrogacy, has triggered significant legal challenges, especially concerning lineage clarity and guardianship rights. According to the majority of Islamic scholars and the fatwas of the Indonesian Ulema Council (MUI), a child born via surrogacy is affiliated with the woman who gives birth, not with the biological donors, meaning the marriage guardian is derived from the surrogate or appointed through a judge if no legal guardian exists. Similarly, Indonesia’s positive law adheres to the principle that the legal mother is the woman who gives birth, thus influencing the determination of the marriage guardian. Since surrogacy is prohibited under Indonesian law, this creates legal uncertainty regarding the child’s status and guardianship. This research aims to offer a clearer understanding of the legal implications of surrogacy and serve as a valuable reference for both the public and legal practitioners in addressing related issues.