Locita

Ketika Rahim Perempuan Dikomersilkan

WHAT? Gilaakk?, begitu kira-kira reaksi awal masyarakat yang terang benderang tidak sependapat dengan Jeremy Teti soal sewa rahim. Seakan pernyataan itu menantang Maha Pencipta bahwa penciptaan manusia bisa melalui kompromi. Bahwa perempuan hanya sebagai intermediary untuk melahirkan keturunan.

Syarat mutlak pertemuan sperma dan ovum bertemu sebagai proses pertama dari kejadian manusia. Begitu juga binatang, dianggap sebagai pemikiran vintage yang tidak fleksibel menerima perubahan.

Pertanyaan yang paling logis adalah perempuan mana yang mau begitu bodohnya mengomersialkan rahimnya untuk dieksploitasi? Mungkin di beberapa negara lain bisa ditemukan perempuan yang mau saja menyewakan rahimnya karena desakan ekonomi seperti di India, Thailand dan Amerika. Ternyata, justru meninggalkan dampak psikologi yang berat bagi perempuan yang menyewakan rahimnya.

Lagipula, secara historis,  negara-negara Eropa yang menjalankan praktek sewa rahim itu dilandasi permintaan pasangan suami istri yang telah berupaya untuk mendapatkan anak. Namun tidak bisa terwujud sehingga mendapatkan anak melalui sewa rahim dengan menanam ovum wanita dengan sperma suaminya di dalam rahim wanita lain dengan bayaran sejumlah uang atau secara sukarela. Akan tetapi bukan oleh permintaan pasangan yang bukan sebagai suami istri ataupun pasangan yang sejenis.

Memiliki seorang anak tidak sebatas menunggu 9 bulan 10 hari di dalam rahim kandungan perempuan, banyak perjuangan yang harus dilewati oleh sang perempuan yang mengandung. Sehingga membutuhkan sokongan finansial, moral, dan perhatian.

Tidak sebatas mengontrak dan membayar rahimnya lalu selesai. Ada waktu menyusui, yang dipenuhi dengan ikatan emosional antara ibu dan anak yang tidak bisa dipenuhi dan dilakukan oleh pelaku pasangan laki-laki sejenis, karena hal yang demikian bukanlah fitrahnya.

Lazimnya, sewa rahim dilakukan oleh pasangan suami istri yang ingin memiliki anak melalui ibu pengganti disebabkan beberapa alasan. Bisa karena seorang istri tidak memiliki harapan untuk mempunyai anak secara normal diakibatkan penyakit, infertilitas atau cacat.

Bisa juga karena perempuan yang tidak memiliki rahim akibat bedah pengangkatan rahim, perempuan yang tidak ingin berada dalam proses kehamilan–baik karena melahirkan dan menyusui. Ingin menjaga bentuk tubuhnya, perempuan yang telah mengalami menopause, hingga perempuan yang menyewakan rahimnya untuk mendapatkan bayaran.

Pertanyaan yang muncul kemudian, jika rahim perempuan bisa disewakan, apakah rahim perempuan bisa disamakan dengan benda? Lalu bagaimana status anak yang dilahirkan, apakah jenis anak tersebut (dalam KUH Perdata) termasuk anak yang lahir di luar perkawinan?

Bagaimana hak keperdataan anak tersebut? Siapa yang berhak disebut sebagai ibu kandung? Lalu bagaimana hubungan hukum antara perempuan yang menyewakan rahimnya dengan si penyewa? Dan akan banyak lagi pertanyaan-pertanyaan yang akan mengusik nurani masyarakat yang menentang sewa rahim ini.

Sewa rahim (surrogate mother/ibu pengganti) berdasarkan pengertian Black’s Law Dictionary adalah: 1. a woman who carries a child to term on behalf of another woman and then assigns her parental rights to that woman and the father; 2. a person who carries out the role of mother.

Definisi di atas dapat diartikan sebagai wanita yang menggunakan rahimnya untuk hamil di mana janin yang dikandungnya tersebut milik wanita lain. Setelah bayi lahir hak kepemilikan atau hak asuh bayi  diserahkan kepada wanita lain itu dan ayah dari bayi tersebut.

Berdasarkan Pasal 127 UU No. 36 Tahun 2009 tentang Kesehatan bahwa upaya kehamilan di luar cara alamiah hanya dapat dilakukan oleh pasangan suami istri yang sah dengan ketentuan: hasil pembuahan sperma dan ovum dari suami istri yang bersangkutan ditanamkan dalam rahim istri dari mana ovum berasal, dilakukan oleh tenaga kesehatan yang mempunyai keahlian dan kewenangan untuk itu, dan pada fasilitas pelayanan kesehatan tertentu.

Berdasarkan hal diatas yang diperbolehkan dalam hukum adalah proses “bayi tabung”, tetapi dengan syarat keduanya terikat sebagai suami istri. Jadi secara implisit di Indonesia belum ada aturan khusus yang mengatur tentang sewa rahim atau ibu pengganti.

Tepatlah kiranya praktek sewa rahim dilarang di Indonesia. Karena sewa-menyewa rahim tidak sebatas persoalan biologis semata, akan tetapi menyangkut kehidupan manusia. Ada hak yang harus dilindungi dan nilai kemanusiaan.

Kemudian terhadap kata “sewa” dalam sewa rahim, meskipun diatur dalam pasal 1338 KUH Perdata mengenai kebebasan kontrak, akan tetapi syarat sah perjanjian sewa rahim pun bertentangan dengan Pasal 1320 KUH Perdata.

Yaitu mengenai sebab halal yang bertentangan dengan nilai agama, kesusilaan, ketertiban umum dan terlebih lagi dalam perundang-undangan. Sehingga  kontrak tersebut dapat dibatalkan dan dapat dianggap tidak sah karena melanggar hukum positif yang berlaku (UU No. 36 Tahun 2009 tentang Kesehatan, Permenkes RI No.73/Menkes/PER/II/1999 tentang Penyelenggaraan Pelayanan Teknologi Reproduksi Buatan, dan SK Dirjen Yanmedik Depkes RI tahun 2000 tentang Pedoman Pelayanan Bayi Tabung di Rumah Sakit).

Hukum Islam pun memberikan aturan yang sangat ketat mengenai bayi tabung. Harus berasal dari pasangan suami istri serta tidak melibatkan pihak ketiga. Jika melibatkan pihak ketiga (sewa rahim, sperma atau ovum yang bukan berasal dari pasangan suami istri), maka fatwanya haram dan kedudukan anak tersebut adalah anak zina.

Untuk itu, dengan melihat dari berbagai aturan hukum, agama, nilai dan norma yang ada di tengah masyarakat; jelas kiranya bahwa sewa rahim tidak akan bisa mendapatkan tempat untuk diterima karena bertentangan dengan banyak hal.

Meskipun negara memberikan kebebasan terhadap setiap warganya yang diatur secara jelas dalam UUD 1945, selayaknyalah tuntutan kebebasan untuk kepentingan tertentu tidak mencederai nilai moral, agama, dan budaya negara kita. Apalagi menempatkan rahim perempuan untuk komersial, demi mendapatkan keturunan.

Hijriani Hadz

akademisi hukum, tinggal di Kendari

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Hijriani Hadz

akademisi hukum, tinggal di Kendari

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