Onto Regulating Surrogacy by elsamalta

Opportunities Ahead in Social Policy ELSA Malta would like to thank…

After months of hard work, co-operation, planning, drafting and excitement, our ‘Onto Regulating Surrogacy’ policy paper has come to a conclusion, and we can finally say that we are on the map when it comes to proposing policy. ELSA Malta remains committed to be pro-active on several heated issues that have a social impact. We will be there voicing our opinion, proposing legislation and discussing ideas. This policy paper is a clear example. This is the kick-start. Many people are behind such a project, and without them this would surely not have been possible. Our thanks goes to: ELSA Malta President: Nigel Micallef Director for Legal & Social Policy: Nick DeBono Director for Legal Publications: Nicole Sultana Policy Paper Leader & Editor: Nicole Sciberras Debono Policy Paper Team: Nicole Portelli, Maria Magro, Mariah Mula Proof-Reading: Lisa Marie Cassar Design: Daniel Vella ELSA Malta’s Legal & Social Policy Organising Committee Nisa Laburisti - NL Our special thanks goes to Dr. Thomas Bugeja LL.D who reviewed our policy paper. Dr. Bugeja also provided suggestions and met our team to mentor them in the best way possible. On behalf of the ELSA Malta Social Policy Office, we hope that you enjoy reading our paper, take the time to evaluate our suggestions, and lastly to follow us and support us in our aim - to always be #pro-active! Thank you.

Table of Contents ABSTRACT

DEFINITIONS

INTRODUCTION

SURROGACY IN DEVELOPED JURISDICTIONS

1. An Insight into ECHR Cases related to Surrogacy 1.1 The Raison d’ Être of the ECtHR when Dealing with Cases Concerning Surrogacy 1.2 The ECtHR’s Focus on the Possible Consequences of Its Deliberations 1.3 The Consequences of ECtHR Judgments Relating to Surrogacy on Domestic Law 1.4 ECtHR Jurisprudence Relating to Surrogacy Applies Also to Same Sex Couples 1.5 Issues Which Have Failed to Be Tackled by the ECtHR 1.6 What Keeps Obstructing the Possibility of Implementing an International Treaty Regulating Surrogacy? 2. The American and Australian Perspective The United States’ take on Surrogacy Australia’s position on Surrogacy

11 12 14 15 17 18

SURROGACY IN MALTA

1. A more local understanding 2. A historical overview of reproductive rights 3. Rights of the Child 4. Legal Issues Pertaining to Surrogacy

24 25 27

CONCLUSION

BIBILIOGRAPHY

19 19 19

Table of Legislation and Statutes Maltese Law The Constitution of Malta The Embryo Protection Act (2012) French Law French Penal Code Council of Europe Conventions European Convention on the Adoption of Children European Convention on Human Rights United Statesâ&#x20AC;&#x2122; Law American Bar Association Model Act Governing Assisted Reproductive Technology, 2008 Uniform Parentage Act, 2002 United Nations Conventions Convention on the Rights of the Child International Conventions Hague Convention on the Protection of Children and Co-operation on International Adoption 1993

Table of Cases European Court of Human Rights Cases Mikulic v. Croatia, App. no. 53176/99 (ECHR, 7 February 2002) Jaggi v. Switzerland, App. no. 58757/00 (ECHR, 13 July 2006) Schalk and Kopf v. Austria App. no. 30141/04 (ECHR 24 June 2010) S.H. v. Austria, App. no. 57813/00 (ECHR, 3 November 2011) Koch v. Germany, App. no. 497/09 (ECHR, 19 July 2012) X and Others v. Austria, App. no. 19010/07 (ECHR, 19 Feb 2013) Gross v. Switzerland, App. No. 67810/10 (ECHR, 14 May 2013) Labassee v. France, App. no. 65941/11 (ECHR, 26 June 2014) Mennesson v. France, App. no. 65192/11 (ECHR, 26 June 2014) In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988) Dennis v Pradchapet [2011] Fam CA 123 Ellison v Karnchanit [2012] Fam CA 602

Onto Regulating Surrogacy ABSTRACT The principle objective of this policy paper is to give an overview of the current situation regarding surrogacy in Malta, whilst also giving a clear outlook on what the potential outcomes could be were surrogacy to be regulated under our legislation. Our aim as authors, on behalf of ELSA Malta, is to propose a policy paper, which would enthuse policy makers into considering the entire spectrum when it comes to regulating surrogacy, and taking into consideration the legal arguments displaced throughout. The policy paper uses France as an example of a Member State of the Council of Europe which prohibits surrogacy, but which has an abundance of cases under the jurisdiction of the European Court of Human Rights (ECtHR), of which justify the resort to surrogacy. This is done with the hope of urging any legislators who would be referring to this policy paper to exemplify the decisions taken up by the ECtHR, and apply them to our local legislation; as opposed to that which is done by France. Moreover, research is extended beyond the borders of Europe and looks at how surrogacy is tackled in the United States and Australia, two other jurisdictions which provide interesting jurisprudence that ought to be considered as a point of reference. As most Western couples resort to surrogacy in developing jurisdictions such as India or Thailand, exploitation of women is a key issue that emerges when tackling surrogacy. One of the aims of this policy paper is to encourage the legislators to incorporate it into national legislation in order to highlight better the rights and duties of the surrogate mother. If Western couples had the alternative of opting for surrogacy locally, rather than having to abscond to jurisdictions that allow it, the exploitation of women in such jurisdictions would be undoubtedly decreased. This policy paper seeks to show the effects from both sides of the coin, discussing the advantages of having surrogacy regulated on a domestic legislative manner, whilst also discussing any disadvantages, whether economic, psychological, or social. The argument goes beyond looking at the resort to surrogacy at face value, but delves further into implications which are often relative to particular situations and difficult to generalise. As authors of this policy paper, we ultimately aspire that our research, arguments and conclusions will be fruitful, and effectual enough to influence legislators to tackle the issue further.

DEFINITIONS Surrogacy: the process of giving birth as a surrogate mother or of arranging such a birth. Traditional surrogacy: This is when a surrogate mother uses her own ovum, which is consequently fertilised by the intended father’s sperm 1 . This is done by artificial insemination2. In this case the child’s biological mother is the surrogate mother. Gestational surrogacy: This is when the surrogate mother carries the intended parent’s genetic child which is conceived through IVF 3 . There is no genetic link between the surrogate mother and the child. Surrogate mother: a woman who helps a couple to have a child by carrying to term an embryo conceived by the couple and transferred to her uterus, or by being inseminated with the man's sperm and either donating the embryo for transfer to the woman's uterus or carrying it to term. Intended parents: These are the couples or in some cases, individuals who wish to beget a child with the help of the surrogate and bring up the child after his or her birth. There are various situations due to which a couple or an individual may be forced to choose surrogacy for begetting a child and thus become an intended parent, some of which include infertility, medical conditions, genetic problems and even social circumstances. Oocyte: an immature female germ cell that gives rise to an ovum after two meiotic divisions. Gametes: a mature sexual reproductive cell, as a sperm or egg, that unites with another cell to form a new organism.

2 3

A. Nakash & J. Herdiman, ‘Surrogacy’ (April 2007) Journal of Obstetrics and Gynaecology 246251 ibid. ibid.

INTRODUCTION With the increase of use of Assisted Reproductive Technique (‘ART’), those wishing to overcome infertility have sought different methods other than adoption or IVF, which leads us to surrogacy. Although surrogacy in itself is not a relatively new reproductive practice4, it has nevertheless become a more prevalent phenomenon over time. However, since it is such a sensitive topic, it has been subject to great controversy between different social groups, which arises mainly due to the social, legal and ethical problems that accompany surrogacy. It is elemental to discuss surrogacy in today’s day and age, where the world has been experiencing development in equality rights. Surrogacy is, in most cases, used as a means to procreate when a couple has no other means to have genetic children, and its regulation and decriminalization would possibly pave way to further reproductive rights and procreative liberty. There is a conflict between the right to have a family and the need to have a family, and in many cases these two overlap such that the former complements the latter, as the legislator would not have made the right to have a family a fundamental one if it was not necessary to the public. However, in many instances, the need to have a family surpasses the right to have a family, and because of this, surrogacy has been attached with a negative stigma and has not been backed up by much social support or approval as of yet. When it comes to the persistent need to have a family, which is common amongst many couples, the issue on what kind of couples can seek surrogacy arises, along with the issue of whether the reason behind the intended parents’ option for surrogacy should be disclosed in their application for surrogacy, and if this should eventually, affect or even determine whether such a couple would be entitled to go ahead with the procedure. The couples who would normally opt for surrogacy are infertile couples. These are couples who are physically unable to reproduce naturally (in some cases this may be due to a medical condition), that is without the use of ART. One cannot exclude homosexual couples, who may be considered as socially infertile and for whom the process of surrogacy is the only hope for them to have their genetic children. With regard to same-sex couples there are two extremes: in some jurisdictions such couples are able to have a surrogate mother to bear their child, whilst in other jurisdictions such couples cannot even adopt a child. Those who are against surrogate motherhood and other ARTs may argue that in using such techniques, these couples are meeting their desire to have children which are genetically their own rather than their need and right to have a family, and their reasoning would be that the latter can be fulfilled by means of adoption. Thus they may argue that such couples are selfish in

Directorate General for Internal Policies, 'A Comparative Study On The Regime Of Surrogacy In EU Member States' (European Parliament 2013) <http://www.europarl.europa.eu/studies> accessed 15 September 2015.

putting the surrogate mother through the psychological trauma of giving up her child and putting the child through the trauma of having a â&#x20AC;&#x2DC;third parentâ&#x20AC;&#x2122; involved. However, it may be argued that real egoism occurs when fertile couples, who have no physiological problems having children naturally, use surrogacy (or other ARTs) at their convenience. Should such couples who opt for surrogacy without any medical or social reasons (such as a mother who does not want to bear a child in order to not step down from her career) be allowed to proceed with surrogacy or would this add to the negativity which is commonly associated with it? If certain couples are prohibited from benefitting from surrogacy, would this amount to an infringement of rights? Each case should be evaluated individually, taking into account the particular circumstances. It would be impractical to decide which reasons behind the application of surrogacy are valid and which are invalid and it would be difficult to form an exhaustive list of such reasons because this would mean predicting all possible situations that may arise. The facilitation of surrogacy, as other ARTs and biotechnology, involves the investment of large sums of money and the state may be limited in its resources. Thus it may resort to measures to limit the number of surrogate pregnancies, such as background checks on both the intended parents and the surrogate mother, similar to those done in the adoption procedure in order to determine whether or not such persons are deemed fit for the surrogacy procedure. But does the state have the right to take such measures, or should it be more freelance to avoid possible allegations of discrimination between persons? However, such measures may be important to determine whether such persons are ready to abide by their contractual obligations. For instance, after interviewing and examining a surrogate mother (this could be done by an agency which meets up the surrogate mother and the intended parents as in the UK), one would know whether she is strong enough to give up her baby without raising any legal issues against the parents, even after she has formed an emotional bond with the baby. In the case that the surrogate mother does not want to give up her baby, it would be considered as a public policy as she is faced with a conflict between her contractual obligation to transfer parental authority to the intending parents and the parental rights over her child. Other contractual issues include negligence on part of the surrogate mother with regard to her health which may affect the health of the baby, and what actions can the intending parents take in such a case. Another question to be considered is, if the baby, through no fault of the surrogate mother, is born with a disability, can the intending parents refuse to be his parents? If so, does parental responsibility fall onto the surrogate mother, and would the former intended parents have to pay some kind of maintenance? In view of these multiple legal issues, it is important that before surrogacy is legalized, all aspects are tackled in great detail. Apart from the legal perspective, surrogacy has been under ethical debate for a rather long time, (including debates from the religious perspective) yet, most questions about what should be done remain unanswered or ignored.

Every individual State deals with surrogacy differently, however due to globalization, it has become evident that uniformity, even if minimal, is required in order to prevent the several legal issues which arise when such consistency is non-existent.

SURROGACY IN DEVELOPED JURISDICTIONS 1. An Insight into ECtHR Cases related to Surrogacy One of the problems concerning surrogacy is that its regulation is inconsistent and varies in different jurisdictions - in some countries it is explicitly prohibited whereas in most other countries surrogacy remains completely unregulated. Most countries in Europe, such as Denmark, Greece, Ukraine and the United Kingdom allow surrogacy, perhaps partially, namely in cases where the surrogate mother is not paid beyond any ‘reasonable expenses’; while in other European states surrogacy is either prohibited or unregulated. In countries where surrogacy is allowed, medical clinics providing such a service have been established and as a result of globalisation, the international mobility is greater than ever before. Through the use of the Internet, one could get in touch with such clinics and enter into an international surrogacy arrangement. Due to these facts and such ease, the desire of couples to have their ‘own’ baby has become an international matter5. Various cases have been heard before the ECtHR in relation to the right of surrogacy or otherwise, and the implications this brings with it. As illustrated in some French cases, albeit the fact that the Court tolerates France’s decision to ban any form of surrogacy on ethical and moral grounds, in practice, it considers it necessary to restrict the effects and consequences of this refusal with regard to the respect for private and family life, and consequently, obliging France in such cases so as to at least acknowledge the paternal relationship of the applicant’s children in such cases. More generally, such judgments illustrate the method the Court uses so as to impose the liberalisation of prohibited practices in national law without these being guaranteed by the Convention. 6 Indeed, such liberalisation is generally considered to go contrary to existing norms in International law. On the 26th of June 2014, the Court delivered a long awaited judgment on two cases of surrogacy involving French couples, namely, ‘Mennesson v. France7’ and ‘Labassee v. France8’. The facts of the two cases are similar, and the Court’s ruling is identical in both cases. In 2000 and 2001, the Mennesson couple on the one hand, and the Labassee couple on the other, obtained children through surrogate mothers following an oocyte donation in the United States, whereby surrogacy and oocyte donations are offered with a remuneration. The wives were forty-five and forty-nine years respectively. On the American birth

Teresa Schön, Sabine Tagwerker and Magdalena Zabl, International Surrogacy Arrangements And The Establishment Of Legal Parentage (2015). Gregor Puppinck and Claire De La Hougue, 'ECHR: Towards The Liberalisation Of Surrogacy: Regarding The Mennesson V. France And Labassee V. France Cases' [2014] Revue Lamy Droit Civil 78. Mennesson v. France, Application no 65192/11, Council of Europe: European Court of Human Rights, 26 June 2014. Labassee v. France, Application no 65941/11, Council of Europe: European Court of Human Rights, 26 June 2014.

certificates, the applicants were indicated as the fathers and mothers of the children but they did not obtain the same transcription on the French civil records. The French Court of Cassation had stated that it is “contrary to the principle of the unavailability of the status of persons, an essential principle of French law, to give effect with regards to kinship, to a convention on pregnancy for someone else” or invoke the apparent status (possession d’état) to establish kinship.9 The Court specified that the refusal of transcription, “which does not deprive children of the maternal and paternal relationship that the Californian law recognizes them, and does not prevent them from living with the Mennessons in France, does not violate these children’s right to respect for private and family life under Article 8 of the Convention ... nor the best interests of the children guaranteed by Article 3 Paragraph 1 of the Convention on the Rights of the Child.”10 In both cases, the applicants complained to the European Court of Human Rights that on the detriment of the best interests of the child, they were unable to obtain recognition in France of parent-child relationships that had been legally established overseas, quoting Article 8 of the European Convention of Human Rights (ECHR) and Article 3 of the Convention on the Rights of the Child (CRC). Secondly, the applicants argued that their children had been placed in a discriminatory legal situation compared with other children when it came to exercising their right to respect for their family life, quoting Article 8 and 14 of the ECHR.

1.1 The Raison d’ Être of the ECtHR when Dealing with Cases Concerning Surrogacy The ECtHR examined surrogacy from the point of view of the applicant’s children rather than from that of the applicants themselves, acknowledging the prohibition of this practice of surrogacy in theory, but limiting its scope especially when there is a biological link with one of the parents. Consequently, these judgments are deemed to have serious influential consequences on national law, as well as European law and International law in general. The Court firstly considers the interest of children born through surrogacy as above the interest of society to forbid such a practice. The fact that the Court, like the States, is placed in front of the ‘fait accompli’ by existing ‘families’, leads it to consider the facts not from the point of view of the prohibition of surrogacy but from the adults’ situation and even more from the children’s position. It is important to note and highlight the fact that the Court tolerates the refusal of the principle of surrogacy but restricts its significance by appearing to distinguish it according to the existence or non-existence of a biological link between the child and one or both commissioning adults. Thus, it may be said, that the Court allows surrogacy to be prohibited but restricts the impact and consequences of its prohibition.

ibid. ibid.

Indeed, the prohibition of surrogacy is possible in principle. In the ‘Mennesson case’, the Court does not directly reach a decision on the prohibition of surrogacy with regards to the Convention since this wasn’t the issue of the case. Nevertheless, the Court makes note of the diversity of legislature in Europe and admits, ‘that resorting to surrogacy raises delicate ethical questions’.11 According to the Court’s judgment, States have: ‘an ample margin of appreciation, concerning not only the decision on whether or not to authorise this method of procreation but also on whether or not to recognise the line of kinship between children who are legally conceived by surrogacy and the intended parents.’12 The Court considers that the applicants’ situation questions the right to respect to private and family life guaranteed under Article 8 of the ECHR. The Court notes that on the one hand, the applicants ‘do not distinguish themselves in their ‘family life’ in the usual sense of the word’,13 and on the other hand that ‘private life requires that everyone can establish details of his human identity’.14 In so, doing, the Court extends Article 8 by developing the idea of a ‘right to identity’ present in both the case of ‘Jaggi v. Switzerland’15 and the case of ‘Mikulic v. Croatia’.16 This right of identity is in fact based on the 1989 CRC in which the ‘States Parties undertake to respect the right of the child to preserve his or her identity’.17 This commitment immediately follows that of that guaranteeing children ‘as far as possible, the right to know and be cared for by his or her parents.’18 After having observed the absence of a European consensus on the legitimacy of surrogacy, which ‘raises delicate ethical questions’, 19 the Court considered that consequently, France may prohibit this ‘method of procreation’.20 It indicated that it does not intend to ‘question as such’ 21 the ‘choice of ethics of the French legislature to prohibit surrogacy’,22 but rather to judge the consequences. The Court thus claims to spare the principle of prohibiting surrogacy while handing out a ruling on the practical consequences of this prohibition in the case in point. In other words, it separates the standard from its sanction to be able to judge the sanction of the prohibition, but not frontally attack the ban itself, leaving each country at liberty to carry out a prohibition. The Court is of the opinion that the reason for the prohibition of surrogacy depends on the ‘perception of the problem’,23 it would be a choice of ethics, relative and contingent as the absence of a consensus

11 12 13 14 15 16 17 18 19 20 21 22 23

ECHR, 26th June 2014, n. 65192/11, Para. 79. ECHR, 26th June 2014, n. 65192/11, Para. 79. ECHR, 26th June 2014, n. 65192/11, Para. 45. ECHR, 26th June 2014, n. 65192/11, Para. 46. ECHR, 13th July 2006, n. 58757/00. ECHR, 7th February 2002, n. 53176/99. CRC, Article 8. CRC, Article 7. ECHR 26th June 2014, n.65192/11, Paras. 78-79. ibid. ECHR, 26th June 2014, n. 65192/11, Para. 84. ECHR, 28th June 2014, n. 65192/11, Para. 85. ibid.

confirms, while the effects of this prohibition would in fact be the only concrete and objective reality, accessible to the Court’s rational judgment.24 Thus, while considering not legitimate, but only ‘conceivable’, 25 that France wishes to discourage its citizens to use surrogacy abroad, the Court implicitly accepts this practice and ensures that the effects of its refusal is to be limited and in conformity to its interpretation of Article 8 of the Convention.

1.2 The ECtHR’s Focus on the Possible Consequences of Its Deliberations Overlooking the issue of prohibiting surrogacy, the Court focused its judgment ‘in concreto’ on the consequences of this prohibition, specifically in the case of the consequences of the refusal of transcription of the nationality on the family life and private life of the applicants guaranteed under Article 8.26 Indeed, in this case, the Court deemed the effects of the prohibition of surrogacy as infringing the private life of the children. With regard to family life, the Court noted that the applicants ‘do not show that the impossibility of having a parent-child relationship recognized under French law prevents them from enjoying the right to respect of family life in France’.27 In other words, the concrete effects of the refusal to recognise the parent-child relationship under French law do not exceed the margin of appreciation which the States have with regards to the respect given to family life. The judge reached this observation after having observed in particular that the French authorities take into account the relationship established abroad in the applicants’ daily life. Therefore, it was concluded that Article 8 has not been violated from the point of view of respect for family life. With regard to private life, on the contrary, the Court concentrated on examining the consequences of the refusal of the transcription on the children’s private life and considers them out of proportion. 28 The Court highlighted a contradiction in the fact that ‘without ignoring that [the children] had been identified elsewhere as the children of the first applicants, France nevertheless denies them this quality in the legal system’.29 Indeed, the Court considered that ‘such contradiction violates their identity within the French society’.30 The Court regarded a contradiction between the law and the practice where the application of the judicial principle of non-recognition of the effects of surrogacy is subdued in practice by a tolerance. According to the formal logic of the Court, neither the principle nor the practical tolerance in themselves violate identity, but their coexistence is the cause of such a violation. In a similar way, the Court moreover held that the children are placed in a situation of ‘troubling uncertainty’ about the possibility for them to be recognised as French citizens and this is caused by the confusion created by French law. In fact, this uncertainty results from the latest comments by the Government arguing that children could obtain French

24 25 26 27 28 29 30

ibid. ECHR, 26th June 2014, n.65192/11, Para. 92. ibid 6. ECHR, 26th June 2014, n. 65192/11, Para. 99. ibid 6. ECHR, 26th June 2014, n. 65192/11, Para. 92. ibid.

nationality under the so-called ‘Taubira’ circular of the 25th January 2013.31 The Court further noted that the refusal of the authorities even infringes the children’s inheritance rights. The Court concluded that under French law, the effects of refusing to recognise a parent-child relationship influences children’s rights to have their private life respected ‘which implies that everyone can establish the essence of his or her identity, including their relationship’. 32 The Court observed the interference and considered that it “raises an important issue on the compatibility of this situation with the best interests of children and that should guide every decision concerning them”33 but did not yet conclude a violation at this stage of analysis. Although the Court talked about the “serious issue”34 it did not indicate if these interferences alone have attained a level of gravity that is sufficient to breach the Convention. Undoubtedly, what will enable the Court to find a violation in a conclusive way is the existence of a biological link between father and child. The reasoning developed by the Court allows it to distinguish cases according to the existence of a biological link. Indeed, this existence of a biological link is crucial. It must be noted that the Court first examines the children’s situation and sees whether there is any interference with their rights, without taking into account their biological relationship with the father. Only then, in a distinctive manner, does the Court observe that ‘this analysis takes on particular importance when, as in this case, one of the intended parties is also the child’s biological parent’.35 The Court, noting the existence of such a biological link with the father, emphasized ‘the importance of a biological relationship as part of an element of each person’s identity’36 and asserted that it is contrary ‘to the interests of a child to deprive him of a legal bond of this nature while the biological reality of this link has been established and both the concerned parent and child claim its full recognition’. 37 Consequently, the impossibility of establishing a father-child relationship is sufficient to conclude that France went beyond its margin of appreciation and thereby violated the respect due to the private life of children. Thus, when a biological link exists between the child and one or both commissioning parents, the Court clearly states that this link should be able to be recognised and legally established.

1.3 The Consequences of ECtHR Judgments Relating to Surrogacy on Domestic Law Evidently, these judgments have several consequences on domestic law and at the same time, also on European and International Law. The Court carefully clarifies that it does not directly adjudicate on surrogacy as such. These judgments do not intend to oblige

31 32 33 34 35 36 37

ECHR, 26th June 2014, n. 65192/11, Para. 74. ECHR, 26th June 2014, n. 65192/11, Para. 99. ECHR, 26th June 2014, n. 65192/11, Para. 99. ibid. ECHR, 26th June 2014, n. 61592/11, Para. 100. ibid. ibid.

France, for instance, to legalise surrogacy, but they already implicitly indicate that this practice is not necessarily contrary to human rights particularly women’s and children’s rights. The Court accepts the very principle of this practice. Consequently, it does not consider it to be intrinsically contrary to dignity and human rights. In this regard, the Court considers that this practice finds its place in the context of human rights, like other procreation techniques and as such may give rise to a subjective right.38 As such, as was pointed out in the ‘S. H. v. Austria’39 judgment, refusing to authorise surrogacy already constitutes an interference with the right to privacy just like prohibiting other MAP techniques. Subsequently, the request of an individual regarding the inaccessibility to surrogacy in France would not be inadmissible rationae materiae by the Court, nor rejected as constituting an abuse of rights,40 but would compel France to justify its legislative choice, in its principles as in its implementation. Therefore, nothing in the judgment opposes the fact that the Court’s jurisdiction evolves towards a progressive restriction of the States’ competence to restrict access to surrogacy. On the contrary, these judgments lay the foundations for such a change in liberal jurisprudence whereby States must justify every limitation, and consequently every infringement of rights and freedoms. Henceforth, these judgments demand that France puts an end to the ‘contradiction’ and a ‘juridical uncertainty’ which, according to the Court, children born abroad through surrogacy are placed in.41 With regards to children born through surrogacy and conceived using gametes of one or both intended parents, the French ECHR judgments demand that France agrees to legally recognise the biological relationship which links the child to one or both intended parents and eventually reduces the possibility of refusing to recognise the foreign status to the only parent without a biological link. Indeed, the Mennesson and Labassee judgments condemn the French pattern of dissuasion of procreative tourism through surrogacy and oblige France to abandon such practice, at least in part. At this moment, these judgments may encourage evasion of the law since they deprive France of the main means for ensuring respect for public order. However, they do not prevent another deterring and sanctioning mechanism from being instituted as long as it does not disproportionately violate the respect for private and family life and the other provisions of the Convention. Therefore, nothing prevents the existing penal apparatus from being reinforced or strengthened even if it means adding other sanctions apart from imprisonment and fines, which are least suited to this case in point. Surrogacy already falls within several propositions of the French Penal Code such as ‘the incitement of the parents or one of them to abandon a born or unborn child, made either for pecuniary gain, or by gifts, promises, threats or abuse of authority’42 and the ‘wilful substitution, false representation or

38 39 40 41 42

ibid 6. ECHR, S.H v. Austria, 3rd November 2011, n. 57813/00. Convention ECHR, Art. 17. ibid 6. Penal Code, Art. 227-12.

concealment which infringes the civil status of a child’. 43 In this case in point, criminal proceedings against the Mennessons were abandoned because the acts were committed abroad. However, the criminal judge may have jurisdiction if one of the acts constituting the infraction was committed in France (for example a preparatory letter to the contract or a bank transfer) or if the consequence of the infraction was ‘felt’ in France, 44 which was evidently the case in the Mennesson and Labassee cases. Moreover, the French judge is declared competent if the facts are punished by the legislation of the country where they were committed or if it has to do with a crime.45 Knowing that surrogacy falls perfectly under the definition of the sale of a child, the legislator could qualify surrogacy as a crime. As discussed by Dr. Puppinck, a Doctor in Law and Director of the European Centre for Law and Justice, these judgments undermine the French legal framework: what can the effective impact of the prohibition of surrogacy on the French territory be if the Court now compels France to endorse surrogacy abroad? With such a contradiction, this time very real, in the French legal framework, the legalisation of surrogacy in France will quickly be demanded to put an end to what will be presented as hypocrisy which consists in accepting abroad what is denied on home soil, and as a discrimination reserving surrogacy for couples who are wealthy enough to go to California or Ukraine. Nobody doubts that ‘made in France’ surrogacy will be presented as more ethical than ‘made in India’ surrogacy and its legalisation will therefore be seen as progress.46

1.4 ECtHR Jurisprudence Relating to Surrogacy Applies Also to Same Sex Couples This jurisprudence is equally applicable to the case of children conceived through surrogacy upon the request of same sex couples, the Court having judged that they were as capable of leading a normal family life as couples of different sexes,47 and that there is no ‘evidence to show that a family with two parents of the same sex could in no circumstances adequately provide for a child’s needs.’ 48 Furthermore, these judgments also include a provision with strong potential: the assertion according to which Article 8 ‘implies that everyone can establish the essence of his identity’ 49 is likely to carry the Court’s jurisprudence very far in the context of the multiplication of individual identity claims. Finally, such cases prevent the anonymity of a gamete donation from being questioned by specifying that the refusal to recognise the biological relationship is contrary to the child’s interest when

43 44

45 46 47 48 49

Penal Code, Art. 227-13. Cass. Crim., 6th June 1991, n. 90680.755, Bull. Crim. n. 240, and Cass. Crim., 29th January 2002, n. 01-83122, Bull. Crim. n. 13. Penal code, Art. 113-6. ibid 6. ECHR, Schalk and Kopf v. Austria, 24th June 2010, n. 30141/04, Paras. 94 and 99. ECHR, 19th Feb 2013, n. 19010/07, Para. 142. ECHR, 26th January 2014, n. 65192/11, Para. 99.

‘the child and the concerned parent demand full recognition’.50

1.5 Issues Which Have Failed to Be Tackled by the ECtHR It may be concluded that the difficulties encountered by surrogate-born children are real, and the Court has taken this into consideration. On the other hand, the Court has at no point made mention of the situation of the genetic mother of the children, nor that of the biological (surrogate) mother. They are completely ignored by the Court and reduced to an instrumental function. It seems that the Court failed to grasp the problem of surrogacy as a whole, or rather did not want to. It regarded the matter solely from Western couples point of view. With reference to the Mennesson and Labassee judgments, the Court claims that it is not making a ruling on the ‘choice of ethics of the French legislator’ but only ‘verifies if the national judge has duly taken into consideration the need to conserve a proper balance between the interest of the community in order that its members submit to the choice made democratically and the interest of the applicants – including the best interest of the children– fully to enjoy their rights to respect for family and private life’.51 For the Court, the authorities’ legitimate interest is targeted at the respect of positive norms and not the respect of interest and values that this norm intends to protect. In weighing these matters, the Court opposes the formal respect of the law to the interest of the applicants. It hides the reason for this democratic ethical choice – protecting the most vulnerable. However, France tends to ensure equilibrium between the competing interests of commissioning adults, children and women involved. The balancing carried out by French law cannot be reduced to an opposition between a formal respect of the law and that of the family situation, between legalism and humanitarianism.52 The Court has swept the interests of the State regarding the protection of the weakest and made prevail isolated individual cases over the general rule, which will result in exposing a greater number of vulnerable people to a practice that violates their human rights. Looking only at the position of the applicants, the Court ignores the sordid market that underlies and helps support the growth of a very lucrative industry, if not respectful of human dignity. It thus contributes to the development of globalised liberalism, denying national sovereignty and ultimately imposes uniformity and ethics by levelling down.53 That being said, the issue concerning the conventionality of surrogacy remains. Indeed, this practice, even tolerated by the ECtHR, goes against well-established standards of International law, in particular the provisions of the Convention relating to International

51 52 53

Koch vs. Germany case (ECHR, 19th July 2012, n. 497/09); Gross v. Switzerland (ECHR, 14th Mary 2013, n. 67810/10). ECHR, 26th June 2014, n. 65192/11, Para. 84. ibid 6. ibid.

Adoption, the Convention on the Rights of the Child and its Optional Protocol on the Sale of Children. Both the Hague Convention on the Protection of Children and Co-operation on International Adoption54 and the revised European Convention on the Adoption of Children,55 require that the consent of the parents should not have been obtained in return for money or compensation of any kind and that the consent of the mother should have been given only after the birth of the child. The Optional Protocol defines the sale of children which applies perfectly to surrogacy as “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other.”56

1.6 What Keeps Obstructing the Possibility of Implementing an International Treaty Regulating Surrogacy? The main obstacle to the conclusion of resorting to an international treaty of some sort is the lack of political willpower knowing that reproductive tourism is a market worth several billions of dollars, quickly implantable in poor countries. Due to such, it would probably mean waiting for a generation and numerous tragedies, and for surrogate-born children to be old enough to express themselves and to prosecute those who sold and bought them, intentionally depriving them partially or totally of their biological link and finally of their dignity of human beings born ‘free and equal in dignity and rights.’57 Incongruously, the principal reason as to why such legal impediments arise can be viewed as a vicious cycle. Due to the fact that Western legislation is rather inconsistent on properly and sufficiently regulating surrogacy, it inevitably leads those wishing to make use of surrogacy for the right reasons to resort to poorer countries, which lack the legislation thereof, hence succumbing to abuse. The situation would possibly be different if surrogacy were regulated rather than prohibited in every jurisdiction, as couples that would really wish to have a child through surrogacy could still do so easily without being prosecuted.

2. The American and Australian Perspective A more holistic view could only be achieved if one would refer to positions external to the borders of Europe. Australia and the United States were chosen as they are thought to provide yet another model worth looking at, as they indicate the advantages and disadvantages of regulating surrogacy within a particular jurisdiction.

The United States’ take on Surrogacy Surrogacy in the USA is regulated on a State-by-State basis,58 however the situation is rather inconsistent and complicated. The laws range from non-existent in the majority of

54 55 56 57 58

Hague Convention, 29th May 1993, art. 4. 27th November 2008, art. 5. Optional Protocol to CRC, art. 2(a). ibid 6. All Things Surrogacy™, 'Surrogacy Laws By State' (2015) <http://allthingssurrogacy.org/surrogacy-laws-state-by-state/> accessed 15 November 2015.

States, to permitting both altruistic and commercial surrogacy arrangements in other states, whilst other states criminalise all forms of surrogacy. New York, the District of Colombia, Kansas and Michigan prohibit and criminalise all forms of surrogacy,59 whilst Nevada only allows contracts of surrogacy between heterosexual couples.60 States, such as Michigan, which prohibit surrogacy regardless of the persons’ sexual orientation, usually fine persons committing this offence from $10,000 up to $50,000, with the possibility of imprisonment ranging from two to five years, respective to that particular State. It is important to clarify however, that whilst many States have not promulgated a specific law for surrogacy, when certain cases arise related to the matter, most States make use of the Uniform Parentage Act.61 One particular state, which is known for its pro-active movement towards surrogacy, is California.62 This state constantly puts into force both altruistic as well as commercial surrogacy contracts through the use of pre-birth orders and surrogacy contracts which would have been founded before conception and solidified through writing. These pre-birth orders allow the intended parents to claim parentage rights over the child once he or she is born. This pre-birth order is applicable both to parents that have a genetic link to the child through the use of IVF, as well as those parents who opt for surrogacy with no biological link whatsoever. Although California presently has no legislation regulating surrogacy, it makes use of the Uniform Parent Act (UPA) when cases concerning surrogacy arise, so as to be able to interpret them accordingly. California’s lack of legislation reflects their acceptance of surrogacy agreements. The UPA63 is a legislative enactment that strives to determine the parentage of a child, as well as other paternity actions or those related to child support. One of the most important articles in this enactment, which was revised in 2002, is Article 8, which addresses gestational surrogacy agreements. The UPA has been adopted by numerous American states, however only few have included Article 8, which refers to the fact that gestational surrogacy agreements can be made enforceable in a court of law if that court approves them beforehand. In order for the court to approve them, numerous clauses have to be fulfilled, such as ‘a home study of the intended parents’, which must be conducted by a child welfare agency in order to ensure the well-being of the future child. The Act also provides for the intended parents to ask the court for an order designating the parentage of the child in question, pre or post birth.

59 60 61 62

ibid. ibid. ibid. British Surrogacy Centre, ‘Legal Issues with Surrogacy’ <http://britishsurrogacycentre.com/legalissues> accessed 10 September 2015. The National Conference of Commissioners on Uniform State Laws, <http://www.uniformlaws.org/Act.aspx?title=Parentage%20Act> accessed 10 September 2015.

After the controversial case of Baby M,64 Congress attempted to pass legislation, which would restrict further surrogacy agreements. The first Bill which was entitled ‘the Surrogacy Arrangements Act of 1989’ pursued to impose criminal sanctions on any person who ‘knowingly makes, engages in, or brokers a surrogacy arrangement’. However, this Bill did not attract many followers and failed to progress further than the House Committee on Energy and Commerce. A following Bill was introduced entitled the ‘Anti-Surrogate-Mother Act of 1989’ which sought to criminalise all forms of surrogacy, whether they be altruistic, gestational or commercial. However yet again, this Bill failed to attract support and was struck in the House Committee State on the Judiciary. Presently, no other federal legislation has been attempted to legislate the issue of surrogacy, leaving states to tackle the issue to their own liberty, whilst others rely on the Uniform Parentage Act for guidance. The American Bar Association (ABA) formed the Model Act Governing Assisted Reproductive Technology65 in 2008 which expressly deals with two approaches to surrogacy agreements. The first alterative follows on the UPA and requires most of the points required also by the UPA for enforceable gestational surrogacy arrangements such as judicial preapproval, a thorough home check of the intended parents by a child welfare agency and other residency requirements. In the second approach, the need for judicial preapproval is removed in self-executing contracts, something which is sought after by many who engage in such contracts. The latter approach also requires meeting up to certain criteria for the surrogate mother in order for her to perform birth, such as the mother having to be more over 21 years old, or having experience of giving birth. Moreover she must have medical insurance, and must have completed a physical and mental exam to ensure the wellbeing of both her and the baby. A very important criterion in the second approach is that the baby must have genetic link to one of the intended parents, thus one of parents must have provided gametes for the embryo. The ABA Model Act’s second alternative is a feasible model, with enough requirements and protections to ensure that the legislation corresponds

In the case of Baby M, in 1988, Mr. and Mrs. Stern wanted to have a child but were unable to do so due to several complications. Mrs. Whitehead desired to become a surrogate mother in order to help couples such as the Sterns, thus she offered to be artificially inseminated by Mr. Stern’s sperm and given $10,000 compensation. A contract was drawn were Mrs. Whitehead was to terminate her maternal rights after birth so that Mrs. Stern could thereafter adopt the child. However, Mrs. Stern found that giving away the baby caused unbearable sadness and became desperate to reclaim the baby she has given birth to. She begged the Sterns to give her the baby for a week, which they agreed to avoid her resorting to suicide or self-harm. However, the Sterns only received the baby four months after the child was located at Mrs. Whitehead’s parents’ home. The Sterns sued in order to obtain permanent custody of the child and Mr. Stern was awarded permanent custody of the child. However, the New Jersey Supreme Court reversed this decision as the $10,000 fee given to Mrs. Whitehead was seen as connected to the child’s adoption. The court also said that surrogacy contracts violate public policy as the child’s best interests which are given paramount importance are not seen to, since the natural parents decide in advance of the birth of the child who is to have custody of the latter. The court found that the child would be better suited with the Sterns and granted visitation rights to Mrs. Whitehead. Model Act Governing Assisted Reproductive Technology (1st edn, 2008) <http://apps.americanbar.org/family/committees/artmodelact.pdf.> accessed 15 September 2015.

to public policy and all parties are protected, including the child. With a large number of couples suffering from infertility and a rising demand for alternative reproductive methods, legislative silence is evidently no longer an option66.

Australia’s position on Surrogacy Like in the United States, in Australia, each State and territory has its own legislation regarding the regulation of surrogacy. In all territories there are strict rules and requirements relating to how the procedure of surrogacy can be conducted and how the agreement could be entered into, with the exception of the Northern Territory, where there aren’t any laws concerning surrogacy. On one hand, Australian laws allow ‘altruistic’ surrogacy, meaning the kind which doesn’t receive any monetary compensation other than that related to reasonable medical expenditure. On the other hand, commercial surrogacy, which is typically remarked as ‘compensated’, is prohibited.67 In New South Wales, Tasmania, Queensland and Victoria, any person, regardless of their sex, relationship or sexual orientation, can be an intended parent. Distinctively, within the other different States and the Australian Capital Territory (ACT), solely heterosexual married, factual couples, or unmarried women, are eligible to be recognised as intended parents. Requirements in Tasmania, Victoria and Western Australia include that in order for surrogacy to be enabled and legitimate, the surrogate must have given birth to at least one child beforehand, and in all states, except the ACT, the surrogate must be at least twentyfive years old. Interestingly enough, although most jurisdictions require that there be a medical reason as to why a couple would resort to surrogacy, other jurisdictions such as those of New South Wales, Tasmania, Queensland or Victoria, find merely a social reason acceptable, as in the case of same-sex couples.68 An interesting stream of Australian cases reflect the reason behind a rather negative impression on surrogacy, especially when couples are forced to travel to other jurisdictions in order to legally resort to surrogacy as a method of procreation. Couples who resort to having a child through surrogacy but come from a state whereby it is criminalised, more often than not resort to such countries where surrogacy is legal, such as in poor countries like Thailand or India, where women often choose to become surrogate mothers for the financial compensation it brings with it. This would still remain illegal in the respective jurisdiction of the couple, hence why several cases have been brought up to deal with any

A. Paige Miller, 'The Silence Surrounding Surrogacy: A Call For Reform In Alabama' (2015) 65 Alabama Law Review <http://www.law.ua.edu/pubs/lrarticles/Volume%2065%20Issue%205/Issue%205/Miller_13751391.pdf.> accessed 15 September 2015. Human Rights Laws Centre, ‘Regulating Surrogacy in Australia’, <http://hrlc.org.au/regulatingsurrogacy-in-australia/> accessed 10 September 2015. The Sydney Morning Herald, ‘Should Commercial Surrogacy be legal in Australia?’, <http://www.smh.com.au/comment/should-commercial-surrogacy-be-legal-in-australia20150514-gh1ead.html> accessed 10 September 2015.

legal issues that arose thereafter. More often than not these concern parentage, as in the case of Ellison v. Karnchanit69 and similarly in the case of Dennis & Pradchapet.

The case concerned twins born as a result of a commercial surrogacy arrangement undertaken in Thailand. Such is still considered to be illegal in Queensland. The intended parents could not present evidence to the court for a parental order not to expose themselves to criminal sanctions. Thus, they were given a certificate pursuant which gave them privilege in respect of selfincrimination, thus to speak freely about the children without fear of prosecution. Despite the illegality of the surrogacy agreement, the court ordered that the applicants have shared parental responsibility for the children and that the male applicant be declared a parent of both children. In Ellison’s case, twin boys were born in Thailand as a result of the transfer of an embryo formed from Mr. Ellison’s sperm, and eggs from an unknown donor source. The issue of parentage was a significant issue in the case as the children were brought to Australia under the care of Mr. and Mrs. Ellison, who were not the legally recognised parents of the children, although Mr. Ellison was named as their father on the birth certificate. In this case, the court had concluded that the surrogate was not married or in a de facto relationship at the time the artificial conception procedure was carried out. Since the child was not the child of the birth mother’s de facto partner, the question therefore arose as to whether the male applicant, who was genetically related to the child, was a ‘parent’. Justice Ryan, regardless of the facts of the case related to parentage, decided in favour of the welfare and interest of the child, as this outweighed everything else. In order to preserve public policy and discourage surrogacy arrangements, an adoption order was withheld.

SURROGACY IN MALTA 1. A more local understanding After many years of debate, the Embryo Protection Act (2012) was enacted in order to regulate Assisted Reproduction Techniques (ART). The legislator had two options: either to make the issue a liberal one and let it be regulated by medical professionals or else to restrict the issue by means of a law. The latter was chosen in 2012, prohibiting surrogacy, and the situation is still the same nowadays. In fact before it was enacted, there was disagreement in the House of Representatives as the Opposition proposed that in the extreme cases where the biological mother is ill or has had a stroke, a surrogate mother should be allowed to bear the children of the former. Hon. Chris Said, Justice Minister at the time, argued that this would serve as a basis for surrogacy. George Vella (at the time, a shadow foreign minister) argued that there is nothing wrong with having an embryo implanted into a woman who was willing to make the sacrifice, or rather, favour. He also argued that surrogacy in such cases would avoid the women from going abroad and from risking to be legally prosecuted.70 In 2014, the Minister for Social Dialogue, Consumer Affairs, and Civil Liberties Helena Dalli confirmed that the ban on surrogacy was not to be removed and announced that Malta would have to abide by an ECtHR decision if this ban was to be contested. However in August 2015, as the government was evaluating and analysing the IVF law, Nisa Laburisti (NL) encouraged the government to take into consideration the introduction of: surrogacy with a restriction on commercial surrogacy; embryo freezing; the obscurity of sperm donors and the chance of bartering ova and semen with overseas banks.71 As in all other issues, there are those who are in favour and those who are against surrogacy. The most obvious category of the population that is in favour of surrogacy consists of those persons, who, for some reason or another cannot have children themselves. However, rather unfortunately, it is these infertile couples that choose to remain silent on their position on surrogacy due to the stigma it is attached with. Dr. Deborah Schembri Tabone, who, after writing her thesis on surrogate motherhood took a position against this controversial issue, divided this category of people into four sub-categories: infertile couples, homosexual couples, fertile couples and single parents. Infertile couples are those for whom it is physically or physiologically impossible to naturally have children such as women who have had their uterus surgically removed due to

Matthew Vella, 'No Agreement On Surrogacy For Embryos Of Sick Mothers' MaltaToday (2015) <http://www.maltaoday.com.mt/news/national/22876/no-agreement-on-surrogacy-for-embryosof-sick-mothers-20121123#.VfbN9xGqqko> accessed 15 September 2015. Tim Diacono, 'PN, PL Women Branches Clash Over Embryo Freezing, Surrogacy' MaltaToday (2015)<http://www.maltatoday.com.mt/news/national/56312/pn_pl_women_branches_clash_over _embryo_freezing_surrogacy#.Vkhm98agnIW> accessed 15 September 2015.

cervical or uterine cancer, or women whose uterus is not functional and cannot carry a child. An obvious solution in such a case would be adoption. However there are couples that wish to have their own genetic children, and this is where surrogacy is a solution to some. Back in 2005 Schembri Tabone argued that ‘assisted reproduction gives infertile heterosexual couples what they are entitled to have naturally i.e. children who are genetically their own.’72 The Oxford English Dictionary defines the phrase ‘entitled to’ as to ‘give (someone) a legal right or a just claim to receive or do something.’ Thus one may argue that she is implying that one has the right to have their own genetic children – the right to procreate and reproduce. But is there such a right? If so, does the prohibition of surrogacy by the 2012 Act violate this right?

2. A historical overview of reproductive rights The first time reproductive rights were recognized was in the Teheran Conference on Human Rights in 1968, which acknowledged the ‘rights to decide freely and responsibly on the number and spacing of children and to have access to the information, education and means to enable them to exercise these rights.’73 It was during the World Conference on Population (1994), which took place in Cairo, that reproductive rights were crystallised. The aim of this conference was to help couples and individuals attain their reproductive aspirations and give them the option to have children as they wished. However, surrogacy was not part of the programme of the Cairo conference – it was neither legalised nor prohibited. It can be argued that surrogacy enables those otherwise unable to ‘achieve their reproductive goals...and have children by choice.’74 The Universal Declaration of Human Rights drafted by the United Nations states in Article 16 that ‘men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.’ A similar provision is found in the Constitution of Malta, in Article 32, which states that each person in Malta is entitled to ‘respect for his private and family life.’75 Rebecca Cook, a Professor Emerita & Co-Director of the International Reproductive and Sexual Health Law Programme at the University of Toronto, who wrote Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law, argued that although there is no specific article in the abovementioned declaration providing for the entitlement of the family, as this cannot be directly provided by the State, Article 16 ‘implicates rights at opposing ends of the fertility scale, concerning untimely fertility and infertility.’ According to Cook, the right to found a family consists of the right of the woman to survive her pregnancy,

73 74 75

Malta Independent, 'Heated Debate On Surrogate Pregnancy' (2015) <http://www.independent.com.mt/articles/2005-04-17/news/heated-debate-on-surrogatepregnancy-74289/> accessed 15 September 2015. Proclamation of Teheran, Final Act of the International Conference on Human Rights. ILSA Journal of Comparative Law. Constitution of Malta., Art. 32(c).

i.e. she only has the right to have her and her baby’s health protected and to give birth to it, but this does not consist of the right for women to procreate. Therefore it does not even include the right to assisted reproduction.76 The World Health Organization (WHO) defines ‘health’ as a ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’77 Not being able to carry or deliver a healthy child can result in psychological emotional turmoil and many infertile couples experience depression, anxiety, problems in their marriage, a sense of lack of fulfillment and failure to live up to the expectations of marriage and family life. Thus one may argue that infertility may result in such couples not being healthy as defined by the WHO and that surrogacy may be considered as a life changing and even a life-saving opportunity for couples that cannot carry or deliver their own child. Laura Shanner, PhD, an Associate Adjunct Professor of Health Ethics at the John Dossetor Health Ethics Centre at the University of Alberta argued that this is not to guarantee the right to carry or father a child because ARTs, such as IVF and surrogacy, although they do find a way round the physical causes and effects of fertility, do not cure them.78 Prof. Pierre Mallia wrote that other than those couples who are infertile due to a medical condition, there are couples who are ‘socially infertile’ due to social circumstances, such as homosexual couples, who naturally cannot conceive a child. These couples may also feel anguished because of their wish to have children who are genetically theirs, especially in Malta due to the Embryo Protection Act, which firstly prohibits surrogate motherhood, leaving homosexual couples no choice but to adopt, and secondly defines the term prospective parents as “either of two persons of the opposite sex who are united in marriage, or who have attained the age of majority and are in a stable relationship with each other79”. Thus it completely excludes same-sex couples from having children which are genetically theirs. The Malta Gay Rights Movement (MGRM) described the law (which was then still a draft) as ‘inherently homophobic in nature’80 because of its limited interpretation of what a family consists of. MGRM co-ordinator Gabi Calleja also argued that this definition of ‘prospective parents’ creates doubts as to whether there is really equality between same sex and opposite sex couples and that it reinforces the notion of ‘second class citizenship’.81

79 68

Laura Shauuer, 'The Right To Procreate: When Rights Claims Have Gone Wrong' (1995) 40 McGill Law Journal <http://lawjournal.mcgill.ca/userfiles/other/8689316-40.Shanner.pdf> accessed 3 October 2015. Who.int, 'WHO | Re-Defining ‘Health’' (2015) <http://www.who.int/bulletin/bulletin_board/83/ustun11051/en/> accessed 15 September 2015.. Laura Shauuer, 'The Right To Procreate: When Rights Claims Have Gone Wrong' (1995) 40 McGill Law Journal <http://lawjournal.mcgill.ca/userfiles/other/8689316-40.Shanner.pdf> accessed 3 October 2015. Embryo Protection Act, art. 2. Matthew Vella, 'IVF Law 'Inherently Homophobic' - Gay Rights Movement' MaltaToday (2015) <http://www.maltatoday.com.mt/news/national/19981/ivf-law-inherently-homophobic-gay-rightsmovement-20120731#.Ve8KTRGqqko> accessed 3 October 2015. ibid.

Author Emily Jackson argued that each person has what is called a â&#x20AC;&#x2DC;decisional autonomyâ&#x20AC;&#x2122; when one is deciding whether or not to have a child. But when one cannot bring a child into the world naturally, this autonomy ceases to exist and the State will interfere as to protect the interests of all persons involved.82 The Constitution of Malta provides that all persons in Malta are entitled to the fundamental human rights under Chapter IV and that no one shall be discriminated on the basis of his sexual orientation. If the right to found a family incorporates the right to procreate, then the prohibition of both sperm and ova donation and surrogate motherhood would be discriminating against homosexual couples with regard to their procreative rights. Nonetheless, this procedure is prohibited under the Embryo Protection Act. Focusing on these infertile couples, having a child by surrogacy may reduce their distress. However, one has to also consider the effects on the surrogate mother and on the child. Although Dr. Schembri Tabone believes that surrogacy should be completely prohibited, she argued that if there were to be a law regulating surrogacy, the rights of the child should be protected as such children could suffer psychologically with regard to their search for identity.83 Furthermore there may be contractual problems between the surrogate mother and the intended parents, especially when the surrogate mother becomes attached to the child and has a change of heart with regard to giving up the baby.

3. Rights of the Child The notion of the best interests of the child was one of the matters that was taken into consideration when drafting the Embryo Protection Act. Whenever a law concerns a child, his best interests shall always be prioritised, and this is rarely opposed, since children cannot protect themselves. However, Maltese Courts have only used the concept of the best interest of a child that is born, and not an embryo.84 The Select Committee on Medically Assisted Procreation and the Permanent Committee for Social Affairs have opted for the protection of the embryo in the same way as children are protected, since ultimately, an embryo implanted into a woman would result in the birth of a child. Thus even though in the ECtHR it was held that it is up to each individual to choose as to whether to become a parent or not (as it is part of oneâ&#x20AC;&#x2122;s private life), when it comes to biotechnology, the principle of the best interest of the child hinders one from making such a private decision. It is elemental that when it comes to eventually deciding on regulating surrogacy, the rights of the child are first and foremost safeguarded and protected. The CRC, which was

Abela Stephanie, A Critical Appraisal of the Embryo Protection Act with regard to offering IVF Thesis submitted in partial fulfillment of the Degree of Doctor of Laws (2014) 34. Times of Malta, 'Legal And Ethical Problems Of Surrogate Motherhood Outlined' (2005) <http://www.timesofmalta.com/articles/view/20050413/local/legal-and-ethical-problems-ofsurrogate-motherhood-outlined.93534> accessed 5 October 2015. Abela Stephanie, A Critical Appraisal of the Embryo Protection Act with regard to offering IVF Thesis submitted in partial fulfillment of the Degree of Doctor of Laws (2014).

ratified by Malta on 30th September 1990,85 provides in Article 2 that the States must ensure that the child’s rights are safeguarded and are to experience no discrimination of any sort, including regard to the way they were born or any other status.86 Although this was aimed at children born out of wedlock, it can also be extended to children of surrogate mothers.

4. Legal Issues Pertaining to Surrogacy As seen in the Mennesson and Labassee cases, amongst others, a common legal problem arises with regard to the registration of the child. Article 7(1) of the CRC provides that ‘the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.’87 The problems arise due to the nationality of the child: if the nationality of the surrogate mother is different to that of the intending parents, and national law provides that the child cannot acquire the nationality of the latter, then the child may be in a rather complex situation, which could only be solved by the law of that state.88 Back in 2005 Schembri Tabone recommended legislation which would make surrogacy laborious and difficult to opt for, for the following: (i) for women interested in becoming surrogate mothers and for the prospective parents who are willing to pay; (ii) for these two to find persons to draw up a contract between them; (iii) doctors that are willing to enable the process, (iv) for the prospective parents who were willing to pay to be recognized as the legal parents and have custody of the child.89 The 2012 Embryo Protection Act seems to have done just so through the prohibiton of the following acts: 5(2). Any person who provides, or assists in, any medically assisted procreation procedure to a person other than a prospective parent shall be guilty of an offence. 6. Whosoever(a) Artificially fertilizes any egg cell for any purpose other than that of bringing about the pregnancy of the woman from from the cell originated

87 88 89

Unchildrights.blogspot.com.mt, 'CRC Ratifications — Chronological Order' (2012) <http://unchildrights.blogspot.com.mt/2011/01/chronological-order-ratifications-crc.html> accessed 5 October 2015. Article 2, Convention on the Rights of the Child <http://www.ohchr.org/en/professionalinterest/pages/crc.aspx>. CRC, Art. 7(1). Stark Barbra, ILSA Journal of International & Comparative Law, p.18. Times of Malta, 'Legal And Ethical Problems Of Surrogate Motherhood Outlined' (2015) <http://www.timesofmalta.com/articles/view/20050413/local/legal-and-ethical-problems-ofsurrogate-motherhood-outlined.93534> accessed 5 October 2015.

(b) Intentionally fertilizes more than two egg cells from one woman within one treatment cycle; (c) Does not transfer all the embryos produced into a woman within one treatment cycle; (d) Removes an embryo from a woman before the completion of implantation in the womb in order to transfer in the embryo to another womn (e) Selects or discards an embryo for eugenic purposes (f) Carries out an artificial fertilization of, or transfers a human enbryo into a woman whois prepared to give up her child permanently after birth (surrogate mother)â&#x20AC;? (prohibition of surrogacy).90 Henceforth, resulting in any contract of surrogacy, within our jurisdiction, to be null and void. As the government is reviewing the IVF law, the Inter-Ministerial Committee had issued a call for interested parties, as well as the general public, to put forward their points of view and suggestions. Several organisations, professionals and other stakeholders in the matter have contributed and shared their recommendations towards the possibility of regulation of surrogacy. On one hand, NL has heeded this call and submitted its proposals for the consideration of the Inter-Ministerial Committee, which struck much uproar within the Maltese community, and emphasised the reality of surrogacy. NL embraced the position that whilst all opinions need to be respected and accepting that this is indeed a delicate subject which is prone to be controversial and consequently will lead to diverse and often contrasting opinions, it is taking a firm position in standing behind all those who are currently suffering in silence in this debate. On the other hand, Moviment Nisa Partit Nazzjonalista (MNPN) has chosen to remain silent on the issue, merely stating that surrogacy should remain prohibited as the contrary would result in the promotion of the exploitation of women. Up until now, the situation locally is filled with grey areas and unanswered questions. Although we have looked at how other jurisdictions have tackled the situation, the difficulty remains as to which model to follow. For instance, when it comes to contractual obligations between the intended parents and the surrogate mother, how should the problem under our jurisdiction be resolved had one of the parties decide to not abide with the contract? As stated in the above-mentioned, it is a common occurrence that the surrogate mother would experience a change of heart, and thus would not wish to give up the child due to the natural bond formulated during pregnancy; would public policy be used by our Courts as a ground to declare the contract null, or would the contract still be enforceable in such a case? To what extent would a contract of surrogacy be enforceable under our jurisdiction, where public policy is given so much importance?

Article 6, The Embryo Protection Act.

Other interesting legal issues arise as to the choice of procedure regarding the transfer of parental authority. As regards the parental rights of the surrogate mother, most jurisdictions would terminate such rights sometime after the birth of the child, following a parental order by the intended parents, or an adoption procedure. Could it be suggested, bearing in mind the contract of surrogacy, that an option is provided whereby such would be avoided and the intended parents would be immediately be recognised to possess such parental rights? A final remarkable legal issue lies when third parties are involved in the contract of surrogacy. Although such third parties bring to mind the idea of commercial surrogacy, it would be beneficial for a State to promote the use of these parties, particularly non-profit based organisations. As of yet, with the prohibition of surrogacy under Maltese law, these are questions that remain unanswered, and are out in the open.

CONCLUSION The most significant conclusion to be drawn as a result of this study is that the need for the regulation of surrogacy is being felt in most countries where the issue is currently prohibited. This was seen in the pertinent case-law analysed throughout the paper where citizens would bypass national legislation in order to enter into contractual agreements of surrogacy, perhaps the most controversial being the cases in France, Australia and the USA. Throughout the paper, the issue of exploitation of women (where nationals would travel to poorer countries where women would enter into surrogacy agreements for a much lower price as a source of income) was emphasised in order to bring awareness regarding this topic. Thus, one of the main scopes of this paper was to encourage legislators to enable national citizens to make use of surrogacy arrangements locally, in order to reduce exploitation in other under-developed countries or developing countries such as India and Thailand, amongst others. Referring back to the highly disputed questions raised in the introductory statement, with regards to the right and the need to have a family, research has shown that although most couples who resort to surrogacy are indeed medically unable to do so or socially unable, there are also many instances where this reproductive technique is resorted to for what many claim to be â&#x20AC;&#x2DC;selfishâ&#x20AC;&#x2122; reasons. However, jurisprudence has shown that the Courts have never tackled a situation where the parents resorted to surrogacy for selfish reasons; rather this was always done due to medical reasons, one of which included infertility. In light of these situations, legislators should be cautious, should they decide to regulate the reasons why surrogacy is resorted to, in order to prevent such situations from arising. The cost of biotechnology involved in the surrogacy process is normally one of the leading factors as to why the Government or third-party organizations would perform background checks, which would be rendered compulsory, on both the surrogate mother and the intended parents. This would be done not only to limit the number of surrogate pregnancies, but also to make sure that the future child would be welcomed into a loving and respectful home, as the interest of the child was always of paramount importance in the eyes of the Court. This background check is highly recommended and should the legislators wish to decriminalize surrogacy, they would prove to be highly useful to prevent situations where perhaps the surrogate mother might experience a change of heart and would want to keep the baby for herself as was the case in Baby M. Thus, medical checks, background checks and also a record of mental illness in the family are paramount in order for surrogacy agreements to be contracted. With regards to the question posed in the introduction on what would happen were the intended parents to refuse a child with disability in case of surrogacy was highlighted in the Baby Gammy case where Australian intended parents entered into a surrogacy arrangement with a Thai woman. However, one of the twins suffered down-syndrome and was abandoned

by his intended parents. The surrogate mother opted to raise the baby on her own. This case raised controversy on international commercial surrogacy contracts. Presently, there are many grey areas in jurisdictions where surrogacy is not properly regulated. The enactment of a proper Surrogacy Act would clarify such areas of uncertainty and tackle in detail every situation which might arise out of contractual agreements in order to prevent situations such as the Baby Gammy case from arising. Although it will be difficult to tackle every problem that may arise, case-law would be an eye-opener for lacunae which would need to be tackled. In light of all this research, we aspire that this policy paper will serve as an insight to how a possible future legislation on the topic should be drafted.

BIBILIOGRAPHY Articles, Blogs and Websites All Things Surrogacy, Surrogacy Laws by State <http://allthingssurrogacy.org/surrogacy-laws-state-by-state/> British Surrogacy Centre, Legal Issues with Surrogacy <http://britishsurrogacycentre.com/legalissues> Human Rights Laws Centre, Regulating Surrogacy in Australia <http://hrlc.org.au/regulating-surrogacy-in-australia/> Malta Today • Vella M, No Agreement on Surrogacy for Embryos of Sick Mothers <http://www.maltaoday.com.mt/news/national/22876/no-agreement-on-surrogacy-forembryos-of-sick-mothers-20121123#.VfbN9xGqqko> • Vella M, IVF Law ‘Inherently Homophobic’ – Gay Rights Movement • Diacono T, PN, LP Women Branches Clash over Embryo Freezing, Surrogacy The National Conference of Commissioners on Uniform State Laws <http://www.uniformlaws.org/Act.aspx?title=Parentage%20Act> The Sydney Morning Herald, Should Commercial Surrogacy be Legal in Australia? <http://www.smh.com.au/comment/should-commercial-surrogacy-be-legal-in-australia20150514-gh1ead.html> Times of Malta • Legal and Ethical Problems of Surrogate Motherhood outlined <http://www.timesofmalta.com/articles/view/20050413/local/legal-and-ethicalproblems-of-surrogate-motherhood-outlined.93534> Working papers European Parliament Directorate, A Comparative Study on the Regime of Surrogacy in EU Member States (2013) Theses Abela S, A Critical Appraisal of the Embryo Protection Act with regard Offering to IVF, (Thesis submitted in partial fulfilment of the Degree of Doctor of Laws (2014) ) Online Journals Milleri A P, The Silence Surrounding Surrogacy: A Call For Reform in Alabama, (Alabama Law Review Vol. 65:5:1375) Nakash A & Herdiman J, Journal of Obstetrics and Gynaecology (April 2007)

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