"Onto Regulating Surrogacy’ is a policy paper which aims to shed light on the present, and the potential situation on surrogacy in Malta’
On Tuesday the 9th of February ELSA Malta presented a policy paper regarding the regulation of surrogacy to Hon. Helena Dalli at the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties.
ELSA Malta’s policy paper, "Onto Regulating Surrogacy’ aims to gather sources from all around the world and place them within a local context, and present an idea which could work in a country like Malta. In Malta, one of the reasons why the ban on surrogacy exists, is our morals, values as well as our culture. This issue also arose when it came to regulating Civil Unions or Divorce in the recent years. It must be emphasised that when regulating surrogacy, a legal possibility is being created, but in no way is surrogacy replacing other methods of reproduction, and thus, should not hinder the predominant values present in our society. ELSA Malta understands that this controversial issue is a sensitive one, but also recognises the need for proper legislation.
"Onto Regulating Surrogacy’, in brief, discusses the grey areas which Maltese legislation has over the issue of surrogacy and also gives a comparative overview of how other jurisdictions deal with the topic. One of the problems concerning surrogacy all over the world, is that its regulation is inconsistent and varies in different jurisdictions – in some countries it is explicitly prohibited whereas in most countries surrogacy remains completely unregulated. Most countries in Europe, such as Denmark, Greece, Ukraine and the United Kingdom permit 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. The European Court of Human Rights (ECtHR) has dealt with surrogacy by tackling it from the various angles of the each situation. In the policy paper, emphasis is made on the fact that the ECtHR in its judgments, does not criminalise surrogacy, and furthermore allows its use in specific situations.
The ECtHR has developed a number of principles it encourages Member States to adopt in their legislation. Our policy paper encourages that stakeholders on the matter within our jurisdiction consider our proposals which include that our legislation should adopt the legal framework set out in the judgements delivered by the ECtHR.
One of the many reasons as to why ELSA Malta decided to tackle this controversial subject is because it is largely felt that there is a need to get the ball rolling on a national level when dealing with reproductive rights from a different point of view than that usually given attention. We feel that while other aspects of reproductive rights have been discussed in great detail, not enough light has been shed on other specific areas, that of which include surrogacy. By presenting this policy paper to the Minister, ELSA Malta hopes that the legal arguments proposed in such paper which are also given from a comparative perspective are given due consideration and which may possibly be implemented in future legislation or policy. The ECtHR has already paved the way by implementing its own principles and guidelines as to how surrogacy should be dealt with and this backs up our arguments presented in the policy paper. We believe that since the remedy provided by the ECtHR is available to all citizens of the respective Member States, there is no reason why our own national legislation should not remove this obstacle created by our current legislation, or lack thereof, for Maltese citizens.
"Onto Regulating Surrogacy’ is a policy paper by ELSA Malta’s Legal and Social Policy Organising Committee, involving Nicole Sciberras Debono, leader and editor of the policy paper, and the rest of the team, Maria Magro, Mariah Mula and Nicole Portelli. The Organising Committee is directed by Nick Debono and Nicole Sultana, ELSA Malta’s Director of Legal & Social Policy and Director of Legal Publications, respectively.
The full version of ELSA Malta’s policy paper "’Onto Regulating Surrogacy’’ may be found on www.elsa.org.mt.