ELSA calls for ‘proper legislation’ on surrogacy

ELSA Malta today presented a policy paper regarding the regulation of surrogacy to civil liberties minister Helena Dalli in which it called for “proper legislation.”

The Maltese branch of the European Law Students Association said it decided to tackle this controversial subject because it felt 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.”

ELSA said that while other aspects of reproductive rights have been discussed in great detail, not enough light has been shed on other areas, including 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 policy paper, ‘Onto Regulating Surrogacy’ aims to gather sources from all over the world and place them within a local context, and present an idea which could work in a country like Malta.

While pointing out that “in Malta, one of the reasons why the ban on surrogacy exists, is our morals, values as well as our culture,” ELSA said that 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,” the statement said.

The paper discusses the grey areas in Maltese legislation and 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.”

ELSA said that most countries in Europe, including Denmark, Greece, Ukraine and the United Kingdom permit surrogacy, 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.

Moreover, the European Court of Human Rights (ECtHR) has dealt with surrogacy and not only did it not crimanlise surrogacy in its judgments, but it allows its use in specific situations.

ELSA said 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.”

The statement added that 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.”