Regulating surrogacy : safeguarding the identity of the child

Abstract

Everyone has an identity; it is what defines one's sense of self. The foundation of one’s identity is frequently associated to their biological roots, who the parents are, because this influences your civil status, surname, family members who raise you, your nationality, and any inheritance rights you may have. The legal presumption used to be that everyone had a mother and a father, with the mother giving birth and the father being her husband. However, due to significant technical advances in the medical profession, social reality has become much more complex. Surrogacy is the most complicated reproductive procedure to regulate since it involves a woman carrying a child on behalf of another person. As a result, the legal presumption that the woman giving birth is the biological mother becomes inapplicable, and questions about the child's identity might arise. Surrogacy regulation is not universal; therefore, states have the authority to delegate as they deem appropriate. The effects of surrogacy are felt worldwide; it is a global issue because there are states with highly liberal laws regarding the procedure and states with strict laws against it. The issues arise when people travel to more liberal nations to seek surrogacy treatments, because the child's legal status is uncertain upon their return. Several cases have been taken to the European Court of Human Rights because, despite the fact that individuals were aiming to dodge national legislation, their home country must cope with the repercussions of their child's recognition upon their return. There are currently no regulatory frameworks in Malta regulating surrogacy, or explicit provisions regulating its effects. As a result, an analysis of the jurisprudence of the European Court of Human Rights gives insight on the possibility of a similar situation occurring in Malta