Surrogate motherhood : a comparative study and a proposal for domestic legislation

Abstract

Surrogate motherhood is a product of the 'new' reproductive technologies, and is one of those vices disguised as a virtue which modern science, every so often, presents us with. It is a practice intricately strewn with complex ethical and legal issues regarding which many are the questions and very few the answers. This study is an attempt at identifying and discussing these issues with a view to proposing domestic legislation that is both ethically and legally sound. The concept of surrogate motherhood goes against the very basic notions that present Maltese legislation is based upon. Besides, legal maxims that have guided courts in deciding maternity issues up to now are inapt at solving this dilemma. There is, therefore, no clear solution as to what happens when two women split between them a process which since time immemorial has not been divided. This study presents both a comprehensive analysis of the ethical issues raised by surrogacy, as well as an in-depth comparative analysis of foreign legislation and case law on the subject. The foreign experience, which now spans almost two decades, is a tool of immeasurable worth to whoever aims at proposing legislation that is both just and effective. Last but not least this study will show to what extent the very concept of surrogacy is at odds with Maltese laws. In conclusion, a proposal is made for surrogacy legislation for Malta. The enactment of legislation on the subject is encouraged since it is imperative to fill this legislative lacuna before cases start going to court. It would be distressful, to say the least, to have two mothers, one child and no law.