To legalise or not to legalise? : surrogacy and its legal implications for born and unborn children

Abstract

The rise in surrogacy arrangements worldwide can be a6ributed to the increasing prevalence of Assisted Reproductive Technologies (ART) and evolving societal views on delayed parenting. The protection of children delivered via surrogacy is an obligation stipulated in the United Nations Convention on the Rights of the Child (UNCRC). Nevertheless, the absence of consistent legislation regarding surrogacy, particularly in the context of International Surrogacy Arrangements (ISA), presents legal obstacles such as challenges in establishing nationality and determining legal parenthood. Legal complications arise in the context of cross-border surrogacy, specifically when the country of the intended parents fails to recognize their legal connection with the child in a different jurisdiction. These factors may have an impact on parental responsibilities, as well as on the legal status of the child, citizenship, rights to identification, and claims to inheritance. In order to safeguard the rights and well-being of children born through international surrogacy, it is crucial to address the legal ambiguities that have emerged as a consequence of this complex situation. This dissertation aims to analyse the rights of children and the challenges encountered by those conceived through surrogacy, thus contributing to a deeper understanding of these implications. Furthermore, an overview on the diverse regulatory approaches to surrogacy as well as reference to selected judgments delivered by the European Court of Human Rights (ECtHR) will be made. To fulfil the purpose of this dissertation, it is imperative to understand the valuable insights into potential strategies for addressing the complexities surrounding surrogacy, with particular emphasis on the best interests of the child. This is particularly pertinent within the local context, should legislation aiming to legalize surrogacy be enacted, given the absence of legal frameworks governing surrogacy in Malta and the lack of specific regulations addressing its outcomes. The study concluded that the rights of the children involved in surrogacy, whether born or unborn, should not be disregarded and should be prioritized. Since children in such practice lack autonomy and a voice, regulation on this practice is important in order to ensure that their best interests are safeguarded.