Legal issues relating to the introduction of surrogacy in Maltese law

Abstract

This Term Paper on a Legal Subject examines the possibility of introducing surrogacy in Maltese law. It involves a legal analysis of the law concerning parenthood and contractual law, the two main legal issues which will be dealt with in this legal study. The term paper is divided into three sections. The first section introduces the concept and scope of surrogate motherhood and analyses legal issues which concern parenthood and custody of the child. The second section focuses on the surrogacy arrangement itself and how this is incompatible with Maltese contract law. It also includes the distinction between commercial surrogacy and altruistic surrogacy. This distinction is made to prohibit exploitation of women and to avoid having any commercial transactions in surrogacy arrangements. The last section then deals with a legislative proposal to introduce and to decriminalise non-commercial surrogacy in Maltese law. Through the study, this paper takes into consideration foreign laws which regulate surrogacy and other foreign laws which refuse to recognise surrogacy as a lawful alternative for procreation. The main influence of this study is undoubtedly British law which has been a great influence on Maltese legislators for decades. The term paper also makes reference to European judgments delivered by the European Court of Human Rights. In analysing these judgments, a reference is made to the French law. The aim of examining these judgments is to bring forward a more accurate legislative proposal which safeguards the rights of all the parties subject to the surrogacy arrangement.