Professor JosAnn Cutajar, Department for Gender and Sexualities, Faculty for Social Wellbeing, University of Malta
Surrogacy is a global multi-billion euro industry. A few Maltese have availed themselves of surrogacy abroad, and that is why I am writing about it here.
The people who resort to surrogacy might have fertility issues, health problems or might have had complications with previous pregnancies.
WHOs definition of infertility has however changed from a clinical disease based definition to one which incorporates men or women without medical issues who want to become parents of children genetically related to them or their partner. People resort to social surrogacy when pregnancy can affect their career negatively and this includes female models, actors and politicians. This category also includes gay couples or single men seeking children genetically related to them.
There are two types of legal surrogacy. Altruistic surrogacy, which is legal in the UK, Ireland and Denmark. The children borne out of this arrangement are “adopted” by parents after the birth. In commercial surrogacy on the other hand, which is legal in some USA states as well as in Israel, Greece, Kenya, Thailand, Russia and Ukraine, the embryo is more likely to “belong” to the intended parents from conception. In altruistic surrogacy, the surrogate is more likely to provide the egg, which means that the child is genetically related to the surrogate. The surrogate mother in this case is less likely to have health-related issues during the pregnancy. With gestational surrogacy, the children borne out of this arrangement are not genetically related to the surrogate. The intending parent/s can shop around and choose the surrogate, the egg donor and/or the sperm donor that best suit their tastes. In this case, IVF treatment is involved.
Couples or individuals from Western countries, where surrogacy is illegal or too expensive, seek alternative solutions abroad. While in Albania, Greece, the Netherlands, the UK, Georgia, Russia or the Ukraine surrogacy is legally permitted, in Malta surrogacy is unregulated, but tolerated. In other EU and European countries such as Germany, Austria, Spain, Estonia, Finland and Italy, among others, it is prohibited on the basis that such arrangements violate the rights of surrogate mothers and the children’s human dignity. Commissioning parents can face immigration, citizenship and parental rights issues when they take the children back to these countries, depending on the legislation of the said country. A number of cases on this issue have made their way to the European Court of Justice.
Those involved in cross-border reproductive care (Milliband 2015) become cross-border reproductive tourists (Storrow 2005). Cross border surrogacy is fraught with problems. The issue of child abandonment arises when the baby is born with a disability. In some cases babies were left behind by the commissioning parents who felt that their financial investment had not borne the fruit desired. When children are abandoned, the surrogate might not be in a position to raise the child herself, since the majority who opt to carry out this process, tend to have financial issues. The state where they are borne may not acknowledge them because the commissioning parents are listed on their birth certificate, while the country where the commissioning parents reside does not acknowledge them since they were not born there. So they end up stateless.
The practice of international surrogacy arrangements raises a number of issues where private international law and fundamental rights are concerned. These issues include the determination of the children’s parentage, their civil status, their nationality and their right to family life. It also involves issues relating to the merchandising of the human body and the commodification of the child, apart from that of the surrogate.
There are two opposing stands concerning surrogacy. One stand calls for the development of a new international instrument on surrogacy; similar to The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. This approach does not take into consideration though that in adoption the primary objective is to find a family for the child. In the case of surrogacy, the child is born out of the commissioning parent/s desire for “their” child.
The second stance is based on Article 21 of the Convention on Human Rights and Biomedicine, which prohibits making the human body and its parts a source of financial gain. Institutions and individuals who uphold this stance are working to ban surrogacy since for them this practice involves the commodification of the human person. In this case, both the child or children borne and the surrogate mother are commodified, and this is seen as a violation of the dignity of both the child and the surrogate mother (European Centre for Law and Justice, 2012). Where should Malta go from here – for or against surrogacy? There are three contending rights to be taken into consideration before we can come to a conclusion – the rights of the children borne out of surrogacy, the surrogate mother and the commissioning parents.