Legal and ethical problems of surrogate motherhood outlined

Complex ethical problems outweigh the positive sides of surrogate motherhood and the desire of parents to have genetically-related offspring, even if this resulted in a happy family nucleus and a happy child, lawyer Deborrah Schembri Tabone, told the House Social Affairs Committee.

Dr Schembri Tabone, who wrote a thesis on surrogate motherhood, held steadfast to her views even after a 90-minute grilling by the eight members of the committee, chaired by Nationalist MP Clyde Puli.

She emphasized that her strong moral convictions lead her to suggest that future legislation on bio-technology in Malta and human rights should rule out surrogate motherhood completely but allow anything that would be ethically acceptable in the framework of human dignity and human rights, like assisted reproduction.

Legislation regulating bio-technology would not stop the scientific process and would not be a threat to research, she said. However, the medical profession should in no way be given a carte blanche.

She said that any regulatory legislation on the subject must be clear and drafted on the sound moral conviction that the offspring, who are directly involved in the process but have no voice, do have rights which must be safeguarded. These children suffer psychological problems of identity and rootlessness. Up to six people could be the parents of a child borne by a surrogate mother.

Absence of such legislation could also attract to Malta anybody who would like to experiment on human cloning. This could very well have happened in 2001 when Profs. Santorini, an Italian world expert in the field, was banned through hurried legislation from conducting experiments in the UK and said that he would then carry out his experiment on "a Mediterranean island". This could have been Malta, she said.

Dr Schembri Tabone said there were issues of the contract between the surrogate mother and the commissioning parents, who would be considered the parent under current legislation and have legal custody of the offspring. Since there was no existing legislation to cover the subject, if a court case was instituted, the presiding judge would have to decide himself the criteria he would use. This would further complicate matters.

Dr Schmebri Tabone - who made comparative studies of the legislation in the US, Australia and a number of European countries including Germany, France and Italy - said Malta needed legislation which would make it difficult: (a) for women, who would like to become surrogate mothers, and for parents, who were ready to pay for the service, to meet; (b) for these to find professionals to draft contracts regarding surrogate motherhood; (c) for would-be surrogate mothers to find professionals ready to perform the necessary medical procedures; and (d) parents who were ready to pay for the offspring to be acknowledged as the legal parents and custody of the offspring.

Dr Schembri Tabone suggested that advertisements should not be allowed. Heavy fines should be imposed on anybody who induced a third party to enter into a contract to become a surrogate mother and on those providing professional services to facilitate surrogate motherhood or contracts for the same aim. She suggested that anybody involved in the process should he held liable for damages.

Any surrogate motherhood contract should be null and void.

Furthermore, Dr Schembri Tabone suggested that, in all instances, the surrogate mother should be recognized as the mother of the child. If the surrogate mother was married, then her husband should be recognised as the father of the child.

The legislation should also prohibit women who had used third-party reproduction from giving their consent to adoption. This would make it virtually impossible for would-be parents who were prepared to pay for surrogacy and consequently they would be discouraged from considering assisted maternity as an option.

The national jurisdiction principle should also be applied: this would make Maltese nationals responsible for any infringement of the law, whether committed locally or abroad.

Dr Schembri Tabone augured that the proposed legislation would not have any loopholes.

During the deliberations following Dr Schembri Tabone's presentation, Mr Puli made it clear that the committee acknowledged its responsibilities in proposing sound legislation. However, nothing that could give hope to an infertile couple to become genetic parents should be discarded outright. The state, he said, should not be seen as a tyrant, legislating indiscriminately.