Last September, Labour Party MP Rosianne Cutajar stated that Malta must address the realities of surrogacy in the country and come up with solutions that recognise and protect parents' fundamental rights.

Substantive family law is an exclusive competence of the Member States. Consequently, it is for the Member States to decide on the rules of whether, and if so in what form, surrogacy is permitted on their territory. However, cross-border aspects do fall within the competence of the EU.

Surrogacy is not a recent concept. Traditional surrogacy arrangements already existed in ancient times. However, with the development of in vitro fertilisation (IVF) and gamete donation, the possibilities have expanded rapidly. The first successful gestational surrogacy arrangement occurred in 1984. 

While I agree that, sooner or later, Malta, like many other EU member states, will have to come to terms with them, the subject currently finds itself entangled in a complex legal web.

Legal issues in surrogacy stem from differing laws across jurisdictions, creating complexities in establishing parentage and citizenship, enforcing contracts, and ensuring ethical treatment of surrogates and children.

A distinction has to be drawn between traditional and gestational surrogacy, depending on the genetic connection of the surrogate to the child. A further distinction is made between altruistic and commercial surrogacy, depending on whether the surrogate receives remuneration. With regard to compensation, a distinction is drawn between altruistic surrogacy and commercial surrogacy. In both cases, money may change hands.

However, in the case of altruistic surrogacy, the main goal for the surrogate is to help another couple have a child. Therefore, the expenses in altruistic surrogacy are limited to reasonable expenses directly relating to the pregnancy, predominantly the medical costs, whereas commercial surrogacy is about profit.

The limits for reasonable expenses can differ greatly between states, and it is therefore not always clear where altruism ends and business begins.

Traditional surrogacy is where the surrogate is also the genetic mother, meaning that her gametes were used and that she is therefore genetically related to the child. This form of surrogacy is sometimes also referred to as 'low-technology' or 'partial surrogacy'.

Gestational surrogacy uses the intended mother's or a donor's ovum, and the surrogate is not the genetic mother. This form of surrogacy is sometimes also referred to as 'high-technology' or 'full surrogacy'.

Among the Member States, Ireland, Greece, Cyprus, and Portugal have introduced legislation permitting altruistic surrogacy, but for some of these, the legislation has not yet entered into force, or further regulations are still missing. Portugal has previously introduced multiple laws concerning surrogacy, but these were declared unconstitutional by the Constitutional Court.

In the Netherlands, a proposal to regularise altruistic surrogacy introduced in 2023 is still being discussed in parliament. The Council of State considered that there was a lack of reliable research as to the issues arising in the Netherlands. A subsequently commissioned study estimated that, in the Netherlands, there are between 30 and 50 children born by surrogacy annually. The study considered that surrogacy regulation is desperately needed, but that the proposed bill does not yet offer sufficient protection.

The approaches taken by these Member States as to the conditions applying to the surrogate and the intended parents can be quite different.

Surrogacy is presently illegal in the Maltese Islands as per the Embryo Protection Act. Locally, those assisting surrogate mothers potentially face a maximum sentence of three years' imprisonment and/or a fine ranging between €5,000 and €15,000.

Many other Member States have banned surrogacy. Among these, we find Bulgaria, France, Croatia, Germany, Lithuania and Italy. Moreover, in Italy, it is a criminal offence for its citizens who have concluded a surrogacy agreement abroad.

Some of these bans explicitly prohibit the procedure, whereas others have regulated assisted reproduction in such a way that surrogacy is implicitly prohibited.

There is an implicit ban on surrogacy that arises from the fact that IVF is only allowed within a marriage or registered partnership. Transfer to a third party is only considered in the context of a donor, which in essence prohibits surrogacy. This is, for example, the case in Austria's Reproductive Medicines Act (although it also has a more explicit prohibition of arrangements for a person to have an egg cell implanted).

Such implicit bans also apply in Estonia, Finland, Hungary and Sweden.

Since 2014, the European Court of Human Rights has issued many judgments concerning surrogacy, especially concerning parenthood established abroad. This case law requires that, if the parenthood resulting from surrogacy established abroad is not recognised, the state has to provide a means to regularise the 'limping' legal relationship.

 In 2022, the European Commission made a proposal for regulation on private international law rules relating to parenthood, which would also apply to surrogacy established in a Member State.

Discussions in the Council are still ongoing as to how this issue should be dealt with.

The 2024 directive on preventing and combating trafficking in human beings and protecting its victims explicitly identified, for the first time, the exploitation of surrogacy as a form of human trafficking.

Key concerns involve the potential for exploitation of surrogates, particularly in commercial surrogacy and cases of "reproductive tourism", as well as disputes between intended parents and surrogates over contract terms or the surrogate changing her mind.

Ethical questions remain about surrogacy, and there must be measures to protect all parties, to guarantee well-considered decision-making, and to minimise risks.