Rights, responsibilities, obligations and ethics are all fundamental to achieving a healthy discussion. However, in this day and age the state has to move away from parochial or patriarchal mentality and move towards legislating with everyone’s interest at heart.
Einstein once said that ‘to raise new questions, new possibilities, to regard old problems from a new angle, requires creative imagination and marks real advance in science’. Clearly, this has been the case with the development of IVF over the past few decades.
In Malta, despite a positive early record in the private sector, it was only in 2015 that the first 30 patients started their first IVF cycle at Mater Dei Hospital. This was after legislation was enacted in 2012. After three years a review of the IVF legislation is due to evaluate successes and failures and also to bring it in line with other relevant legal norms and ECHR jurisprudence and eliminate inequalities.
In a nutshell the IVF legislation needs to be taken to the next level.
For starters the name of the present law, Embryo Protection Act, does in no way capture the legislation in its entirety. The fact is that it is IVF legislation with the scope of facilitating fertility and reproduction. The name should echo this. IVF should be available to all individuals, single or in a relationship, doing away with the discriminatory terms of the act. Presently, the act is in contravention of constitutional anti-discrimination provisions, introduced in April 2014, with regard to sexual orientation and gender identity.
Secondly, the Act provides for services for women aged 25 to 43 (less a day) years of age. This should be changed so that there are no legal restrictions based on age. The state, through the National Health Service, may lay down restrictions as it deems fit for services offered by the state, but it is not necessary to restrict the private sector. Those wanting to avail themselves of the private sector should be free to do so without being compelled to go abroad, where age is not a legal barrier. This would open a can of worms for discussion on how old a person should be to become a mother. This is where I believe common sense should prevail.
A very important milestone that this review should note is the need to introduce embryo freezing which will, among other factors, bring the opportunity to transfer frozen embryos from previous cycles without the need for the woman to go through a treatment cycle again. A treatment, I might add, which is very painful and costly. In fact, Article 16(e) of Convention on the Elemination of All Forms of Discrimination Against Women (CEDAW) specifically establishes “the right for women to decide freely and responsibly on the number and spacing of their children…”
One might ask what will happen to the remaining frozen embryos. Might I suggest asking prospective parents what they would do and rest assured that the reply will be that, of course, they would want to keep the embryos for another pregnancy. Believe me, I have had first hand experiences of friends and relatives, but most of them remain silent in this debate.
That said, the existing possibility to freeze oocytes already exists and should remain for those who want it.
The updated legislation needs to decriminalise egg and sperm donation and create a framework that would allow for anonymous ova and sperm donation for all, without obliging anyone to donate. Due to the insularity of our country, consideration should be given to exchanging ova and sperm donation with foreign donor banks if necessary. In the case of known donors, the law should obviously have a structure to cater for this eventuality.
Moreover, the opportunity for surrogacy, with all the serious ethical considerations that surrounds this, should be explored and possibly made available to those who truly need it. This provides a legitimate route to parenthood for those individuals suffering in silence.
I understand that the issues mentioned above will spark much debate. Rights, responsibilities, obligations and ethics are all fundamental to achieving a healthy discussion. However, in this day and age the state has to move away from parochial or patriarchal mentality and move towards legislating with everyone’s interest at heart. This would allow prospective parents to avail themselves of services within our own country and not force parents to look for solutions abroad.