This article first appeared on Malta Today
Over the last few months there have been many times when I have attempted to write something about the amendments to the Embryo Protection Act, but never got further than a few sentences for a simple reason. It is one of those delicate, highly personal, thorny issues, which draw us into very ethical and moral dilemmas. The arguments are passionate on both sides, and I can empathize and understand the points of view of both. Every person has to use their own conscience on such matters, and because of the way these amendments have been presented, they did not leave much wiggle room. You either agree with them or you do not. Personally, my own views are very much in that grey area of “I don’t know for sure” which is not much of an opinion from an op-ed columnist.
However, on reading President Marie Louise Coleiro Preca’s statement, where she said she was signing the law purely out of duty to the Constitution and the democratic process (in other words, that it does not reflect her views and that she was basically signing it unwillingly) it occurred to me, not for the first time, why I could never be a politician. There are just too many compromises for my liking. In fact, she should either have not made that statement at all, or else simply resigned in protest.
But the statement the President made compelled me to look at past controversial laws. When President George Abela signed the divorce Bill in 2011, he did so without giving his own personal views. In fact, a story run by the Times at the time, specifically asked former Presidents what they would do: “I don’t believe matters of principle should be decided through a referendum,” Dr Fenech Adami said, adding that the President should also think twice before giving his assent to a divorce law unless there was a popular mandate. The former President and his two predecessors, Guido de Marco and Ugo Mifsud Bonnici, were asked by The Sunday Times if they would have signed a divorce law while they were still in office. Prof. de Marco made it clear he was against divorce, but said his personal view should not be a determining factor in the matter, while Dr Mifsud Bonnici said the introduction of divorce would harm the State and that he preferred not to answer a hypothetical question. The President who could be faced with the possibility of signing a divorce law is George Abela, but he declined to comment when asked what his position would be.” (The Sunday Times, 11 July, 2010).
Interestingly enough though, President Abela put his foot down on civil unions, and made it known to PM Joseph Muscat in March 2014 that he would refuse to sign the Bill if it passed. A possible impasse was sidestepped because it was his last month in office and the Bill was simply delayed for a further five weeks until President Coleiro Preca was sworn in. As it was part of the Labour party’s electoral mandate, she said she had no problem with signing it.
But back to divorce. As we know, Prime Minister Gonzi famously voted against the Bill in all its stages in Parliament, even though the divorce referendum which he himself had proposed, had been won by the Yes vote.
A report from Parliament about the position of the two parties stated that, “They agreed that they did not have a mandate to introduce divorce, and that once they did not have a mandate, the people should decide whether or not divorce should be introduced. They also agreed that partisan politics should not be involved and MPs should vote on the basis of their conscience….Despite his personal belief against the introduction of divorce, Dr Gonzi said he agreed with the holding of a divorce referendum. He would work to ensure that the people took their decision freely in a serene environment which was not politicised. The people should be able to make a clear choice between whether or not they wanted to see the introduction of divorce.” (The Times, 15 March 2011)
Despite the fact that it severely dented his political career and completely disenchanted the more liberal faction within the PN, Dr Gonzi remained adamant to the end. ”Even though the result is not what I wished for, now it is our duty to see that the will of the majority is respected,” Dr Gonzi said in a televised speech. Dr Gonzi, who campaigned against the introduction of divorce, has said it is now up the parliament to enact a law legalising the dissolution of marriage on the island.” (BBC, 29 May, 2011)
However, the IVF bill, as it is known, is not so clear-cut, nor can it be answered by a simple Yes or No. If divorce plunged the country into a ‘war’ between the religious right and the more progressive left-wing, then the amendments to the Embryo Protection Act have taken the battle up a notch. Health Minister Chris Fearne has repeatedly stated that the Government’s “overwhelming electoral mandate” of 2017 justified introducing a more inclusive law, but this is a disquieting statement. No law, but especially one which affects human life, should be introduced simply because a party won by a landslide – and the reasons for this should be obvious. Not everyone who may have voted for Labour necessarily agrees with everything it is doing.
The most contentious aspects of the Bill are the freezing of embryos and being obliged to give up unused embryos for adoption. “Prospective parents will be issued with a ‘permit’ by the regulator to have their embryos frozen, which can then be extended every five years until the woman is 43. This will give the couple ample time to use any frozen embryos but if they decide not to extend the permit, or the woman reaches 43, the Embryo Protection Authority will be able to give the embryos up for adoption. Parents who, before the start of the treatment, decline to agree with the adoption clause will only be allowed to fertilise two eggs with all resulting embryos being transferred to the womb – as happens today.” (Malta Today 11 April 2018)
In fact, in a paper presented by the Malta College of Pathologists, more than 80% of couples questioned in an international study refuse to give up spare embryos for adoption after in vitro fertilisation, which is perfectly understandable. Can you imagine your own flesh and blood walking around somewhere without your knowledge, who has your genetic make-up and resembles you? The idea is positively creepy and disturbing.
On the other hand, having only two fertilized eggs implanted drastically decreases the chances of pregnancy as can be seen by current statistics.
I think many will agree that all this has taken us into very debatable, murky areas which have long been argued in countries where issues such as embryo freezing and what to do with additional embryos have been the subject of different legal and ethical rulings over several decades. Suffice to say that IVF was developed 40 years ago in 1978, with the first so-called ‘test tube baby’. Over the years, the dilemma of what to do with “extra’ embryos grew. According to the International Fertility Law Group based in the US:
“In most cases, IVF patients are required to sign an agreement outlining the disposition of frozen embryos in the event of patient death, divorce or separation. The patient usually has the choice of discarding or destroying the embryos, donating them for use by another infertile patient, or donating them for medical research. Typically, the IVF clinic will store frozen, unused embryos for a period of time in the event the client wants to have more children at a later time, or the embryos may be transferred to a cryopreservation facility for long-term storage. In either case, the client pays a storage fee.”
The problems arise when clients are no longer willing to pay the fee: “They want neither to have additional children nor to continue paying storage fees, but they don’t want to make the call to have the embryos destroyed. Some assume the embryos would be destroyed as soon as they stopped making payments, apparently oblivious to the dilemma they have created for the providers.”
Destroying embryos here in Malta is not an option because it is tantamount to abortion, which is illegal. So what we have ended up with is a law which will probably present even more complex ethical dilemmas for those undergoing IVF in the near future.
On the other hand, there is the crux of the matter which has brought us to this stage, and which is also staring us in the face: our rising infertility rates, some of which are due to women delaying their attempts to get pregnant until they are older. We can argue about a women’s right to have a child at any age until we are blue in the face but there is no arguing with biology – a woman’s window of opportunity to fall pregnant drastically decreases with age. It is an indisputable fact, and although scientific advances have truly produced miracles for many lucky parents, maybe it is time we shift our perspective and address this aspect of the problem as well.