The best interests of the child - February 3, 2011

At the moment, the Maltese authorities are, among other things, considering whether to allow the freezing of embryos and whether or not to introduce divorce. Arguments in favour and against, rage back and forth. Pro-family, pro-marriage, pro-life, pro-Roman Catholicism, etc. Hard decisions to take, the more so in a traditionally conservative country.

As I follow the pro- and anti- arguments in both debates one phrase keeps echoing in my head: the interests of the child.

I am referring, of course, to the Convention on the Rights of the Child (www2.ohchr.org/english/law/crc.htm), which most countries, including Malta, have signed and ratified. According to this Convention’s preamble:

“Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance...

“Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding...

“Bearing in mind that, as indicated in the Declaration of the Rights of the Child, the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth...”

The same Convention defines “child” as “every human being below the age of 18” (article 1) and goes on to list the rights that children are entitled to, including right to life, freedom of expression, freedom of thought, etc.

There is no mention or reference to whether parents have the right to divorce or to freeze embryos. Not surprising, considering that signatories to this Convention include countries where both are permitted (to say nothing of other matters such as legalised abortion). For the Convention to be acceptable to state parties, its drafters had to take the stance that, once children are born, they have the rights listed in the text (the preamble makes no more than a small reference to legal protection before birth but being in the preamble amounts to little more than a declaration of principle).

As a general rule, according to this Convention, children first have to be born (that is they make it past the challenges of being frozen as zygotes or aborted) and then they assume the rights listed in the Convention.

Their parents are not obliged to remain together, either. In fact, the Convention caters for this in article 20 (deprivation of family environment and the obligations of the state when this occurs, as may happen as a result of an array of circumstances).

So, it can be concluded that neither embryo freezing nor divorce go against the Convention on the Rights of the Child.

This, of course, does not mean the Convention is irrelevant to the two (distinct) debates. The embryo-freezing issue is, after all, about bringing children into this world whereas divorce is about the right to break free and start again if one so wishes. If there are no children, the question of what happens to the children does not arise but countless marriages fail after children are brought into the world, so the decisions on whether to go one’s own way, whether to separate, whether to divorce, etc. does affect the rights and interests of the child.

The Convention on the Rights of the Child is, to a considerable extent, built on two important pillars:

1. The vulnerability of children: most of the Convention aims not only at granting positive rights but on protecting the child (preamble, articles 19 and 32).

2. The best interests of the child; mentioned at least seven times in the Convention (articles 3, 9, 18, 20, 21, 37, 40).

The overall message of the Convention is that children require special care and attention, not only because they are of their very nature weak and vulnerable but also because they are tomorrow’s society. The decisions today’s adults take, can have a profound effect on tomorrow’s society. Look after the children of today, act in their best interests and do not take decisions that are solely in the interests of adults – even when deciding whether to allow embryo freezing and divorce – because these decisions will have a profound effect on today’s kids’ childhood and on tomorrow’s society.

Last but not least, a reference to article 12(1) of the Convention: “States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child....”

I suggest both the pro- and anti- lobby groups see and consider what the children think, especially where the divorce debate is concerned.

Dr Mifsud is coordinator of StateCareAndMore.eu, the free online journal dealing in citizens’ rights.