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Public policy in IVF issues

After the lively ongoing national debate on the moral and legal aspects of in-vitro-fertilisation, the bishops’ much expected pastoral letter on assisted procreation is to be welcomed as an important reference point for the enlightenment of conscience. It is the conscience not only of those married couples facing the condition of infertility and are hoping to find a solution in reproductive technology but also to politicians who, after their summer recess, will find in their parliamentary agenda the long-awaited Protection of the Human Embryos Bill, which is meant to regulate IVF.

Artificial procreation has a societal dimension because it touches fundamental values
- Fr Emmanuel Agius

The moral and ethical issues raised by the bishops’ pastoral letter should not be taken lightly.

It is unfortunate that the bishops’ deep solidarity with infertile couples was articulated in a language that projected a tone and style that some have interpreted as lacking in sensitivity, compassion and empathy.

The pastoral letter is aptly entitled Celebrating Human Life because of its absolute defence of the dignity and right to life and physical integrity of every human being from the moment of conception. The bishops rightly said that the Church, more than any other institution in the world, is a prophetic voice in defence of vulnerable human life.

The doctrinal content of the pastoral letter is clear and unequivocal. The Catholic Church’s moral perspective on IVF, based on the respect of three fundamental goods that are considered as essential for human flourishing, is explicitly articulated.

First, the right to life and to physical integrity of every human being must be respected from conception to natural death. Thus, the human embryo demands unconditional respect that is morally due to every human being. Anything that harms or threatens to harm the dignity of the human being is not to be considered lawful simply because it alleviates the condition of infertility.

Accordingly, the freezing of human embryos, the deliberate destruction of supernumerary human embryos, the genetic selection of human embryos by pre-implantation diagnosis, manipulation or experimentation on human embryos are morally unacceptable.

Secondly, the institution of marriage and the family must be safeguarded. Any fertility treatment with third party involvement is contrary to the unity of marriage and conjugal fidelity. Every child has the right to be conceived and to be born within marriage and from marriage.

Thirdly, the inseparable connection between the two meanings of the conjugal act, namely the “unitive” and the “procreative” meaning, is to be respected. This means that techniques must assist rather than replace the natural conjugal act.

The pastoral letter refers to the relationship between the moral law and public policy on IVF. As expected, this issue cannot be explained thoroughly in a couple of sentences since pastoral letters are usually short documents. For this reason, further clarification is needed to articulate the Church’s position on this matter.

Evidently, the ethical issues involved in IVF are not simply a matter of “private choices”, even if they engage the people concerned so personally and so deeply. Artificial procreation has a societal dimension because it touches fundamental values such as the right to life and the family. It is for this reason that IVF needs regulation. But how is morality related to public policy?

Morality and public policy are both related and distinct.

They are related because morality, at one level, is concerned with the rightness and wrongness of human conduct. The welfare of the community – the proper concern of law – cannot be unrelated to what is judged to be conducive or destructive of human well-being and to what is judged to be morally right or wrong.

The two notions are, however, distinct. Public policy is concerned with the welfare of the community. Only when individual acts have considerable consequences on the maintenance and stability of society (welfare of the community) are they the proper concern of public policy.

The bishops’ statements on morality and public policy should be clarified in the light of the 1987 instruction on the respect for human life in its origin and on the dignity of procreation (Donum Vitae – The Gift of Life) of the Congregation for the Doctrine of the Faith.

This document of the Magisterium carries more weight than the opinion of any theologian. Though the 2008 instruction Dignitas Personae on certain bioethical issue does not refer to the issue of the relationship between moral and civil law, however, it clearly states that “the teaching of Donum Vitae remains completely valid”. This means that the content of chapter three of Donum Vitae on Moral and Civil Law, which is often overlooked, is neither obsolete nor rejected by the Magisterium.

There is absolutely no contradiction between the moral reasoning on law and morality in the bishops’ pastoral letter and chapter three of Donum Vitae. Both documents are consistent with the natural law tradition that has been so influential in the shaping of Catholic moral reasoning. This assumption of natural law theology is that a common morality can be discovered by natural reason.

In their pastoral letter, the bishops rightly plead for a public policy on IVF since “it is… a well-known fact that where civil laws do not regulate the practice of IVF, there is great disorder”. They also rightly maintain that “civil law in respect of assisted procreation should aim to safeguard the three values…, i.e. the value of life and physical integrity of every person, the value of the unitive aspect of marriage and the value of human sexuality in marriage”.

They continue that “men of goodwill who are responsible to draw up legislation are duty bound in conscience to try and achieve the best possible benefits or, as far as possible, to mitigate dangers”.

The bishops’ moral reasoning echoes faithfully the teaching of the Magisterium pronounced in Donum Vitae, which goes even further to state that morality “must sometimes tolerate, for the sake of public order, things which it cannot forbid without a greater evil resulting”.

Then, this authoritative document of the Magisterium continues to explain which of the three fundamental goods cherished by morality cannot be traded off, namely: “a) every human being’s right to life and physical integrity from the moment of conception until death; b) the rights of the family and of marriage as an institution and, in this area, the child’s right to be conceived, brought into the world and brought up by his parents.”

Donum Vitae continues to emphasise that “law cannot tolerate – indeed it must expressly forbid – that human beings, even at the embryonic stage, should be treated as objects of experimentation, be mutilated or destroyed with the excuse that they are superfluous or incapable of developing normally”.

Moreover, “the political authority is bound to guarantee to the institution of the family, upon which society is based, the juridical protection to which it has a right”.

This moral perspective has inspired the Episcopal Conference of England and Wales, way back in 1990, in its reaction to the Human Fertilisation and Embryology Act, which was publicly discussed at that time. The bishops declared that “we do not expect to have all Catholic moral theology imposed by law, or even adopted as public policy… The Catholic Church does not ask that the law of the land should coincide in every respect with the moral law”.

Donum Vitae defends also the health care professionals’ right to conscientious objection vis-a-vis such laws on IVF. It is interesting to note that the Protection of the Human Embryos Bill states that a health care professional is under no obligation to participate in any procedure of any technique of assisted procreation.

As is evident from the title given to the Bill, the aim is clearly to guarantee full protection to the human embryo from the moment of conception. In fact, embryo freezing is prohibited, except in those rare cases where it is necessary due to grave and certified force majeure.

Eventualities of this kind show the risk that IVF poses to human life. Yet, one may argue that the solution is not to prohibit the procedure altogether but, as the bishops rightly say in their pastoral letter, the legislator must seek “to mitigate the dangers” of IVF.

For the sake of a consistent ethics in defence of the human embryo, on a legal level, one may discuss whether this provision should form part of the law (not to leave a legal vacuum with no proper protection to nascent human life in emergency cases) or whether it is more appropriate to regulate the matter by means of a legal notice.

A contentious aspect of the Bill is the eligibility of unmarried couples living in a stable relationship for IVF treatment. We all know that relationships within marriage are themselves fragile. But the institutionalisation of the relationship gives some kind of guarantee of certain stability. If stable relationships within couples seeking IVF treatment are in the best interest of the child, why is access not limited to married couples only or to those whose relationship is at least institutionalised say through a civil union? A prudential judgment on the advisability of this provision from the perspective of a good public policy could only be given after the publication of the cohabitation law.

Now that the Bill is open for public consultation until mid-September, the Catholic community should enter into a constructive, open and proper dialogue with civil society to consolidate the fundamental principles already endorsed in order to continue, as the bishops rightly advised, “to achieve the best possible benefits, or, as far as possible, to mitigate dangers”.

Let us hope that when the Bill is presented in Parliament in October, Catholic politicians will enlighten their conscience by the Church’s teachings in the interest of the common good.

Rev. Prof. Agius is the dean of the Faculty of Theology, University of Malta, and member of the European Group of Ethics in Science and New Technologies (European Commission).

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