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IVF and human rights - Silvan Agius and Gabi Calleja

Today is the International Day against Homophobia and Transphobia (IDAHOT). Following a third successive number one placement on the ILGA-Europe Rainbow Index, many in the lesbian, gay, bisexual, trans and genderqueer community in Malta will surely be reflecting on the progress that was made in the field of LGBTIQ equality in a relatively short period of time and how this has a direct impact on their daily lives.

This progress did not happen by accident. Rather, it happened by design.

The approach of the movement was always human rights based. Additionally, it never sought to achieve anything that was not open to others, or anything that trespasses over the rights of others. In fact, not one of the laws affirming LGBTIQ people’s place in Maltese society singles it out. Instead, all of those laws have a mainstream effect and protect all persons against discrimination or ill treatment.

It is with this in mind that we reflect critically from a secular perspective on the debate surrounding the proposed amendments to the Embryo Protection Act. A number of arguments have been made against the practice of embryo freezing mainly based on the assertion that human life begins at conception, and that some embryos may be lost during the freezing and thawing process.

 Several of those making this claim go further and state that the embryos enjoy a ‘right to life’ under the Universal Declaration of Human Rights. They do not. Neither do they under the European Convention on Human Rights.

The scientific consensus is that embryos should not be considered the same as fully developed human beings. Indeed, two-thirds of embryos fail to develop regardless of the method of conception used. Embryo freezing on the other hand is a fully legitimate practice which increases the possibility of conception significantly and reduces unnecessary suffering in the process.

The practice of gametes donation varies from country to country. The United Kingdom, Australia, New Zealand, Norway and Sweden have decided to ban anonymous gametes donation mainly on the premise that the eventual offspring has the right to know their genetic origin. Other countries such as the US and Canada allow for both anonymous and known donor options. All countries that banned anonymous gamete donation experienced a decline in the donor supply and struggled to meet the demand.

There is, in effect, no international consensus that there is the right to know the identity of one’s biological parents. It would be impossible to enforce without infringing on the right to privacy of others as evidenced by Maltese public policy that allows for the parent giving birth to declare ‘father unknown’ as well as the presumption of parenthood clause with respect to children born into marriage or a civil union.

Altruistic surrogacy, when well-regulated and enforced, respects the principles of self-determination and bodily integrity

Moreover, while in the case of single persons or same-sex couples questions around the other biological parent will undoubtedly arise, this is not the case for heterosexual couples who may choose (and often do) to not disclose such information to their children. Claims have also been made that the current provisions which ban gametes donation by third parties are not discriminatory because they apply to all and it is not the fault of the state if same-sex couples or single persons are unable to have children under these conditions given the reproductive process.

This also lacks legal basis given that anti-discrimination provisions recognise the principle of indirect discrimination with respect to measures that impact negatively on one category over another despite being applied equally to all.

There has also been vociferous opposition to the proposal to introduce altruistic surrogacy claiming that this is tantamount to the commodification of women’s bodies and may lead to the exploitation of women. The fact that some countries like Sweden and Finland have banned all forms of surrogacy has been presented as proof of its dangers and as justification for banning it.

 They fail to mention that a number of European countries allow for altruistic surrogacy. These include the United Kingdom, Denmark, Greece and Portugal while in a number of other countries such as Ireland and the Czech Republic; it remains unregulated and therefore possible.

Altruistic surrogacy, when well-regulated and enforced, respects the principles of self-determination and bodily integrity and provides the opportunity for individuals to assist those who might otherwise not be able to become parents. It also reduces the risk that intended parents seek access to commercial surrogacy to fulfil their desire to become parents.

The current Embryo Protection Act is both unconstitutional and ineffective. The proposed amendments fall short of international best practices, and already point towards a compromise between the more conservative and progressive forces of society.

We now need to ensure that the amendments proposed go through for better outcomes for heterosexual couples and new parental opportunities for LGBTIQ couples and single persons alike.

Silvan Agius is director, Human Rights and Integration Directorate. Gabi Calleja is chair of the LGBTIQ Consultative Council.

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