My intention in this article is not to set forth my personal opinion on the matter of IVF but rather to bring to light another matter that little-to-no consideration has yet been given – the issue of consent that is dealt with in article 18 of the Bill.
In layman terms this article is putting forward that each prospective parent looking to avail of medically assisted procreation procedures has to make a decision from beforehand.
The choices are either to consent to the freezing of the surplus embryos after the first cycle (in which case five eggs are fertilised but two are implanted) and if not availed of, these eggs are to be donated; or the alternative choice is not to give such consent and consequently the two eggs fertilised will be implanted.
Consent is given in writing and may be withdrawn in writing before fertilisation, at which point it becomes irrevocable.
So, my question is, what happens if one of the prospective parents has a subsequent change of heart and wants to withdraw that consent?
The most plausible reason for this would be the couple going separate ways.
One may say that I am envisaging a needle in a haystack. However, this very case was the contentious issue in the case Evans vs the United Kingdom, which ended up before the European Court of Human Rights in Strasbourg – the legal watchdog for fundamental human rights.
In this case, the applicant and her partner had availed of fertility treatments and had frozen embryos since the applicant had to have her ovaries removed due to being diagnosed with a pre-cancerous condition.
The applicant was informed that it would take two years after her surgery before which she could have her embryos im-planted. It so happened that during those two years, the couple split up.
The legal battle arose when the applicant wanted to have some of the frozen embryos implanted, whereas her ex-partner objected to this as he no longer wanted to be a co-parent with her. Ms Evans said that she had a fundamental human right to her embryos and that her legal interest should take precedence over that of her ex-partner, as those preserved embryos were the only way for her to have children with whom she shared a genetic link.
The Bill leaves doors open to legal battles which will cause the parties involved a great deal of emotional pain and suffering
On the other hand, her ex-partner argued that just as she had a fundamental human right to become a parent, so did he have a fundamental human right not to become a parent with her and that it was within his right to withdraw the consent that he had given prior to the fertility treatment.
The court in this case stated that domestic law in no way stopped Ms Evans from “becoming a mother in a social, legal, or even physical sense, since there was no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes”, and hence found no violation of her fundamental human rights.
It would be only a matter of time before a similar case would arise before the courts in Malta. However, since Maltese law will not provide for the discarding of the frozen embryos, the court will be faced with different choices.
The Maltese court will have to decide whether to uphold one party’s wish to have the preserved embryos implanted notwithstanding the expressed objections of the other party.
This would raise a number of pertinent legal issues revolving around consent.
Can the court override one’s lack of consent in order to preserve life and genetic ties justified by the prior consent given by that party before the fertilisation?
This would mean that a man may be forced to have a child with an ex-partner when he solely wants to put that relationship behind him and move on, keeping in mind the legal repercussions that come with parenthood.
The alternative would be for the court to order the embryos to be freed for adoption, denying that woman the chance to have a genetic link with her children.
This fascinating scenario will one day come up in court should the draft law remain as is. Will the court follow the authoritative court in Strasbourg or will the court give more weight to the supreme interest of the child-to-be to be raised within their own family as far as this is conducive to their well-being?
I am in no way advocating the destruction of embryos, however I do believe that the draft law leaves doors open to legal battles which will cause the parties involved a great deal of emotional pain and suffering along the way, and that is counter to the spirit of the same law.
Daniela Azzopardi Bonanno is an advocate in private practice with a special interest in family law.