A couple have lost their legal battle against the Embryo Protection Authority over its refusal to allow them to go through another IVF cycle because the woman had turned 43.
The couple unsuccessfully argued that the authority’s refusal was in breach of their human right for the respect of their private and family life. They argued that the 25 to 42 age bracket criteria for eligibility was impinging on this right.
But the Constitutional Court, presided over by Chief Justice Joseph Azzopardi, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, upheld an earlier decision of the First Hall of the Civil Court that the maximum age was “medically justified” and had been determined following wide consultation among the most experienced professionals in the field.
The couple, who The Sunday Times of Malta is choosing not to name out of respect for their privacy, were struggling to conceive so they began looking at the possibility of IVF.
The court heard that in 2014 the couple filed an application with the Embryo Protection Authority to benefit from the assisted procreation procedure. Since the woman was approaching the maximum permissible age, she was given permission to carry out the IVF cycle privately at the St James Conception Unit at the state’s expense.
Under the guidance of local IVF pioneer Josie Muscat, the couple tried an IVF cycle but failed. They applied for a second cycle but it was refused because the woman had turned 43 and was veering towards 44.
Subsequently, the couple tried IVF treatment abroad but this was discontinued since it was proving too expensive, costing them €5,000 in only the first month.
In the case they filed against the Embryo Protection Authority they claimed that making the state-funded IVF treatment available to women aged between 25 and 42 was discriminatory in the woman’s regard.
The protocol states: “… the EPA feels that it is desirable that the woman who is entitled to treatment should be between the age of 25 and 42 years…”
The woman felt the state was interfering in her decision on when she could try to have children and when to stop trying
The use of the word ‘desirable’ meant that it was open to interpretation and not a hard and fast rule, the couple argued.
The woman told the court she felt the state was interfering in her decision on when she could try to have children and when to stop trying.
Her husband argued that this also constituted discrimination between those who could afford treatment abroad and those who could not, insisting that it should be a medical examination that determined whether a couple should attempt the treatment and not the woman’s date of birth.
Dr Muscat testified that despite having already turned 43, the woman was still able to conceive as she had good quality ova.
EPA executive director Simone Attard testified that the minimum and maximum ages were drawn up following extensive consultation with several experts in the field. They told the court that at that age the success rate was very low and that the risk of having a miscarriage was higher outside that age bracket.
On the basis of these testimonies, the court was satisfied that the age limit had been imposed on medically legitimate grounds so it dismissed the couple’s arguments.