The Embryo Protection Act 2012 has the stated aim of “providing for the protection of human embryos” in procedures of medically assisted procreation. Since its enactment, the law has provided for and regulated practices such as in vitro fertilisation (IVF) and the freezing of gametes. This was a step in the right direction.
Among other things, the law as it currently stands prohibits the cryo-preservation (freezing) of embryos. The law defines an embryo as “the human organism that results from the fertilisation of a human egg cell by a human sperm cell which is capable of developing”. This definition follows the prevalent view in embryology that embryos are human beings in the earliest stage of their existence.
The aims of the Bill tabled in Parliament entitled ‘An Act to amend the Embryo Protection Act’, include “the freezing of fertilised eggs” (embryos) and the “de-criminalisation of non-commercial surrogacy”.
While the purpose of the principal Act it seeks to amend remains unchanged, some key provisions of the Bill effectively flout, undermine and contradict the very purpose of the law of which they will form part if approved, namely that of protecting the human embryo.
This defies the basic principles of logic and good legislation.
Amendments contained in the Bill effectively expose the human embryo to risk by opening up and allowing the possibility for its foreseeable and implicitly intentional destruction. It is a statistically known fact that a number of embryos die in the thawing process.
This is, of course, in no way comparable to a natural miscarriage, since their deaths result from a procedure that envisages this very likely possibility at its outset.
Moreover, the law can offer no guarantee that all frozen embryos will be adopted, or that no accidental or intentional malfunction of storage facilities will occur, resulting in their death. On this count, too, the proposed amendments fail to fulfil the purpose of the principal Act they seek to modify. Rather than protecting the embryo, they place it unmistakably at risk.
Key provisions of the Bill effectively flout, undermine and contradict the very purpose of the law of which they will form part if approved
Beyond the cloud of rhetoric, these amendments introduce into our law the principle that the State, through its laws, may rescind its obligation to protect human beings and sanction procedures that effectively expose them to the risk of dying. Legislators who are being called upon to vote on these amendments ought to consider very carefully the implications and ramifications of what they are being asked to assent to. And I am not referring specifically to abortion.
The Bill also includes a provision that would allow for “altruistic surrogacy”, which is understood as surrogacy for non-profit and non-commercial purposes.
In recent years, countries that can hardly be labelled as conservative, such as Finland, Germany, Norways and Sweden, have banned all forms of surrogacy after carrying out a series of studies and fully-fledged inquiries.
The European Parliament has not so long ago condemned the practice of surrogacy on the basis that “it undermines the human dignity of the woman since her body and reproductive functions are used as a commodity”.
Surrogacy has also been met with opposition by an array of human rights, women’s rights and LGBT rights activists in various countries.
This at least suggests that discussions need to take place before – and not after – such a law is introduced. On this point, those promoting the Bill on the grounds of equality surely seem to be employing this concept in a rather myopic and constricted fashion.
Here in Malta, Parliament is being given neither the opportunity nor the time to carry out and evaluate studies on the implications of so-called “altruistic surrogacy”. Members of Parliament are simply being asked to agree to authorise a minister to issue a legal notice prescribing “the manner in which altruistic surrogacy shall be effected and for any matter incidental and ancillary thereto”.
Matters of substance aside, the manner in which the Bill is being rushed through the parliamentary process is appalling and questionable. Political decency and respect for the deliberative nature of the democratic process would have dictated that a legislative initiative of such consequence must follow the most rigorous and open form of scrutiny and deliberation.
Instead, Parliament is being asked to get it over and done over two weeks. In the meantime, experts, specialists and the concerned public keep voicing their apprehension.
Current legislation does, in my view, require fine-tuning to offer broader access to medically-assisted procreation. However, this cannot be achieved at all costs and certainly not through rash legislation which in certain cases contradicts the very purpose of the law while reducing human beings to objects and commodities.
The decent thing to do at this stage is for Parliament to reject the Bill or at least to stall it, pending in-depth and extensive consultations that would allow for properly informed decision-making.
Anything short of that would be utterly and tragically reckless.
Jean-Paul De Lucca is senior lecturer in philosophy at the University of Malta.