Replace the IVF Bill legislative process with in-depth, honest and inclusive consultation.

We welcome the recent statement by the Health Minister confirming further consultation on the Embryo Protection (Amendment) Bill. The Bill’s complex themes require in-depth, honest and inclusive consultation to ensure their appropriate exploration and understanding. We also welcome the removal of the existing discriminatory ban on access to medically assisted procreation by same-sex couples.

It is also positively noted that the Bill endorses our call for the decriminalisation of egg and sperm donation, as we feel that the present law constitutes an unjust interference of a person’s rights to physical integrity. However, we feel that Bill cannot be adopted in its present form as it raises extremely serious human rights concerns that cannot be dismissed.

Contrary to statements made in Parliament, our earlier call for the removal of the present law’s illegal discriminatory treatment of same sex couples is really not about the assertation of the right to have children. Whilst Article 16 of the Universal Declaration of Human Rights requires States to permit, encourage and support the foundation of families, there is no clearly stated duty of the State to provide medically assisted procreation services.

However, the primary duty of States not to discriminate between persons on the basis of their sexual orientation effectively means that, once a State is offering or regulating such a service, this offering or regulation cannot be done in a manner that creates or tolerates any form of prohibited discrimination. The present legislation is tantamount to a law stating that homosexual persons are prohibited from using public transport and is, as such, a blatant violation of Malta’s Constitutional protection against discrimination.

We are not convinced that the sensitive context within which these decisions will be taken, with extremely high levels of anxiety and stress, are conducive to the provisions of a truly free and informed consent.

As such, we feel that is violates the parents’ right to found a family, the right to privacy and could also – in specific circumstances – amount to inhuman and degrading treatment.

We are also extremely concerned at the procedure whereby embryos could, under specific circumstances, be ‘donated’ or ‘adopted’. Together with the complex ethical and social issues such a procedure involves we feel that the proposed procedure could be tantamount to a forced adoption. We are not convinced that the sensitive context within which these decisions will be taken, with extremely high levels of anxiety and stress, are conducive to the provisions of a truly free and informed consent.

As such, we feel that is violates the parents’ right to found a family, the right to privacy and could also – in specific circumstances – amount to inhuman and degrading treatment. In this regard, we also underline that the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) establishes “the right for women to decide freely and responsibly on the number and spacing of their children…” (Article 16(1)(e)).

We also question the suitability of the Embryo Protection Authority in assessing whether prospective adoptive parents are ‘suitable’ or ‘eligible’ for adopting an embryo, as also the nature of this ‘adoption’ or ‘donation’ procedure itself. Adoption of children is a strictly regulated regime that seeks to ensure – at all stages – the best interests of the child. Adoption legislation stipulates eligibility criteria, assessment procedures, and monitoring requirements, and all adoption procedures are conducted by specialised entities that seek to ensure the highest possible standards of care and protection of children.

We are not convinced that the Embryo Protection Authority and the related Protocol – as yet unpublished – are able to guarantee the best interests of the adopted embryos.

Yet our experiences with vulnerable and marginalised women – including women living in poverty, women involved in prostitution, migrant women and transgender women – requires us to adopt and advocate for an extremely cautious approach.

In relation to gestation by substitution (‘surrogacy’), we reiterate our serious concern that the ethical and social dimension of this procedure have barely been touched upon in the present consultation. In principle, we believe that this could be a legitimate pathway to parenthood for several couples, and we also endorse a legislative and policy that acknowledges a woman’s physical and psychological autonomy. Yet our experiences with vulnerable and marginalised women – including women living in poverty, women involved in prostitution, migrant women and transgender women – requires us to adopt and advocate for an extremely cautious approach.

Furthermore, instead of presenting its views, procedures and guarantees in relation to gestation by substitution, the Bill abdicates this responsibility to Ministerial regulations. Despite the Minister’s recent assurances that these regulations will be publicly available for discussion and commentary, we stress that issues of such human, social and national importance should be regulated in the most formal and transparent manner, whereby future amendments would also require public and Parliamentary scrutiny.

On a more general note, several provisions in the Bill lack clarity as to their meaning, implications and future regulation (in view of the unpublished Protocol and Regulations). It is impossible for the nation to endorse such an important law if it is unable to understand it’s most important provisions.

In view of the above considerations, we urge the Minister of Health to immediately halt the legislative process and opt for a slower and more inclusive consultation process. Specifically, we urge the Minister to organise or facilitate the organisation of public discussions and stakeholder meetings on specific aspects of the proposed legislation.

The dignity and rights of prospective parents and future children deserve the highest form of legislative and social protection, and these can only be achieved if civil society organisations, medical practitioners, academics, and parliamentarians carefully examine the relevant themes.

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