The ruckus on IVF leave is complex. So are the PN’s reasons

So what exactly happened in June? 

Civil Liberties Minister Helena Dalli published a legal notice making it possible for people undergoing IVF treatment to claim 100 hours of leave on full pay. The regulation is an employment issue and does not distinguish between treatment received in Malta or abroad.

Wasn’t this discussed in Parliament?

No. The law empowers the minister to introduce such regulations through a legal notice. A legal notice does not require a parliamentary debate. However, MPs can challenge a legal notice and force a parliamentary vote after its introduction. This is what the PN has done. MPs David Agius and Stephen Spiteri gave notice of a motion asking for changes to the IVF leave legal notice.

But what is the PN objecting to?

The legal definitions of ‘prospective parents’ and ‘medically assisted procreation’ listed in the legal notice. The PN is saying the definitions in the legal notice contradict those listed in the Embryo Protection Act, which is the law that regulates IVF treatment. They want the definitions in the legal notice to be the same as those in the IVF law.

Is there a contradiction in the definitions?

The legal notice does give different definitions to the terms ‘prospective parents’ and ‘medically assisted procreation’ than those of the IVF law. Whether this can be said to be a “contradiction” is open to interpretation because the legal notice is linked to the Employment and Industrial Relations Act and not the Embryo Protection Act, which regulates who can undergo IVF in Malta.

How is ‘prospective parents’ defined in the legal notice?

“Two persons who are united in marriage, civil union, cohabitation, or who have attained the age of majority and are in a stable relationship with each other.”

And how is this different from the definition in the IVF law?

The Embryo Protection Act defines a prospective parent as follows: “Either of two persons of the opposite sex who are united in marriage, or who have attained the age of majority and are in a stable relationship with each other.”

What is so significant about the difference?

The legal notice on IVF leave does not distinguish between opposite sex couples and lesbians. Anyone who is in some form of union or stable relationship and is trying to conceive through IVF is eligible for leave. The Embryo Protection Act, on the other hand, limits the definition of prospective parents to opposite sex couples.

Why should this be a problem?

Some in the PN have argued that the legal notice is trying to introduce by stealth a new definition of prospective parents to pave the way for egg and sperm donation.

Hold on! What have egg and sperm donation to do with all this?

Well, the Embryo Protection Act only allows IVF to be performed on women who are in a relationship with a man. The law also bars egg and sperm donation. For lesbian couples or even opposite sex couples that suffer sterility, gamete donation is the only way they can conceive through IVF. Under existing legislation lesbians and sterile couples cannot obtain IVF in Malta but some go to the expense of receiving treatment abroad in countries where gamete donation is legal. 

So, does the leave legal notice determine who can undergo IVF treatment?

No. It is only the Embryo Protection Act that defines who can have access to IVF. As things stand, lesbians and sterile opposite sex couples cannot receive IVF treatment in Malta, irrespective of the legal notice, but they will still benefit from the leave measure if they undergo the treatment abroad.

What will happen if the PN has its way?

The new leave regulations will apply only to opposite sex couples who conceive through IVF, using their own eggs and sperm. The PN’s motion will effectively bar lesbians and sterile couples, who go abroad to conceive through gamete donation, from benefitting from 100 hours of leave.

Why is the PN so concerned?

Well, the reason is probably more political than legal. The party knows that the government is committed to change the Embryo Protection Act and make IVF treatment in Malta more accessible. Gamete donation looks likely to be introduced and will undoubtedly lead to an ethically-charged debate that can cause some serious tension within the PN. Challenging the legal notice on leave may have been the new PN leader’s way of trying to set the agenda, nationally but more importantly, internally.

So does the PN motion face internal opposition?

Yes. Not everyone in the PN agrees with the party’s decision to challenge the legal notice on leave. Therese Comodini Cachia has gone on record expressing disagreement with the proposed amendment and called on her party to allow a free vote on the matter.