Understanding government’s remit on IVF and surrogacy | Maria Brown

It is not the first time that the birth of a child unearths deeply rooted contradictions that would have been haunting while enslaving relationships between the people concerned for years on end. A pertinent question is: Should these contradictions inform or underpin the decision as to whether that child should or should not be born?

The current debates on the proposed amendments to IVF legislation in Malta and the decriminalisation of non-commercial surrogacy are exhuming age-old “disjunctures” and contradictions that characterise Maltese society. They include the disjuncture between a mainstream culture deeply rooted in Catholic values, and the co-existing secularised laws, lay practices and lifestyles, such as cohabitation and same-sex marriage.

The debates have also exhumed the past disjuncture between the Labour Party and the Malta archdiocese. Having the archdiocese and the Nationalist Party pulling the same end of the rope half a century later may suggest an irreconcilability between voting Labour and being Catholic. Yet this is not only a spurious conclusion, but a misleading one because of the different variables at play today: namely that it was a Nationalist Party that actually spearheaded IVF legislation in 2012; that the Maltese Catholic Church no longer uses the sacristy to baptise children born out of wedlock or to wed Labour voters; and that the Labour Party is not in Opposition, but elected with an undisputable majority and a clear mandate to spearhead the current legislature.

More significantly, the Maltese are capable of embracing these socio-historical and cultural contradictions by taking informed, active, selective and customised decisions and life directions. They may choose to practise Catholic teachings (if at all, or, possibly, among other points of reference) whilst simultaneously make legal claims granted to them as citizens by the legislation in place at a given time (if considered necessary).

The upshot: those who marry in Church for reasons of faith are also capable of reconciling their Catholic identity with claiming the legal right to divorce, should the need arise for them or for others; and even baptising one’s newborn can still hold spiritual value for the non-practising.

By no means is this tantamount to an ‘anything goes’ attitude, let alone hypocrisy or inconsistency. On the contrary, personalised engagement with religious practices and with legal claims may be informed by overarching principles. For instance, the division between Church and State draws on distilled principles, such as freedom of expression.

A related implication is that the same Maltese society that can reconcile and synthesise such predicaments, deserves the best possible regulative framework to sustain its legal claims concerning IVF and non-commercial surrogacy.

In other words, it is possible to reconcile all these contradictions because the proposed amendments and the decriminalisation of non-commercial surrogacy are, in principle, seeking an extension of the outreach to life – a principle that none of the debating parties are contesting.

Today the government’s mandate is primarily being questioned as to how this outreach to life is legally justifiable. Current debates to date have also sought answers in scientific knowledge and data. For example, the success rate of fertilisation following oocyte vitrification (egg freezing) compared to that of frozen embryo thawing and transfer, estimates of prospective number of surplus embryos and biological links to the gestational mother.

Yet, as much as I trust scientific knowledge and research, I am very uncomfortable with the rhetoric that does not acknowledge the political and value-laden nature of science and technology. Even science and technology are burdened with their own disjunctures and contradictions as any other dimension that humanity engages with.

The Labour Party’s bid today at seeking enhanced equity, as articulated in both its statute and its last electoral manifesto, is a foundational one. The government’s mandate targeting enhanced equity cannot be enacted as long as it discriminates against cohorts of prospective parents, for example, by limiting the parenthood options of prospective homosexual male parents, or those medically unable to have children, to the adoption of an already-born child – as opposed to a heterosexual couple who can (presently already) benefit from IVF.

So it follows that, unless the proposed legal amendments address surrogacy, the IVF legislation would be a half-baked cake: incomplete but also likely to scald mouths and make us sick. And by advocating the altruistic, non-commercial component and identifying a surrogate who is a “relative” or “family member”, the proposed bill offers a platform where competing principles, values and scientific paradigms can be reconciled. Hence, the rationale underpinning widespread consultation to critically engage with matters at stake, down to the level of terminology, as recently announced by Minister Fearne.

Ultimately, the conundrum demands a focus on the needs of the people articulating a cry for life. These voices include those of prospective parents and surrogate volunteers, who are willing to undergo and invest in the physical and emotional turmoil and the risks implied in the IVF treatment and non-commercial surrogacy. These voices also include those of the prospective frozen embryo and the unborn child in the surrogate’s womb.

This is why the proposed bill is the government’s response to that cry for life, with life. Far from evidence of a soulless state, the bill and related consultations seek the principle of equity for which the Labour Party was given a mandate. The bill aims to provide the most equitable legal framework possible to equip individuals – alive and yet to be born – with the potentially required legal claims. If needed, these legal claims would resource individuals as they progress in conciliating disjunctured and contradictory principles, values and paradigms characterising their unique personal and social realities.