I don’t think that the acronym IVF needs much of an introduction these days for it has been in use worldwide for years now and is the process where sperm fertilizes the egg in the laboratory rather than in the Fallopian Tube; the fertilized embryos growing in the lab over a number of days – a process known as the blastocyst stage – before being transferred into the female uterus.

What is less known today is the concept of ‘patria potestas’. As long as Latin was one of the languages taught in schools, this concept was well-known. Now, in all probability, many understand the term ‘patria’ as fatherland and ‘potestas’ as power, which is another interpretation of this phrase. Historically, it stood for a more complex legal term used in Roman Family Law which translated means the absolute authority of a father.

‘Patria potestas’ was the basic rule on which Roman family law revolved and clearly the power over the family lay squarely with the father. The head of a family exercised control over his children and even his more remote male descendants – whatever their age – as well as those brought into the family by adoption. Originally this also meant that he could even inflict capital punishment on his children and he alone had any rights to private law. Upon marriage, a daughter ceased being under the potestas of the father and came under her husband’s “manus” – a similar power of the husband over his wife. Perhaps, in our modern world, this concept may appear obsolete and very undemocratic because ‘ownership’ of children is now extended to both parents. For these reasons, the Roman concept of Patria Potestas also governed human procreation.

With the new amendments to Malta’s IVF laws, this old and established precept, where the responsibility of procreation lies squarely with the parents is subtly being transferred to the State. I find this concept extremely dangerous and unacceptable. The responsibility of procreation should remain solely with the parents. The State is usurping this power from the parents and this is being done in the name of ‘equality’.  Indeed, what we are actually doing in Malta is repeating failed Communist experiments of the last century. These concepts did not work in economy and do not work in social science.

Incidentally, I have referred to Roman law with a purpose. Roman legislation did not view the foetus as a human being and its destruction did not constitute murder. The reason for this approach lay with the concept of ‘patria potestas’. Even ownership of the foetus was never envisioned - as is being envisaged in our proposed amendments - to be owned by the State. According to Roman Law, the father (and not the mother) held the right over the life or death of his children. In fact, the mother even needed her husband’s permission to have an abortion. Only single mothers had the right to abort or to expose their newly born babies. It was between the first century B.C. and the first century A.D. that abortion became rather common in the high society of the Roman World. Yet, the ‘potestas’ remained with the father and only in later times did the father’s power of life and death diminish, becoming lighter in punishment. Eventually, Christianity would remove the right of the father to kill his offspring. When this right was removed, it was considered an enactment benefitting women, as the husband in earlier times could dispose even of his babies, without his wife’s consent and this was never thought as usurpation on the part of the father over his children or even procreation.

 

What is being said to explain the current enactment is that this law is going to give a better chance to infertile heterosexual couples to have a baby. In truth, infertile couples already have such a chance. The major change would be that infertile couples would run a lower risk of ending up  with twins or more babies. Any extra embryos would now be frozen and end up being donated!  Donated by the State to whom?

For this reason, the proposed amendments are a worsening of rights. Freezing is being used here to hold the sword of Damocles over heterosexual couples, who are infertile. They are being told that if they want to have more than two eggs fertilized, they need to sign a letter by which they automatically donate any extra embryos to the State. The underlying catch is that if they do not accept this option, their chances of treatment are nil. As expected, this is not being stated in black and white but knowing how our system works, this will be the natural consequence and unfortunate end-result. The State or its acolytes can decide how to dispose of any extra embryos and worse still, choose in whom to implant them, without the original parents having any say in the matter. All this because the State would have become the owner of ‘potential children’. With all their political arrogance, not even the Romans would ever have been so daring as to take away the ‘potestas’ of procreation from the parents.

I can understand the problem the legislator is facing to solve a scientific dilemma which, in reality, the same legislator has created through the proposed changes to our IVF law. For someone  coming from the humanities, it is inconceivable that the State decides arbitrarily what to do with embryos without having to resort to the consent of the parents because consent had already been given in order for them to actually receive treatment and without this signature, they would have been denied treatment.

What does this also mean? It means that one risks having children or siblings being raised by other couples without knowing of their existence. These siblings have the right to know about their real biological parents. I am sure that in the future, this same law will end up being challenged in our courts by parents who would have signed such a consent. Eventually, for one reason or another, they would have thought over the subject later on in life and would end up claiming back their babies who in the meantime have been brought up by another couple. 

The true reason for changing the law is not to accommodate infertile couples but to enable same-sex couples to have children. Singles are also being mentioned as potential beneficiaries but singles are being mentioned as a screen to hide the true motives of the State. I am not so sure how many singles want to have children in this way. Certainly the average singles who are hetero would in all probability first seek to have children the normal way. It is only same sex couples who will benefit most from this type of assistance. But the legislator knows, that should parents be asked if they want to donate their extra embryos to same sex couples, the chances are that the answer will be no. 

I may sound controversial but I have no problem if these couples are assisted to have children. But please do not call this a case of equal opportunities. Infertility in this case is not the physiological result but the result of this type of sexual relationship. If same sex couples want babies, they should be given such a right provided that they obtain the embryos from couples who do want to donate them specifically to them. Donation should never be the prerogative of the State. Embryos should remain the property of the parents. The donation of extra embryos to same sex couples should never be an a priori condition, as is being suggested, in order to obtain IVF treatment. Such practices, in my opinion, are simply going to weaken rather than strengthen issues of equality.

Equality will end up being associated with coercive political bullying or political blackmail.