What bothers government politicians most about InVitro Fertilization (IVF) legislation are consequential issues. Some media contributors have commented that if IVF is given only to married couples, this would constitute a form of discrimination against co-habiting couples, homosexual couples and indeed single (potential) parents who simply wish to have a child and do not want to marry. As commented in this column previously, some couples are also seeing the ‘benefit’ of cohabiting and not getting officially married because of the advantages not only in housing and benefits, but also in ‘settling’ their children in a Church school (an abuse, of course, of otherwise humanitarian aid). These parents do not need to go through the normal channels of polls but are assured a post for their child. This is not mere speculation as I have had young parents admit this to me in my practice.

Regarding the IVF issue, it is true that in today’s world, any law that is specified for a particular group of people may indeed be interpreted, or factually would be, discriminatory by other groups of people. The fact is that the world, as we say, was not built in seven days, and we are moving at a pace which bewilders all, not least politicians. A recent column by Fr Joe Borg pointed out how even the Church authorities may find themselves accused of discrimination for using Church venues only for what they consider good causes, and would not have a right, for example, to refuse a group of witches the use of a hall, or not have a right to give double bedrooms in hostels used by the Church for retreats, for married couples only, following the Church’s teaching. Of course this would have extreme consequences, which I doubt will go uncontested. Should we then not be allowed to refuse communion to those whom the Church considers cannot receive it? Should we introduce legislation favouring abortion or euthanasia when most other countries adopt it and thus be seen that we discriminate against our own people?

If the EU has accepted our Constitution, I believe that we are able to legislate within its precepts without discriminating against anybody. The point which needs to be carried through however is that this is not a law about which couples are legitimate, neither about homosexuality, and neither about the right of would-be single parents. It is simply a law to allow IVF, but to regulate it within our existing structures. Therefore we need not concern ourselves, at this stage, who is entitled or not. The government has a right to see, especially if it is to offer the services through Mater Dei, that consequential issues around IVF itself are regulated. There is no doubt therefore that if in our Constitution, we assert that the Roman Catholic religion is our official religion, unless this is changed in the interim, any regulation of IVF have to fit around this law. Freedom of religion does not mean that if a religion allows homosexual couples to use IVF in other countries, then we should do this. This is not discriminating against homosexuals, but simply using existing legislation. At a later stage, should other forms of relationships come to rest on legal grounds, then of course they would automatically and legitimately invoke their rights.

Incidentally Pope John Paul I had spoken out in favour of homosexuals, actually saying that the Church and everyone else has to answer to God for the suffering we may have caused these individuals. But this does not translate immediately into a law not being formulated within the parameters of the faith as dictated by our constitution.

Now there is a clear dilemma here as well. For according to the teaching of the Church IVF is illicit. But the government has seen an obligation not to make IVF illegal. Yet it still has a right to adopt standards that are important for our normative values, such as the protection of life and the protection of the family. What constitutes a ‘family’ is then another different matter, for a different part of the law. It is not the IVF legislation that will or should state this. In the definitions that every law gives (and I am not a lawyer) one can simply point to other parts of the legislature, for example of what constitutes a legal marriage.

It is clear however that the law can impose that freezing of embryos be prohibited, and that one fertilizes only one or two ova at a time. Other more liberal countries have done this and I do not see why it will not be possible here. Moreover the fact that IVF, as in nature, carries with it significant risks of miscarriages, the legislator can inform that this would be without prejudice to the laws on abortion; the fact that on the opinion of some there is some form of known intention to lose eighty or so percent through miscarriages does not mean that in actual fact one is inducing abortions and can only be one of the many interpretations no matter how strongly one asserts himself.

I personally am strongly against abortion, but would not go so far as to say that just because a method as IVF does not perform better than nature (in the natural process about 80 per cent of fertilized eggs are miscarried as well), then this foreseen but unintended miscarriage is an abortion. If the technology were better than nature we would be obliged to use it then, as we would have reason to say that since the technology causes less loss of life than the natural process, we should therefore resort to the technology. The fact is that we do not know the reason why many embryos do not implant themselves in the uterus, both in nature as well as through IVF. The most commonly held scientific belief is that they have abnormalities that nature thus discards. It would be nature itself therefore that discards the embryos introduced into the woman following IVF.

The law can also protect marriage by assuring that it is given to ‘legitimate couples’, leaving other parts of the law, or future legislation, to interpret this. A law on IVF is not a law on what constitutes a family. Nevertheless the law can make exceptions in certain cases. One may not extend it to all cohabiting couples. For example couples, both partners of which come from separated marriages that lasted several years and produced a number of children each, may probably be prohibited from using IVF. IVF may, in the same way, be restricted to a specified limit beyond natural fertility, prohibiting, thus elderly women from seeking the service. IT would have to give a reason, for example, the protection of resulting children, to introduce this form of selection. It is reasonable to expect at least the government services, which are paid through our taxes, for this service not to be offered as a commodity to all and sundry.

On the other hand we do have the phenomenon of many young couples that separate at an early stage, most probably because of changing pressures in society and lack of serious preparation. Many of these people usually seek annulments and in the meantime form long-lasting relationships with partners they will eventually marry again, once the annulment procedures go through. Yet the woman’s biological clock is ticking away.

It may be wiser to seek a less long road for annulment procedures, but in the meantime it is not fair not to treat this small category of infertile couples. This would be an affirmative action in favour of the family and would put pressure on annulment procedures, which run into years, God only knows why. It is not a matter of making annulments easier, it is simply a matter of assessing cases faster.

Any parent who has seen his son or daughter’s marriage breaking down, would want them to have the possibility of settling down again. Even clergy, in their pastoral care, are known to tell people not to wait for all the proceedings and to get on with their lives. If one had to make a statistic on annulment cases, one would certainly find that the successful cases of annulment were quite clear from the beginning. There is also the abuse that this is good income on those who make a living on these procedures and one suspects that the prolongation may not be incidental.

In conclusion, fear of discrimination need not deter us from regulating IVF through a law. We need to set our standards, and more importantly we need to know whether we want it or not - something which has often been asserted by various ministers. It is not a question to whom we are to offer it; it may be a question on whether to extend it, for humanitarian reasons, to couples who are seeking to continue their lives within existing legal frameworks. We have to act with what the law presently sees as legal unions. Should parliament decide to look into legal unions and change definitions, that would be another matter and then any new acceptable union would be entitled to everything the law has to offer. But arguing that one can win a battle on grounds of discrimination means that one can even now win the same form of battle, for example, on joint income tax returns. They may feel justly discriminated. But legally, I doubt it.

Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta, specialized in Philosophy of Medicine. He is also Ethics Advisor to the Medical Council of Malta and is former president of the Malta College of Family Doctors