When considering the issue of whether to consider morals when enacting legislation, the debate between Lord Devlin, a Law Lord, and Professor Hart comes to mind. Although these debates date back to the sixties, they still throw considerable light on the complex field of morals and legislation to this very day. Devlin’s position can be summarised thus: First, there is a public morality that it is the law’s business to enforce. This morality may be reached through the reason of an ordinary human being and might therefore be called the natural law approach. Second, society’s existence is threatened by deviance from this shared morality of a particular society. Third, that in practice there has to be scope for individual freedom and respect for privacy and therefore the law should only attempt to enforce those items without which society would disintegrate. Fourth, the limits of tolerance are bound to shift from time to time and fifth, that the law is concerned with the minimum not the maximum standards of behaviour.

Professor Hart, of the University of Oxford, challenged Devlin as he maintained that unless conduct involves an identifiable public harm, then it should not be made illegal. The law should confine itself to the prohibition of conduct that would injure others in their person or property or violate public sensitivity or order. He did not agree with Devlin’s view of public morality, nor that society would disintegrate if there were a change in basic moral views. Lastly, he believed that the curtailment of freedom was itself a moral question and required its own justification.

There is common ground between both views, although Devlin emphasizes the integrity of society while Hart’s concern is for human freedom. The common ground requires attention to a social dimension in human conduct and to the public interest in the prevention of social harm.

There are others such as Ronald Dworkin who suggests that fundamental liberties should never be taken away, while more general liberties may be restricted only if they cause harm. Lon Fuller refers to the morality of duty that is related to law. This morality condemns man for failing to respect the basic requirements of social living such as killing one another off. Fuller goes on to say that any law that contains elements of contradiction is a prescription for the very legal system’s failure.

I put forward these snippets I have come across recently because I want to highlight the contradictions of those who are subscribing to the acceptance of the freezing of human embryos during the process of IVF in order to prevent morbidity and mortality in the mother and in any multiple neonates in the perinatal period. One cannot distinguish between the rights of any human life during IVF without causing a contradiction to the legal system as pointed out by Fuller. Besides, both Devlin’s and Hart’s reasoning leads one to conclude that all human life has to be protected by law simply because in Devlin’s case, it is a basic tenet of natural law and important for the upholding of the integrity of society, and in Hart’s case because it injures others in their person. The basic liberty to live a life unobstructed from its arbitrary curtailment would of course be considered as a basic freedom and should be protected under law in Dworkin’s opinion. This is of course not to recall all the international documents on fundamental rights, which list the right to life as one of the more important considerations, not to say anything of our own Maltese Constitution.

Those who argue for strictly best practice scenarios seem to have forgotten that best practice codes might have been drawn up in a country such as the UK, whose history, culture and political decisions might have no reservation not endowing an embryo with the rights consonant to being a human being or person, and would therefore not have any qualms about the freezing or destruction of human life before the proverbial 14 days after fertilization. In the case of Malta, the history, law and culture has been averse to treating a human embryo as anything less than a human being with the full fundamental protection of the law, at least inside the uterus. Therefore Maltese law should not accept the different treatment of a human embryo to any other human being at whatever stage of development even if it happens to be in a test tube! The main issue of those of us against the freezing of human embryos as a necessary condition during IVF, and I emphasize the word necessary in a philosophical manner, is not the actual freezing per se but what has inevitably followed the freezing of embryos in other countries which allow it, leading to their wholesale destruction when they are not used and when they inevitably accumulate as a result of the process of technical commodification. Incidentally, they are either allowed to die, sold as a source of stem cells, used for the testing of cosmetics or used to grow viruses on and produce vaccines, all options with their ultimate destruction being unavoidable and prescient.

With the freezing techniques of ova or oocytes, the whole scenario of embryo freezing can be avoided with equitable results obtained to the freezing of embryos during the IVF process; but even if this were not the case, I would not bring myself to accept the dictum that embryo destruction and freezing would have been the lesser evil in the case! This would be tantamount to giving human beings a different level of dignity! Natural law or reason teaches us that one should do to others what one should want others to do to oneself. All human life should be protected and if we fail to protect it, we would be going down the slippery slope that would eventually lead to a mentality conducive to mass extermination not very different at all from that carried out in the labour camps of Treblinka and Dachau. In view of the dangers presented by the new biotechnologies to human life, the Bioethics Consultative Committee has suggested to the government that the following definition of the human embryo should be included the law on IVF in order to protect human life:

“There is a human embryo from the fertilisation of a human egg cell by a human sperm cell which is capable of developing and shall further include each totipotent cell, removed from an embryo or otherwise produced, that is assumed to be able to divide and to develop into a human individual under the appropriate conditions”.

Such a definition would protect human life from the very beginning of its inception and should find itself into our statute books together with the humane regulation of IVF in Malta after twenty years of the unregulated practice.

Michael Asciak MD

BIRKIRKARA