The Embryo Protection Bill currently before Parliament states that not more than two human eggs (or ova) should be fertilised in a glass dish in any one-treatment cycle. Since the success rate of fertilisation of good quality eggs, and I emphasise “good quality”, is about 75 per cent, it is reasonable to expect that usually one, possible two embryos develop which are capable of being transferred to the woman’s uterus or fallopian tube. The Bill also states that all the embryos produced in one treatment cycle have to be transferred to the woman concerned. This is to prevent any abuse of the embryo. The freezing of embryos is considered as a threat to human dignity and life, as 35 per cent of the embryos die in the process and often surplus embryos ensue.

This procedure expressed in the Bill is in line with professional accepted practice that only one or possibly two embryos should be transferred to any woman in one treatment cycle, in order to prevent the possibility of triplets which raise the perinatal mortality rate, so thus far so good. Note, however, that our Bill does not speak of embryos transferred but of eggs fertilised! There is a manifest reason for this, being that in countries where embryo freezing is allowed, the fertilisation procedure has already occurred and is out of the way. All that remains is to thaw the embryos (35 per cent mortality) and transfer one or two to the uterus!

In countries that do not allow embryo freezing such as Germany and Austria among others, the situation is not so straightforward as one has to allow for the element of doubt during the fertilisation process. In all these countries, including Italy, the phrase always used is “not more than three embryos to be fertilised”. Even in Malta there are cases where, exceptionally, the fertilisation of not more than three embryos can be envisioned. First, women or men with defective germ cells (sperm and ova) or germ cell functioning, have a lower fertilisation rate than the 75 per cent mentioned above. There is a risk here that fertilising only two ova would yield no embryos at all in repetitive cycles. This presents a problem. Therefore it makes sense in these cases to fertilise three ova to probably end up with one, although one can never absolutely guarantee that three embryos are ever very rarely produced. In this case it would make more sense to transfer all the embryos, as the normal pregnancy success rate per embryo is only 20 per cent and the relationship with two or three embryos is, of course, not linear.

There is a danger in this case: to reason that in this rare event, in order not to transfer all three embryos, it would be wiser to choose the lesser of two evils and therefore transfer two and freeze the other one as an emergency. The reality is that where human life and dignity is concerned, one cannot use the principle of the lesser of two evils, as all human life is considered equally precious and choosing between different lives would be an open door to eugenesis. There also remains the fact that whereas the exceptional cases in the Bill envision real contingencies for freezing embryos, such as the death or illness of the mother, this case does not in fact constitute a real emergency. Real emergencies have to be contingent to the normal procedure, while this case before us would be a necessary or regular part of the procedure. In philosophy there is a very important demarcation between events of a necessary and those of a contingent nature! Besides the spirit or epikeia of the law before us is evidently, as the title clearly states, versed towards the protection of human lives during all the procedures (not only IVF) mentioned in the Bill.

The second case where up to three embryos may need to be fertilised, is when one is treating older women (34+years) as female fertility rates plunge after this watershed year. In the UK, where embryo freezing is allowed, the protocol in these cases allows for up to three embryos to be transferred due to the difficult situation. Obviously fertilising two ova, as our Bill states currently, in these cases would only produce a pregnancy with difficulty.

For the Authority to work out a protocol to allow for these cases mentioned above (and there are, of course, others), the Bill has to be amended to state “not more than three ova to be fertilised”, as happens in other countries where embryo freezing is forbidden. This would not mean that normal practice would allow three ova to be fertilised, because two are generally enough. However, there are cases where three fertilisations are evidently necessary. I do not envisage that more than three would ever be necessary or acceptable ethically or medically.

The Bioethics Committee has in fact suggested the above amendment to the government, among others.