Two couples may stand to lose their fertilised embryos due to unanticipated emergence of a cancer in the mothers, said Dr Mark Sant, gynaecologist and infertility specialist.

These mothers have both been diagnosed with types of uterine cancer. Sant and his team are working to delay a hysterectomy long enough so that the embryos could be implanted in the uterus, and the mothers to carry the pregnancy to term.

He mentioned that in such instances, undergoing a curative hysterectomy would render hopeful mothers incapable of bearing their biological embryos. Consequently, the embryos would be automatically designated for adoption; but, there is as yet no legislation on how embryos can be adopted. This results in the couples losing the embryos, which are then frozen under government custody, for an undetermined period of time.

The two couples attempting IVF currently risk losing their fertilised embryos to government custody due to a waiver they must sign before starting the IVF process, Dr Sant said. The waiver states that should the embryos be unwanted or should the biological mother be unable to carry them, including for health reasons, the embryos must be handed over to the Embryo Protection Authority (EPA) and frozen to be put up for adoption later on, he said. Currently, however, no legal framework for embryo adoption exists, said Dr Sant.

He stated that at present, the EPA holds frozen embryos from IVF couples and serves as their custodian. However, nothing can be done with them at the moment. He said that it is unclear whether the embryos were given up or taken by force and indicated that the EPA would have this information.

Questions sent to the EPA remained unanswered.

Dr Sant suggested that a potential improvement to the current standstill in embryo adoption could be surrogacy. Through this method, the embryo is carried by another woman but eventually reunited with its biological parents as their child. Despite this, surrogacy remains illegal, he noted.

A legal loophole does exist by which a couple may avoid this waiver by going abroad. When questioned about the loophole, he said that this goes against his basic principle that all couples, no matter their means, should have the equal opportunity to conceive.

For Dr Sant, this waiver undermines the idea of free IVF in Malta with some couples refusing to run the risk of losing their embryos on being confronted with the waiver.

Dr Sant said that the process of IVF necessarily involves the fertilisation of multiple embryos to increase the inherently low chances of success. He said that currently, at age 40, only one fourth of the embryos would be genetically normal and capable of implantation via IVF.

This is why surplus embryos may be created despite the odds against it, he said. Even so, there are only so many that can be implanted in the mother and the remainder should still remain the couple’s biological “property”, he said.

To prevent any surplus embryos and avoid the risk of them being taken away, the number of eggs utilised in IVF would be minimised to such an extent that the likelihood of fertilization would be deemed “ridiculously” low.

When asked about the places where this waiver needs to be signed, Dr Sant said it happens only in Maltese clinics and nowhere else in the world. He said that the waiver legislation came into action immediately with the introduction of IVF in Malta.

There is no bioethical reasoning behind this legislation, Dr Sant said; rather, it was brought in to satisfy pro-life voters, who objected to the introduction of IVF. He said it was a purely political motive.

Dr Sant said this waiver is well-known among medical professionals but many kept their silence for fear of being “lumped” with the pro-abortion lobby due to the potential loss of embryos.

One must keep in mind that “IVF is the last resort”, he emphasised and that couples face enough psychological distress and stigma without being, very ironically, described as being in favour of abortion despite their trying so hard to conceive.

The trauma to the two parents at the moment is totally barbaric, added Dr Sant. He said that not only do they have to deal with the shock of a life-threatening disease but also with the trauma of their biological offspring being forcibly taken away and in future given to total strangers without having a say in it.

Dr Sant said the only way forward is for someone in politics to have the courage to challenge this “ridiculous” legislation that could potentially determine the fate of embryos even before their creation.