Over two decades ago, Malta signed and ratified the UN Convention on the Rights of the Child. This lays down that the family, with particular reference to children, “should be afforded the necessary protection and assistance”.
The Convention also refers to the antecedent declarations of 1924 and 1959, which recall the need to extend particular care to the child. Crucially, the Convention states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”. This shows that the Convention’s recognition of the fact that the rights of the child begin not at birth, but at conception. It cannot be clearer.
The Convention demands that the safeguarding of the best interests of the child is given the highest priority.
In 2003, Malta enacted the Commissioner for Children Act, and the Commissioner for Children became the local guardian of the Convention. The law lists the functions of the commissioner, including the duty to promote and advocate for the rights and interests of children, as well as the protection of children from physical and mental harm, including exploitation.
The Commissioner for Children, for reasons incomprehensible and contrary to good sense, has chosen to support the Bill proposing to introduce embryo freezing, gamete donation and surrogacy. The statement issued by the commissioner’s office erroneously states that, at 16 years of age, minors born from donation will be allowed to know the identity of the donor, hence the identity of one of their biological parents.
This is unquestionably wrong. Article 7 of the Bill (which amends Article 9 of the Embryo Protection Act) states very plainly that only the donor’s anonymous medical records shall be accessible to the child upon the latter reaching 16.
The commissioner’s statement is further misinformed of the proposals she is bound to monitor in view of the Bill’s clarity on the severing of all bonds of filiation between donor and offspring.
Clearly, the commissioner has either not read the Bill or has not read it properly.
The commissioner, whose duty it is to be the guardian of children’s rights in Malta, has come out in support of a Bill that turns children into commodities and which should, to any sane public servant, be anathema to children’s rights.
Now, the commissioner is surely placed in the uncomfortable position of explaining to an awaiting public how she has managed to conclude that the freezing of embryos is conducive to fulfilling her mission to promote children’s rights and ensure all children are treated with dignity, respect and fairness. As those who have read the Bill know, it is neither dignified nor respectful nor fair to implant the best embryos in the mother and leave their siblings, deemed of lesser quality, in a freezer.
The Commissioner for Children Act empowers the commissioner to carry out investigations connected with her duties either following an individual’s complaint or from her own motion. However, it is pertinent to ask who has the power to investigate how and why the Commissioner for Children has chosen to endorse a Bill that clearly does not have the protection of children as its primary object.
The law also empowers the commissioner to issue a child impact statement relating to any decision or proposal on any policy that affects children. In a situation in which the commissioner has come out in favour of a Bill that harms children, to whom does the sad duty to issue a child impact statement fall?
What is the impact on children when the Commissioner for Children decides not to be on the side of children?
The Malta Paediatric Association and the Maltese Association of Social Workers have both encouraged the government to protect the embryo and to focus on the best interests of the child.
However, this advice from competent and dedicated professionals seems not to have been heeded by the commissioner.
I distinctly remember previous commissioners for children organising short summer courses to educate children on their rights under the Convention. In fact, I myself attended such a course in 2004.
All participants agreed that the first among rights had to be the right to life, without which all rights are useless.
I am genuinely curious what children will be taught at the next such course. When a brave young child asks the commissioner why she has come out in favour of freezing the youngest of children, how will the commissioner respond?
Personally, I hope the commissioner comes to her senses long before she has to disappoint a hopeful child.
Ramon Bonett Sladden is a lawyer.