The best interests of the child

A quarter of a century ago, Malta ratified the Convention on the Rights of the Child. In view of this fact, it is worth reflecting on some of the stipulations of this Convention, especially given that certain quarters are calling for the elimination of the legal protection which Maltese law affords the human person before birth. The rights set forth in the Convention aim to serve the inherent dignity of the human being. It is precisely the respect for this dignity which inspires the Convention to clearly state in its Preamble that the child needs appropriate legal protection before, as well as after birth.

To date, Maltese law performs admirably in this regard. Amongst other things, the Embryo Protection Act prohibits the freezing of embryos, experimentation with embryos, surrogacy, cloning, as well as the creation of a human embryo for any purpose other than that of implanting it in a prospective mother. It is also worth noting that harsh penalties are in place for anyone who violates these provisions. Therefore, anyone who knows that the embryonic stage is one of the early stages of the formation of the baby inside the mother’s womb, would also know that the Embryo Protection Act goes a long way towards fulfilling the principal aim of the Convention, which is that of protecting human dignity in the weakest of its possessors.

The Embryo Protection Act and the Convention go hand in hand in many other respects. In another part of its Preamble, the Convention states that the child is best brought up in a family environment. Article 7 of the Convention buttresses this with its obligation on states to ensure that the child has a right to know his parents and be cared for by them. The Embryo Protection Act affirms this in its definition of a prospective parent under Article 2 as “either of two persons of the opposite sex who are united in marriage, or who have attained the age of majority and are in a stable relationship with each other.

In all legislation affecting children, it has always been held that the guiding principle should always be that of the best interests of the child. This principle ensures that children are always at the centre of any decision that may affect them. Therefore, one is compelled to ask whether the calls coming from some quarters also aim to safeguard the best interests of the child. To answer this, one must take stock of the immense pain which a couple suffer when they discover that one or both of them are infertile.

There is no question of balance between circumventing infertility and safeguarding the rights of the child. Although the wish to conceive and bring up children in a family environment is an extraordinarily noble wish, one must always be aware that it is the child who has the right to be cared for by parents, and not the prospective parents who have the right to a child.

Limiting the definition of prospective parents to one male and one female united in marriage or in a stable relationship is an act of respect for the dignity and well-being of the human person, since it is widely affirmed by experts and legislation alike that the family environment is the best environment for raising children. To alter the definition of prospective parents to allow same-sex couples would open the door to anonymous gamete donation and surrogacy.

The donation by women of eggs and by men of sperm would have a twofold effect. First of all, it reduces men and women to mere producers, akin to cows producing milk. Secondly, it would render the child, once born, unable to know the identity of one of his or her biological parents. This would have grave consequences for the child, who would essentially be deprived of a considerable part of his or her identity.

Surrogacy is the act of placing the fertilised egg, against payment, into another woman who would eventually give birth to the child and then hand it over to the so-called parents. This objectifies women and strips them of their dignity, as evidenced by many feminists who firmly oppose this practice. Surrogacy turns women into mere carriers and children into orphans.

It is precisely all of this which should be more than persuasive enough to dissuade our legislators from changing any part of the Embryo Protection Act. This law is a guarantor of human dignity and as such, should be left to carry out its task of safeguarding the dignity of the human embryo from conception.

Ramon Bonett Sladden

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