Having one’s cake and eating one’s cake

When one considers the definition of marriage rationally, that is, using natural law or better described as the law of natural reason, one cannot fail to realize that marriage is entered into by two persons of opposite sex unequal in gender who commit to

ove here is of the agape self-sacrificial kind in which love and fidelity is naturally expressed sexually as a natural result of which children are born and these children are raised by the said parents. Rationally, there is a connection between love and fidelity on one side and procreation on the other which has existed since time immemorial and will exist for evermore.

When Malta’s Parliament voted to allow same sex couples before last summer, it made a conscious decision. It chose to change the definition of marriage from only one between unequal sexes to one that includes a relationship between equal sexes even when there was a prior civil union law which sufficiently catered for the latter scenario. In effect, it chose to redefine marriage to include the love between two persons of the same sex as same-sex couples cannot have children of their own. Willing or not, it meant that our Parliament created a rational rupture between the former concept in marriage of love fidelity on one side and the resulting procreation on the other.

Whether it realised or not, our Parliament now meant marriage to simply be a relationship between two persons. A great mistake then, but that ship has now sailed. There never existed a right to have children any way but now the relationship between love and having children has been legally completely separated so that the state in effect is now even less obliged to give credence to those who demand to have children at any cost.

When the IVF law was formulated way back by the PN government in 2012 by the then National Bioethics Committee, of which I was chairman, and the then Ministry of the Interior over a couple of legislatures, one of the important concepts was who to allow to legally have IVF access and also have it freely at the state hospital. After long deliberations, the Bioethics Committee decided to allow IVF access to all married couples and those heterosexual couples in a stable relationship even if not married. The consideration of course was that the children born out of IVF procedures were human beings and, being persons, they had certain rights which needed to be protected. One of these rights for which Malta has signed under the international UN Convention on the Rights of the Child is that the state has to protect the identity of the child. Among other definitions, identity also refers to genetic identity which is endowed genetically by the parents. Homosexual couples who bring children into this world cannot provide this fundamental right to a child in that it has a right to be raised by its own genetic parents and obtain a genetic and family identity among other types.

Another aspect the Bioethics Committee studied was the issue of stability. Since children are brought into the world by technology, the consenting authorities have a duty to see that the physical and social environment in which children are brought into the world is a stable environment. The Committee thought that children should not be brought into the world regularly by intent into an unstable environment and then abandoned to their fate. Therefore, not all heterosexual couples could be offered the technology but only those that offered a stable environment for their future children, such stability ascertained through the social security office. Here one also had to consider the philosophical distinction between something that is regular or necessary and something that is a contingency. Adopting children is a contingency but bringing children into the world through complex technological IVF procedures is a willed regularity and, ideally, the state has to be careful whom it helped and whom it provided access to this technology. The records relating to stability of homosexual couples were not very good than and they are not very good now. For these two reasons, heterosexual couples who lacked familial stability and homosexual couples were to be excluded from the procedure.

Our very progressive government has recently decided to who wish to avail themselves of this technology and their intentions to preserve the genetic rights of the children they wish to bring into the world through IVF technologies. What couples travel abroad for and what they do there privately is ultimately their own business. However, when the State gives financial aid paid from our taxes, it should be careful that the aid given is in line with our national laws and with ethical considerations. Leader of the Opposition Adrian Delia is right to question the method of dispensation of public funds on this issue.

When the Labour Party in Opposition way back in 2012 voted in favour of the IVF law, it had repeatedly and fervently wanted to bring in a clause on surrogacy but it finally relented due to the proximity of the general election. It is interesting now to question whether the new Legal Notice covers homosexual men couples who wish to carry out surrogate IVF and if the answer is no, one has to wonder why they have been excluded, or is the state still privy to apply ethical considerations in whom it helps with state aid.