22.4.9 by Prof. Pierre Mallia
The Parliamentary Committee for Social Affairs has reviewed the position of the Church in an interesting and widely publicised intervention by Rev. Prof. Emanuel Agius. With regard to reproductive technologies it was pointed out that both documents of the Church referring to this subject, the older Donum Vitae (Gift of Life) of 1987, and the latest Dignitas Personae (The Dignity of all men), of 2008, have expressed concerns about some methods of reproductive technologies which involve the use of third parties (be they donors or the use of a laboratory) and, in particular, both express the protection of the family.
While in Malta things have started to change drastically, the family unit still plays a major role in our social fabric. When one works abroad, things can be quite different in health care, with families, or partnerships, as they are called, not formed in the traditional manner. Indeed it is perhaps one arm of liberty to challenge tradition. Local doctors have to face these situations and cannot be put in a position (or should not adopt a position) of paternalistically imposing on patients, or deciding who should take certain procedures and who should not.
The best way to illustrate the changes is by relating some case histories which perhaps have become common in our society with regard to the family. The names are fictitious, but not the cases themselves. They are however common enough to avoid infringement of privacy.
Sharon is living with a partner and is infertile. She suffers from endometriosis, which produces infertility, but which paradoxically cures the endometriosis during a period of eventual pregnancy. Due to her hormonal condition she is also obese, which was the reason given by her first husband for leaving her, although they had been together for several years before they married. The marriage lasted only a few months. She is now in a stable relationship with her partner and they have been living together for some years. It would seem that she would qualify for an annulment, which has not yet been forthcoming. The partner is not married. They wish to have children through Invitro Fertilisation, the only method which seems will work for them, following specialist advice.
Claire is a 32-year-old woman, separated, with five children, the eldest being 14 years of age. Her husband left her for another woman about two years ago and he does not give her alimony regularly, causing her several social problems. After a consultation discussing the difficulty she finds with raising these children she confirms that she would still like to form another stable relationship as she is still young. Her case for an annulment however seems bleak and although there is no doubt about her fertility, she said she would not mind having another child with a potential future husband as she feels that this is an expression of love. She casually mentions she is getting older and would even consider using the available technologies and medical help to succeed. Having a child with a partner seems very important.
Mario has known since childhood that he was gay. He has three sisters and has grown up in an environment in which a fetish to wear his sister’s clothes has developed into him having a feminine personality. His parents, after several months of anxiety when he ‘came out’ have accepted the situation and keep a portrait picture of him in the living area, in which he is dressed in girls’ clothes. Indeed no one would be able to tell him from the picture. During the week he dresses up normally but his mannerism is effeminate. He says that ‘sometimes’ he goes out dressed as a girl. After a consultation for a common cold he speaks to me about an article he has read where men can be considered to have children biologically. He then changes the subject to the potential of using a surrogate mother to have a child.
A couple are attending the reproductive clinic and come to the doctor to explain the options they were given. The husband was found to have a very low sperm count. The wife, whose personality seemed predominant on the husband, showed clearly she understood the process and stated that, “in the last resort they can refer us abroad to mix my husband’s sperm with that of a donor and inseminate me with the mixture”. The husband, at this, seemed to fold his shoulders and retire slightly into a metaphorical shell. When questioned he showed that it would only be a last resort. The doctor could tell he was uncomfortable with this.
Although these scenarios show specific issues related to the case, perhaps teasing out the generalities is important. In the first case we have a woman who has a case for an annulment, which is still forthcoming, but who is infertile and needs IVF. In the second case we have a woman who probably will not get an annulment but wishes, since she is young, to have another stable union and considers the use of technology to have children, even though she already has five. In the third, we have a scenario which has created much controversy: homosexual unions and whether they have a right to children, not to mention the issue of surrogacy. The family in the fourth case certainly need counselling to understand each other and shows how much it would be a violation to the family if counselling were not legislated for.
The questions are whether these cases challenge our traditional concept of the family, and deeper still whether this change in perception of families will cause a disruption of the social fabric. While the latter is quite unlikely in the short term, the former is quite possible. Moral documents such as Donum Vitae and Dignitas Personae ask governments to consider the concept of the family when legislating on biotechnology laws. If we look at Western societies it does not seem as yet that the family unit has been disrupted and it seems in human nature to succeed quite well, as related in Barack Obama’s pre-election semi-biography. Conversely there is no doubt that the family is certainly challenged and that new concepts of families – such as single parenthood, can only be encouraged, either out of altruism or out of wanting them to be there, by a certain form of affirmative action known as social support.
Yet our culture is quite different in the sense that one cannot really claim it to be multicultural. Should our society be forced to accept these changes? We do support families in distress out of charitable urge. If this were to change it would not be fair that those who chose not to marry and build a family would still expect social support. We give the free apartment to the single mother not because we want to encourage single mothers but because we want to give a helping hand. And yet is it having an adverse effect? Are people taking advantage of this situation?
Be this as it may the point here, ethically, is what should doctors, and politicians, do when faced with reproductive choices. Both find themselves in a difficult situation as the morality laid down by the Church, which indeed cannot be otherwise when considered academically, is difficult to lay down in medical and political practice. Should a doctor not refer, and be paternalistic by not referring patients for new technologies because they are not legally united? Do doctors get to choose?1 What about homosexual unions?
While the doctor can only work within the law, it is appreciated that what is immoral is not necessarily illegal. The doctor is expected to clearly lay out the options and either refer the couple for clinical ethics counselling, or to counsel them herself, even about the social and religious issues, as required by the biopsychosocial paradigm with which primary health care doctors work today. The couple is then able to make an ethical decision based on an informed process. Indeed it would be negligent on the part of health care professionals not to discuss seriously the social and cultural issues at hand.
The task for the politician is more complicated, and includes a clear legislation to cater for the last paragraph. But if presumably all politicians in our society want to abide by the second article of the constitution and legislate according to the Roman Catholic faith, it is doubtful that they would be able to legislate normatively – that is, the way society accepts as norm. This norm has of course its main players, the Catholic faith being on the front line, as evidenced by the introduction to this essay. It would be reasonable to expect politicians to introduce the law slowly and thus to favour the traditional family and allow the use of medical technology such as IVF for married couples, and perhaps the younger separated couples whose first marriage ended tragically and who aspire for at least a legal union. When it comes to more vivacious applications, parliament may certainly use restraint. Whether this infringes on human rights can be a legal conundrum; it certainly can however be based on upholding conservative values while accepting the recent changes of the times. One cannot see, and neither reasonably expect, the Maltese parliament to legislate in favour of either surrogate motherhood, or artificial insemination by donor sperm. The latter will certainly be seen by many as violating the integrity of the union and fidelity of the couple.
It seems that this legislation will make heroic history by attempting this first law in biotechnology applications. No reason to sit back; there are more to come: biobanks, genetic testing, end-of-life choices...
Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta.
1: Editorial, “Do I get to chose who should have a baby?”, Curbside Consultation column, The American Family Physician, March 1, 2003, Vol 6, No. 5, p. 1139-1141.