Saturday, 23 October 2010

MGRM: Assisted Reproduction

21.10.10; Gaby Calleja

It is the position of MGRM, borne out by human rights experts, that: "(e)veryone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members (Yogyakarta Principles, 24) ." This implies that States should: "Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity."

Following the publication of the Select Committee's report on Assisted Reproduction the Malta Gay Rights Movement is raising the following considerations:

- while the decision to provide access to assisted reproduction treatments to cohabiting couples in stable relationships is most welcome, the fact that this has been limited to heterosexual couples is discriminatory and goes against the principles of equal treatment as established by the European Court of Human Rights, which in the case of Schalk and Kopf v. Austria held that same sex couples living in a stable relationship constitute family life and in a number of other cases held that states acted in violation of article 14 (prohibition of discrimination) when they treated cohabiting same-sex couples differently from cohabiting opposite-sex couples (P.B. and J.S. v. Austria; Karner v. Austria; & Kozak v. Poland);

- the decision to restrict assisted reproduction services to couples is inconsistent with the government's current legislation and policy with respect to fostering and adoption both of which allow individuals to apply as single parents;

- banning of donation of gametes by third parties directly effects the possibility of single women as well as same-sex couples of becoming parents and is therefore deplored;

- the MGRM supports the select committee's recommendation to allow the freezing of embryos but disagrees with any pressure on the parents to make use of all the embryos frozen. Any such obligation would be an infringement of the CEDAW convention which establishes "the right for women to decide freely and responsibly on the number and spacing of their children…" (Article 16.e).

- while the title of the document refers to assisted reproduction the proposals focus almost entirely on IVF. It is unclear how and to what extent the proposals refer to and will have an effect on such treatment as artificial insemination;

- the suggestion that individuals who undertake fertility treatment abroad could be obliged by law to register the donation of sperm in Malta raises serious human rights concerns particularly with respect to the right to private and family life (Article 8 ECHR).

The MGRM therefore urges government to ensure that any legislation enacted is inclusive and respectful of international human rights principles as enshrined in various treaties and conventions and to provide equal treatment to all its citizens, particularly in access to health services.

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