Disputes between prospective parents over cryopreserved embryos in Maltese law

Abstract

Cryopreserved embryos have long been the centre of legal debates and controversies, due to their complex nature and the issues they raise. One of the most commonly addressed debates in academic commentary centres around disputes between gamete donors concerning the future use of their supernumerary embryos. This dissertation focuses on how these disputes are resolved in accordance with Maltese legislation. It is contended that, in light of Article 18 (1) of the Embryo Protection Act, which inter alia states that ‘consent to cryo-preservation may only be withdrawn in writing by the prospective parent or parents before fertlisation’, as well as the fact that the discarding of embryos is unlawful under this same Act, there are two solutions if such disputes were to arise in Malta. The first is the adoption of embryos as established by the Embryo Protection Act. Analysis on this solution highlighted multiple points of contention within legislation, which led to the conclusion that the solution of adoption in Malta has its limitations if it is to be applied to cases where disputes may arise between prospective parents. The second would be for a court to override one of the prospective parent’s disapproval of the implantation by enforcing the other prospective parent’s wish to proceed with the implantation. Analysis on this solution inquired into the implications such a decision would have on the opposing prospective parent. This research demonstrated that legal parentage of the embryo is not determined under current Maltese legislation. Furthermore, it was found that Maltese law does not provide for the right to not be a legal parent. Such findings thus demonstrate that this decision would ultimately impose legal parentage on the prospective parent who wished to opt out of proceeding with the implantation of the embryos, subject to the embryo/s developing into a human being leading to the birth of a child/children.