The legal framework governing the fate of frozen embryos : a case for legal uncertainty?

Abstract

The Embryo Protection Act, Chapter 524 of the Laws of Malta entered into force in January of 2013. The law as promulgated prohibits the routine freezing of embryos, making an exception for situations of force majeure, whereby embryos may be frozen until such time as they can be transferred to their genetic mother or, failing that, until they are given in adoption by the Embryo Protection Authority which assumes their curatorship whilst they are cryopreserved. The recommendation for adoption of embryos was put forward based on the understanding that such adoptions would be governed by adoption laws, amended as required to encompass the possibility of adoption at embryonic stage. This work analyses the content of the law, specifically the provisions dealing with frozen embryos, and makes recommendations based on the necessity for properly informed consent for individuals embarking on fertility treatment governed by this very particular provision at Maltese Law and the fact that despite the passage of four years there is no law in place to govern embryo adoptions. The uncertainty introduced by the failure to put legislation in place could be further compounded should routine freezing of embryos become allowed by law, and therefore this too is considered.