An analysis of the Embryo Protection Act in terms of same-sex couples

Abstract

With the enactment of the ‘mutatis mutandis’ provision in the Civil Union’s Act of 2014 and the amendment of Article 45 of the Constitution, one would conclude that all other laws are consistent with equality for civil unions and marriages. However, in reality, the definition given for ‘prospective parents’ in the Embryo Protection Act is in fact in violation of the Constitution. The use of gender pronouns of such provisions discriminate against people of various sexualities, including homosexuals. One cannot deny that there has been various improvements in the civil liberties ambit within the Maltese Islands, yet certain prejudices still exist in various aspects of the law. In this study, an analysis of both these laws and the discrimination that might arise is conducted. The historical facts leading to their enactments identify why certain approaches were taken. Besides this, this study also delves into the issue of gamete donation and surrogacy, two criminalised areas within Maltese law which indirectly leave an impact on certain minorities including male same sex couples are not being given the facility to reproduce. The positions of 3 main parities (Gabi Calleja from MGRM, Suzanne Vella from Save the Embryo Protection Act and Onor. Godfrey Farrugia) also enrich the study and identify different points of view that exist within society. A comparison with other European States was conducted in order to establish Malta’s ranking when it comes to these Artificial Reproductive Technologies. In the conclusion, the author also gives suggestions to legislators on what is required for the Embryo Protection Act to be in conformity with the Constitution and other laws in order to minimise discrimination that exists with regards to ART in terms of same-sex couples.