An appraisal of embryo freezing in the light of Comparative Law and European Court of Human Rights Decisions

Abstract

Maltese law on medically assisted reproduction is regulated by the Embryo Protection Act of 2012. During the past few years, there have been constant debate on whether that same Embryo Protection Act still meets todays' realities. Whilst the Embryo Protection Act was still being drafted, there was already discussion on the procedure of cryopreservation of embryos and how to regulate such procedure in the Act itself. At that time, the topic of IVF alone was already creating controversy amongst the people, therefore, the legislator thought it was not the right time to permit for the procedure of cryopreservation of embryos. However, the legislator included an exception in which cryopreservation of embryos is permitted in Malta. Article 7 of the Embryo Protection Act provides that if there is a case where due to certified and grave force majeure which was not predictable at the moment of the fertilization, it is not possible to transfer the fertilized embryos into the womb, it is permitted to preserve those embryos until they are transferred. Today, it is clearly evident that the Government intends to introduce the legality of cryopreservation of embryos in Malta, this is because this was included in the electoral manifesto of the Labour Party of the General Election which was held last June. During the last legislature, the topic of cryopreservation of embryos was already being analysed by those in favour and those against such procedure. Therefore, this work will compare and contrast legislation of different countries on cryopreservation of embryos, analyse European Court of Human Rights cases and also analyse the situation in Malta regarding the introduction of Embryo Freezing. This will bring about the conclusion as to which countries' legislation should Malta follow when introducing this practice in our laws.