Communicated on 7 October 2020 Published on 26 October 2020

FIRST SECTION

Application no. 8709/20 Gilbert LIA and Natasha LIA against Malta lodged on 5 February 2020

STATEMENT OF FACTS

The applicants, Mr Gilbert Lia and Ms Natasha Lia, are Maltese nationals, who were born in 1980 and 1971 respectively and live in Attard. They are represented before the Court by Dr H. Mula , a lawyer practising in Pieta.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants were married on 20 May 2012. After unsuccessful attempts at having children, they were given medical advice that the only remedy to have children was by means of assisted procreation In Vitro Fertilisation (“IVF”);

On 27 September 2014 the second applicant, aged forty-two years, underwent Intracytoplasmic Sperm Injection (“ICSI”) at Mater Dei Hospital, the Maltese public hospital. The treatment is provided by the Government of Malta free of charge to subjects satisfying the Maltese Embryo Protection Authority ’ s (hereinafter referred to as “The Authority”) protocol (hereinafter “the protocol”) established by Chapter 524 of the Laws of Malta, namely the Embryo Protection Act (see Relevant domestic law below).

The treatment was not successful and consequently the applicants requested another cycle of treatment on 31 August 2015. After a thorough medical assessment of the potential mother, Dr J.M., on behalf of the applicants, requested the treatment to be carried out in November 2015 when the second applicant would have been forty-three years of age.

On 14 September 2015 the Authority refused the request stating inter alia that: “With reference to the attached scan and the below communication, EPA [the Authority] discussed your case as presented. However, EPA is still bound by the present law as it is today, whilst [it] also cannot deviate further from the protocol terms as stated in Chapter 6 of the said protocol. In respect of this, EPA unanimously decided that the request cannot be approved.”

At the time of the second applicant ’ s request for a second cycle, the age bracket endorsed by the Parliament of Malta on an annual basis was that between twenty-five and forty-two years, a requisite which in the applicants ’ opinion was in breach of their right to family life and the right not to be discriminated against. They also considered that they had fulfilled the other two criteria required, namely, being married and that according to medical advice they had reasonable prospects of success.

Following the refusal by the Authority, the applicants communicated on various occasions with the Authority in order to have an explanation which was never tendered.

Consequently, on 4 April 2016 the applicants filed a judicial letter in the Civil Court (First Hall) in its constitutional competence addressed to the Authority pointing out the breach of the fundamental right to family life. The Authority replied that it was guided by the protocol as established by law and approved by medical experts in the field.

(a) First-instance

On 9 March 2017 the applicants instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence (hereinafter “the court”). They considered, firstly, that the concession, granted by Section 6 of Chapter 524 of the Laws of Malta, to have a protocol outlining guidelines in the sector had to be in line with the law and fundamental human rights and that secondly, the failure to fulfil these standards meant that the Government had to intervene to rectify such a breach within the protocol. They noted that the Government had been informed every year about the applicable age bracket and that, this notwithstanding, the Government failed to stop what the applicants believed to be discriminatory treatment arising from the protocol adopted by the Authority. They thus considered that they had suffered a breach of their right to private and family life and their right not to be discriminated against. They relied on Articles 8 and 14 of the Convention, and the Maltese Constitution. They requested, inter alia , the court to declare the refusal decision null, to order the medical examination of the second applicant to assert whether there existed any supplementary risks - in the absence of which - that she be authorized to undergo treatment, and to liquidate damage.

During these proceedings the following testimony was produced:

- The second applicant stated that the couple had tried to make the requested cycle in Spain, which would have been approved, but it was too expensive and they could not afford it. She insisted that if the couple were on a better financial footing they could have become parents, but as a result of their financial situation (which did not allow them to pursue treatment abroad) and the age-limit set in Malta she had been discriminated against.

- The first applicant confirmed the above, noting that in the first month they had already disbursed five thousand euro and could not afford it. He insisted that the medical assessment of his wife should have determined whether she was eligible or not, and not her age. He considered that they had been discriminated against because no other law set an age-limit for people to have children, and because they were not in a financial position to travel abroad to obtain treatment.

- Dr. J.M. testified that, when examined, the second applicant was in good health conditions for a pregnancy, having a good quality reserve of ova, and that she was still able to bear children. He explained that although no specific reason for the refusal was given by the Authority, it was clear that the reason was because of her age since this was the only requisite which was not satisfied. He emphasized that the second applicant had been perfectly heathy for another cycle of IVF but was obstructed by what was spelled out in the protocol.

- S.A., in representation of the Authority, confirmed that: every application of persons over the age of forty-two (four applications in all) had always been refused; the first cycle was given to the applicant by way of priority since she was almost forty-three years of age; she was also allowed to fertilize three ova as opposed to two; the Authority adhered strictly with the protocol with regards to the age of the applicants; in this case the second cycle could not be acceded to solely because the second applicant was above the maximum age, this was irrespective of the fact that the protocol indicated the age bracket as being “desirable”. She further explained that the protocol was drafted after lengthy discussions by various experts and had been presented in Parliament in 2013.

- Profs. M.B. (who had been consulted on the drafting of the law) considered that the crux of the case was one of ageism. Although he had various issues with the law - in so far as it had not allowed sperm donation or surrogacy - he had not been very critical of the age-limit set since the chances were that the ova gathered from a woman aged forty ‑ three would be of a of lesser quality, resulting in a poor success rate (4 ‑ 5%). Such harvesting could have allowed an element of exploitation which the law sought to avoid so to protect women from such exploitation and the negative psychological impact that came with it. He conceded however that a woman of forty-three years of age, who had a good reserve of ova, should have a right to decide, following consultation with her doctor, on whether to proceed or not with the procedure – but only in the absence of exploitation.

- Dr. MS and Dr. MF, both medical consultants specializing in Obstetrics and Gynaecology, stated that such treatment can have negative effects on a woman, such as hyper stimulation syndrome, which could cause various serious complications; since the law did not provide for donor gametes, and thus only the woman ’ s ova could be used, an age limit had to be set; the maximum age of forty-two years indicated in the protocol was dictated by the very low chance of success (less than 10%) when performed on women having that age. They further explained that in certain countries the maximum age [for a woman to undergo treatment] could extend to fifty years or more because of the opportunity of donor gametes. They also mentioned a 73% chance of abnormal birth when a woman was older than forty and used her own ova; as well as the likelihood of miscarriages and the need for stimulation which carried a high risk.

- Dr. PS specialized in Paediatrics who had also been consulted in the drafting of the protocol averred that women in advanced age during pregnancy can suffer complications for them and the child. He referred to hyper stimulation syndrome and the life threatening consequences it could have. He noted that the protocol had been drafted based on the English model and explained that the cut-off date of forty-two years was chosen since, after such age, the risks outweighed the benefits. He mentioned that at that age the risks for both the mother and the child existed both in assisted as well as natural procreation. As to the word “desirable” used in the protocol, he explained that it aspired to the optimum but it did not mean that one could not go beyond. The protocol provided guidelines and was not to be interpreted restrictively.

By a judgment of 28 September 2018, the court rejected the defendants ’ plea of non-exhaustion of ordinary remedies and on the merits found against the applicants.

It considered that the crux of the issue was the interpretation of the protocol. It transpired, from the testimony brought forward, that despite the word “desirable” the Authority interpreted the age-limit as a mandatory condition. In the court ’ s view the protocol had been adopted after serious consideration and discussion with relevant stakeholders, including experts. The guidelines were set out so that IVF would be of least peril to the mother and the embryo, and so that it would be successful. The majority of the experts agreed about the problems involved in relation to women aged over forty-two, both in respect to natural procreation and even more in respect of medically assisted procreation (where a woman was induced to produce more than one ovum in each cycle). The risks involved were not negligible. One also could not ignore that the embryo ’ s health depended on that of the mother, and that an abnormal foetus could also be a result.

The court agreed that the reason why an age limit had to be fixed was that the law, at the time, had not allowed the use of donor gametes. This was no longer the case. However, the court considered that the State had the right to regulate the procedures which ( i ) it was not obliged to provide and ( ii) it was providing free of charge. It was the State ’ s duty to protect state coffers and it was not in doubt that the expenses related to such treatments were high. Thus, bearing in mind the statistics and the fact that the State was offering such a service, as well as the risks involved after a certain age and the negative impact both on the success of the procedure and the embryo, later foetus or child, it considered that by means of the protocol, the State had provided a fair and proportionate balance between the applicants ’ right to respect for private and family life and that of society in general, also considering that any future health problems of the mother and child would also be covered by state coffers. However, it sympathised with the applicants ’ argument concerning the word “desirable” which could lead to a certain uncertainty and considered that any maximum age should be explicitly provided for, save determined exceptions.

In addition, it found that the protocol did not give rise to discriminatory treatment on the basis of age. All the persons of the same age had been treated the same, and people below the relevant age group had also been excluded from the procedure. Neither had there been any discriminatory treatment vis ‑ a-vis other individuals of the same age who could have children without assistance (and thus were not in an analogous position to the applicants), nor wealthier individuals who could travel abroad to obtain such treatment (who could also face such impediments). Thus, neither the promulgation of the protocol nor its interpretation could give rise to discrimination.

The applicants were ordered to pay court expenses amounting to the 2,149 Euros (EUR).

(b) Appeal

The applicants appealed. They insisted, in particular, that the term “desirable” in the protocol meant that the maximum age-limit had not been mandatory as applied by the Authority.

By a judgment of 27 September 2019 the Constitutional Court confirmed the first-instance decision.

The Constitutional Court found that, while it was true that the protocol did not make the age bracket mandatory, such limitation was nevertheless justified and the Authority was entitled to apply such a limitation in all the cases before it. The State had a duty to protect public health and limit risks to individuals so that a balance could be reached between the interest of private citizens to procreate and the State ’ s duty to ensure a healthy society, as well as avoiding the exploitation of women. This was even more so given that health care was free of charge in Malta.

While the Authority had the discretion not to apply the age-bracket, it also had the discretion to apply it based on medical considerations, as also shown by the expert opinions. Even the applicant ’ s doctor testified that the offspring had more chances of complications ( xi ħaġa ), but that it was then based on the woman ’ s decision once situation would have been explained to her and her having given her informed consent. However, according to the Constitutional Court, this could not be left solely to the discretion of the parents. The Authority ’ s decision and that of the first-court were supported by the experts who testified and thus the appeal could not be upheld.

Costs were to be borne by the applicants.

IVF became available in Malta, in a restricted measure, as of 2012 by means of the Embryo Protection Act, Chapter 524 of the Laws of Malta. At the time the law only allowed for homologous techniques (i.e. having recourse to the gametes of the couple) as opposed to heterologous techniques (i.e. having recourse to gametes external to the couple) which were not provided for.

Section 2 of Chapter 524 of the Laws of Malta at the relevant time provided a requisite that the applicant had to be a prospective parent. For the applicants to qualify as prospective parents they had to be either legally married, or obtained the age of majority and having a stable relationship.

Section 5 of Chapter 524 of the Laws of Malta provided that there should be no prohibition to prospective parents, but to the contrary, they should be facilitated to have access to IVF procedures. This section only gave a limitation stressing that such procedures may only be approved when there is a reasonable chance of success and procedures do not entail any known undue risk to the health of the woman and child.

Section 6 of Chapter 524 of the Laws of Malta established that a protocol should be drawn up in writing, by the Authority, after consulting the associations which, according to law, represent the medical practitioners who exercise their profession in the fields of obstetrics and paediatrics. I t further provided that such a protocol shall include, without prejudice to other criteria, clear criteria regarding the age of the woman who will be participating in such a procedure and after how many cycles in accordance with paragraph (b) may the medical practitioner decide to fertilize up to a maximum of three egg cells.

The protocol at the relevant time provided:

“For the purpose of this Protocol, the EPA [Embryo Protection Authority] feels that it is desirable that the woman, who is entitled to treatment should be between the age of 25 and 42 years .. . ”

Subsequently, in 2018 it was amended to reflect changes in the Act which came into force on 1 October 2018 and introduced heterologous techniques. The amended protocol included the following:

“... 6.3 it further establishes that the woman whose own oocytes have been retrieved after the woman reached the age of 36 years will only be allowed to undergo treatment up to the maximum age of 42 years (...).

6.4 It further establishes that the woman referred in Guidance Note 6.3 above, if after undergoing treatment up to the maximum age of 42 years will still have cryopreserved embryos, then the maximum age of that woman will be extended to 48 years.

6.5 It further establishes that the woman who is entitled to treatment should be between the age of 18 and 48 years if using donated oocytes.

6.6 Prospective parent / parents referred in Guidance Notes 6.2 to 6.5 above are referred to treatment if they have one of the following:

(a) identified causes of infertility amenable to treatment by IVF e.g. bilateral tubal occlusion, azoospermia, and

(b) unexplained infertility for two years (this includes mild endometriosis or mild male factor infertility)

6.7 The maximum permissible age of the prospective parent for implantation of embryos shall be 48 years in all cases ...”

COMPLAINTS

The applicants complain under Article 8 of the Convention that by refusing their request for the second IVF cycle, the Authority did not provide a fair balance between the competing public and private interests. They noted that given the word “desirable” in the protocol in relation to the age bracket, the authorities should have assessed the second applicant on her situation and not in the abstract, solely on her age. They also considered that the age-limit being set at forty-two was not a measure necessary in a democratic society, as it was not based on any risk but solely on prospects of success. In their view this constituted a further breach of Article 8 taken alone and in conjunction with Article 14 as it consisted of discrimination based on age and no other factor.

QUESTIONS TO THE PARTIES

1. Was the interference in the present case in accordance with the law and necessary in terms of Article 8 § 2?

2. Has the second applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention? If so, is the first applicant an indirect victim of that discrimination?