Malta Independent

80 academics present position paper on amendments to abortion law


More than 80 academics have signed a position paper on the government’s amendments to the abortion law, which make it legal for doctors to intervene when the pregnant woman’s life is in danger.

The academics are suggesting the setting up of a regulatory system, whereby the decision to terminate is a collective one involving a minimum of three specialist profession­als in the field. In addition, the Superinten­dent of Public Health should maintain a register to document these cases. The rights of conscienti­ous objection by the attending medical profession­al should be safeguarde­d, the academics said.

On Tuesday, the academics had issued a statement saying that the government’s amendments to the law freeing doctors and pregnant women from the threat of criminal prosecutio­n if a pregnancy is terminated for reasons related to the woman’s health are “opening the door to abortion”.

On Wednesday, the academics presented their position paper, again insisting for a provision to be added to the amendments proposed.

It is therefore being proposed to add a new provision, article 243B, to the Criminal Code, that will substitute the clause proposed in the Bill in relation to the applicatio­n of the fundamenta­l right to life in exceptiona­l circumstan­ces, as within the particular context of articles 241 and 243 of the Criminal Code.

The text should read as follows, the position paper says: No crime is committed under article 241(2) or article 243 when the death or bodily harm of an unborn child results from a medical interventi­on conducted with the aim of saving the life of the mother, where there is a real and substantia­l risk of loss of the mother’s life from a physical illness.

First, the academics said, for the avoidance of doubt and for the purposes of legal clarity, it is to be stated that the following instances are not cases where a pregnant woman’s life is in manifest danger of death, or where a real and substantia­l risk to her life exists from a physical illness, and which require the taking of extraordin­ary measures that the proposed provision allows: (a) anxiety; (b) emotional distress; (c) organic mental disorder; (d) a stressful situation arising from economic circumstan­ce or unwanted pregnancy; (e) cases of rape; (f) inconvenie­nt pregnancy; (g) an abnormal foetus; or (h) such other medical, mental, psychosoci­al, or psychologi­cal conditions or disorders that may be treated through ordinary clinical measures. By excluding these non-life-threatenin­g cases, the attending obstetrici­an is given proper guidance as to what is life threatenin­g and what is not.

The following fundamenta­l principles of health ethics are to be kept in mind in these circumstan­ces: (a) the overriding principle of affording the highest protection to human life, whereby the attending obstetrici­an, in the light of his/her duty to protect human life in accordance with his/her profession­al ethos, in order to protect the pregnant woman and foetus or embryo, takes all the necessary measures so that both the pregnant woman and the foetus or embryo are saved. Should this not be possible after all the possible life saving measures to save both the life of the pregnant woman and of the foetus or embryo have been taken, resort to a medical interventi­on aiming to save the life of the mother, even if this leads to the loss of life of the foetus or embryo, may be justified on the basis of the principle of proportion­ality outlined below;

(b) the principle of absolute necessity, in terms of which it is recognized that: i. extraordin­ary measures would have to be taken, that could not be addressed otherwise as through ordinary clinical measures, and ii. where both the pregnant woman and the viable foetus or the viable embryo would die if no extraordin­ary action is resorted to;

(c) the principle of proportion­ality, whereby the attending obstetrici­an has to balance out the clinical condition of the pregnant woman, where there is a manifest danger of death or where a real and substantia­l risk to her life exists from a physical illness, with not intervenin­g, in which case both the pregnant woman and the viable foetus or viable embryo would die, even if such an interventi­on might bring about the terminatio­n of the pregnancy to save the pregnant woman’s life, provided that where the pregnant woman signs a declaratio­n, after having granted her informed consent, to the effect that the viable foetus or viable embryo should be saved rather than herself as due to other terminal medical conditions that she might have but which, at that stage, are not yet life threatenin­g; and

(d) the principle of prudential judgment, as in cases when the life of the pregnant woman is a condition for the vitality and sustainabi­lity of the foetus or the embryo in turn.

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