In Malta, the termination of unviable pregnancies where a heartbeat is still detected is delayed until the woman’s life is at risk because abortion on the island is illegal under all circumstances.

This is where the principle of ‘double effect’ comes into play.

According to this principle, it is sometimes acceptable to cause harm as a side effect of bringing about a good result.

So a doctor would intervene with the sole intention of saving the mother’s life and the death of the unborn foetus or embryo is solely an undesired consequence of the intervention to save the mother.

But delaying things could sometimes be too late, as in the case of the late Izabela from Pszczyna, Poland and Ireland’s Savita Halappanavar. They both died after their request for an abortion was denied on legal grounds. Both women’s deaths brought about changes in their respective country’s legislation.

'Law is cruel'

Last week, an American woman had her request to terminate her unviable pregnancy turned down by Maltese health authorities despite her and her partner’s fears for her health. Her condition was described as stable at the time.

Andrea Prudente, who was 16 weeks pregnant, was airlifted to Spain to carry out the procedure last Thursday, a week after her waters broke prematurely and resulted in no amniotic fluid left inside her womb, giving the foetus no chance of survival.

We are knowingly causing a lot of trauma for women- Human rights lawyer Lara Dimitrijevic

Human rights lawyer Lara Dimitrijevic, who represented Prudente, told Times of Malta that having to resort to the principle of double effect to terminate an unviable pregnancy was “cruel”.

“Allowing a person to progress to imminent death – whether through sepsis or haemorrhage – before intervening is literally torture.

“How logical is it to first allow a woman to be on her deathbed to then take action and ‘save’ her life? The law does not seem to recognise the woman as a person, and by not taking action and amending legislation, we are knowingly causing a lot of trauma for women, who will have to deal with the consequences after the fact.”

What the law says

Article 241 of the criminal code stipulates that whoever causes a miscarriage - whether the woman consents or not - could be liable to imprisonment between 18 months and three years. 

Women who bring about their own miscarriage or consent to one, will face the same punishment. And physicians, surgeons, obstetricians or pharmacists who “knowingly prescribe or administer the means whereby the miscarriage is procured” could be imprisoned for 18 months to four years and also be banned from practising their profession. 

For Dimitrijevic, doctors’ hands are tied and the only solution is to decriminalise abortion be removing it from the criminal code and regulating it in the health act.

However, human rights judge Giovanni Bonello says that article 241 dealing with miscarriage cannot be taken in isolation – it must be read and applied in conjunction with other articles of the code, such as article 223.

Theraupeutic abortions 

In a series of letters published recently in Times of Malta – a thread that involved former prime minister Alfred Sant, Christopher Barbara (one of the founders of Doctors’ for Choice) and gynaecologist Isabel Stabile – Bonello asserts that the present blanket ban on all abortions, seemingly mandated by the criminal code, does not apply to therapeutic abortions.

Such abortions are the terminations of pregnancy carried out to save the life of the mother or protect her from grievous threats to her health. For at least the last 500 years, he argues, there is not one recorded case of anyone ever being prosecuted in Malta for having taken part in therapeutic abortion. 

He notes that when an ongoing pregnancy threatens the life of the mother, or puts her health in manifest danger, the principles of lawful self-defence apply.

“If the embryo or the foetus is threatening the life or health of the mother, then abortion is equivalent to self-defence, enshrined in the criminal code. This is in accordance with the doctrine of double effect, expressed in philosophy of law or, more commonly, in application of the principles of self-defence.”

No prosecutions

“That explains why never, in memory, have terminations of pregnancy, which are performed openly and routinely in public hospitals and clinics, been criminally prosecuted, if carried out for ‘self-defence’ therapeutic reasons,” he explains.

Among his arguments in rebuttal, Sant says: “I can only suspect that a main reason why no prosecutions over therapeutic abortions have been carried out in the past and up to now is the Maltese common sense one, ‘to let sleeping dogs lie’, rather than because the law states this.”

Stabile, meanwhile, describes as “impractical” Bonello’s claim that in situations when the woman’s life is in danger, such as sepsis, doctors simply apply this principle and end the pregnancy to save the life of the mother.

The principle is that therapeutic abortion is allowable if harm to the foetus is foreseen but indirect and unintended. The problem, she says, is that because it is often unclear what is considered indirect, the principle cannot easily be used in practice.