Human life, at all stages of its natural development, is sacred and, accordingly, must be protected by law. The right to life is, in fact, the most fundamental of all human rights.
Since human life is scientifically acknowledged to commence at fertilisation, that sanctity and ensuing legal protection must originate as from that very unique moment in time.
No distinction can therefore be made between the various stages of in utero development, as human life is involved in all these phases.
Some might argue that the fundamental right to life, just like civil rights, may only be enjoyed by a person and that a human zygote, embryo or foetus, not having yet been viably born, is not yet a person and, therefore, denied the enjoyment of such right. That is, however, not only a dangerous but also a false argument, denounced by science.
The fundamental right to life finds its basis in natural law, encompassing values intrinsic to human nature and not in the laws of man, which may or may not give recognition to the same or seek to limit it in some way such as to permit abortion or capital punishment.
The right to life is the quintessential human right, founded on absolute truth and unchanging moral laws applicable to the homo sapiens species as a moral animal endowed with the faculty of reason and, as such, must apply from the very commencement of human life.
In light of these considerations, I therefore cannot remain silent when faced with Bill No. 28 proposing to introduce an amendment to the provisions of Malta’s Criminal Code dealing with abortion.
The argument is not a religious one, as pro-choicers might seek to insinuate in a bid to discredit pro-lifers, but one which centres around scientific truth and the resulting value which one gives to the wonderful mystery of life, in all its manifestations.
The fact that the Catholic faith, which always defends the weak and gives unconditional value to life, happens to be on the right side of the argument, condemning abortion as a heinous evil, is therefore irrelevant in this context. There are just as many atheist and agnostics who uphold and champion life in exactly the same way.
Nor is the argument one of freedom of choice because the exercise of one’s freedoms is always curtailed by the respect due to the rights of others; in this case, the absolute right to life of the unborn child.
Bill No. 28, introduced by the minister of health on behalf of the minister of justice on November 21, 2022 seeks to bring in a new article into the Criminal Code, namely article 243B, in the nature of “exceptions” to certain articles of the Criminal Code which render abortion illegal in Malta.
Essentially, the legislator is seeking to exonerate from criminal liability and its consequent criminal sanction, within the parameters of that proposed exception, any medical practitioner who may terminate a pregnancy as a result of a medical intervention aimed at protecting the health of a pregnant woman suffering from a medical complication that may put her life at risk or her health in grave jeopardy; as well as any woman who may have consented to that procedure.
It has since been reported that a further amendment, to be introduced at committee stage, will seek to provide that a viable foetus, that is to say a foetus which, if given birth to at that particular stage of development, could live independently, should be protected, be birthed and allowed to live.
To the extent that the proposed amendment to the Criminal Code will make it clear that, in the event of a medical complication arising involving a pregnant woman, which puts (as I would suggest and not which ‘may’ put, as is being proposed) her life at risk, it would be lawful, with the consent of the woman concerned, to proceed to terminate that pregnancy through a medical intervention aimed at protecting the life of that pregnant woman, always provided that every effort should, at the same time, be made to protect, birth and save the life of the foetus, then that would appear to reflect current ethical medical practice and would be acceptable.
The word ‘health’ has a very broad meaning- Kevin Dingli
The main problem with the government’s proposal, however, arises as a result of the fact that the proposed amendment additionally seeks to extend the exception to a scenario in which a pregnancy comes to be terminated as a result of a medical intervention aimed at protecting the health of a pregnant woman suffering from a medical complication which may put her health in grave jeopardy.
This is objectionable not only because the word “health” has a very broad meaning, which also encompasses mental health, but also because, in this latter scenario, the life of the pregnant woman would clearly not be at risk and, as various eminent medical practitioners have opined, health issues can be treated, and the treatment of health issues never necessitates an abortion.
The termination of a pregnancy in such a situation would, therefore, be tantamount to abortion pure and simple as there can be no other explanation for this unwarranted provision to be surreptitiously inscribed in our statute book.
The government’s proposal to introduce some mitigating effects in this situation by equally providing that a viable foetus should, even in this scenario, be protected, birthed and allowed to live, does not do much to alter the state of play, namely legal abortion, that will come about in consequence of this particular provision of the bill.
Once can, in fact, immediately see that, at best, this proposed tweaking will only serve to exclude abortions in cases of pregnancies at an advanced stage. However, for all practical intents and purposes, abortion which is usually carried out in the early stages of pregnancy will still be permissible under the law should the additionally proposed wording relating to “protecting the health of a pregnant woman suffering from a medical complication which may put her health in grave jeopardy” be retained.
Babies born before 24 weeks generally cannot be expected to live because their lungs and other vital organs would not yet have developed enough. That would essentially give a six-month window to abort merely on the pretext of the possibility of the pregnant woman’s “health” being put in “grave jeopardy”.
Even when one talks of “viability”, what exactly does that mean? No baby born prematurely could be expected to survive independently, as some form of intervention and assistance will invariably be required. And will the assessment of “viability” be subject to any objective criteria applicable in each case or will it be subject to the complete “subjectivity” of the medical professional involved in each particular case?
I would conclude by appealing to the prime minister to demonstrate his greatness in this historical moment of time not by bringing to bear the mighty political power which he undoubtedly wields in an attempt to swing with the pendulum by appearing to be ‘progressive’ but by having the strength of character to assume the noble mantle of humility, thereby reconsidering his position on the “health” issue and doing what is right and truthful, costing him politically what it may.
Kevin Dingli is a lawyer.