One need not be a discerning observer to recognise that the debate on the decriminalisation of abortion has been characterised by a mismatch between the objectives which bill No. 28 of 2022 purportedly set out to achieve and the draft text used to implement those objectives. 

The early political statements were to the effect that the purpose of the amendment was to write into law a protocol currently followed by medical practitioners, which enables an intervention on a pregnant woman when her life is in jeopardy and, in the process, the life of an unborn child is terminated as a consequence.

That protocol has stood the test of time. Even though there was no compelling need to legislate on the matter, introducing clarity and certainty to address such challenging predicaments is laudable. Providing a sounder legal basis for that protocol should not necessarily have been controversial.

The controversy has been brought about principally by legal drafting which, whether deliberately or inadvertently, introduces gaping loopholes rather than certainty.

The controversy has also been fuelled by misguided statements which suggest that the objective of bill 28 is in fact to widen the grounds on which pregnancy may be justifiably terminated. By way of example, the prime minister is on record stating that the proposed amendments will prevent the Andrea Prudente case from ever being repeated.

That could only be the case if the proposed amendment allows for termination of pregnancy in circumstances where an abortion would not be currently justified in terms of the existing protocol. The prime minister is also reported to have stated, soon after the vote on the second reading, that “the main principle remains that if the foetus can be born and will live, it should be born”.

Firstly, truth be said that this principle is not borne out by the proposed amendment. Bill 28 says nothing of the sort. Secondly, even if this principle is introduced at committee stage, laudable though it may seem, it has shifted the current goalposts drastically.

At law, life is today protected from conception and not from the moment of viable birth. The dignity of life is not measured or valued in terms of its stage of development or the extent of its autonomy or viability. 

Any mother who has miscarried grieves her unborn child and not a non-viable embryo- Arthur Galea Salamone

Only a few months separate a ‘non-viable’ embryo from the crying, loving, vulnerable infant that is placed in a mother’s arms a couple of minutes after birth.

Any mother who has miscarried grieves her unborn child and not a non-viable embryo. It is political statements such as these which cast serious doubts on the real intentions of bill 28.

The more problematic aspect of bill 28 is the justification to abort a child when the mother’s health and not her life is in grave jeopardy.  Health is very widely defined by the World Health Organisation as “a state of complete physical, mental and social well-being”.  In this light, do temporary setbacks to one’s complete, physical, mental and social well-being, albeit grave, justify murder of the unborn? 

Do grave health setbacks which can be addressed by medical care and/or treatment justify termination of pregnancy? Given the possible wide interpretation of health, could an abortion be justified in terms of the proposed wording, if a single mother who is struggling financially, genuinely sees the challenges of an unplanned pregnancy and the prospects of raising her child as gravely jeopardising her social well-being?

The purpose of these questions is not in any way to trivialise the importance of women’s health. There should be no doubt that a woman’s health, interpreted in as wide and holistic a manner as possible, should be promoted and safeguarded.

This objective need not however necessarily be pitted against the life of an unborn child.  The debate need not be framed as a mother versus child issue.  Often enough, setbacks to a woman’s health in pregnancy can be managed while safeguarding the life of the unborn child.

Yet the wording in bill 28 appears to suggest that a medical practitioner can actively intervene to terminate pregnancy, at any stage of the gestation period, even when there are alternative approaches to treat medical conditions which jeopardise a woman’s health.

The experience in other countries has indeed shown that the ‘health’ exception has provided a point of entry for abortion on demand, even in view of a progressive widening in the interpretation of what constitutes health.

Even a well-intentioned amendment, if poorly drafted, may indeed introduce abortion by stealth. Accordingly, it is hoped that during the committee stage, a mature examination of bill 28 will be conducted, with the help of expert hearings, devoid of political posturing and doublespeak.

No justification of abortion, limited though it may be, should be taken lightly.

Whether it is reframed as a human rights issue, a women’s right issue, an equality issue, an autonomy issue, or a women’s health issue, abortion is the violent termination of an innocent and vulnerable life. 

Life is a gift so let’s treasure it. My final appeal goes to our MPs and the president of the republic, who have the final say whether bill 28 becomes law, either in its current form or otherwise, to ensure that they will not be accomplices, wittingly or unwittingly, whether by commission or by omission, in the unjustified legalisation of abortion.

Arthur Galea Salomone is a lawyer. He is a former chairperson of the Malta Stock Exchange, deputy chair of the Malta Arbitration Centre and president of the Cana Movement.