Arguments on abortion gleaned from the media in Malta generally range from reproductive rights to women’s rights, from bioethics to religion. Not so common are secularist arguments highlighted in an interview on a local radio station by Rebecca Kiessling, president of Global Pro-Life Organization. It is appropriate to re-visit them, taking the cue from science and the law.
There is irrefutable scientific evidence that the human embryo satisfies the four fundamental criteria of biological life – metabolism, growth, reaction to stimuli, and reproduction – criteria of a higher order of organisation than the mere activities of cellular life.
Medicine, too, confirms human life before birth: ultrasound provides videos of the active life of the foetus, while foetal surgery is a specialisation. On such evidence, many are re-visiting their ideas on legalised abortion.
For instance, by 2009, a significantly greater percentage of Americans identified themselves as ‘pro-life’. This change of heart is indeed a reaction to the Roe vs Wade court ruling that permitted abortion at any time if doctors deem it as a necessary measure to protect the mother’s health. Criticism of Roe v Wade was also levelled by prominent pro-choice legal commentators. For the late John Hart Ely of Yale, it is a “constitutionally wrong decision”. This raises the question about Malta’s legal position.
A direct reference to abortion is found in the Criminal Code (Chapter 9, Laws of Malta): “Whosoever… shall cause the miscarriage of any woman with child, whether the woman be consenting or not, shall, on conviction, be liable to imprisonment for a term from 18 months to three years.”
The law also prohibits, under penalty of imprisonment, medical professionals from “prescribing or administering the means whereby the miscarriage is procured” [Art. 243)].
Whether Maltese courts would reject a plea of necessity in the most serious cases of a threat to the life of a pregnant woman is debatable since the law is silent on defences or excuses.
At a national conference on the Well-being of the Unborn Child in 2005, Magistrate Consuelo Scerri Herrera referred to the abortion law in Malta. She is reported saying that any type of abortion in Malta is illegal, and both the mother and person carrying out abortion are liable to punishment.
Emphasising that protection of life is ingrained in Maltese culture, she referred to a court case in 2000 when a Maltese man had filed a judicial plea asking the court to stop his Moroccan girlfriend who was pregnant with his child from being deported for fear that his girlfriend might have had to abort in her country of origin because of cultural and religious beliefs. The Maltese court decided against deportation, sending thereby the message that the unborn child has the right of life under all circumstances.
At the same occasion, Tonio Borg, then minister of home affairs and justice, announced the government’s proposal to entrench abortion law in the Constitution. Borg’s premise was that “if our materialist world forgets those who are alive, how easier is it to forget those who have not yet been born?”
Even natural law itself detests to see the destruction of the beginnings of biological life generally, let alone if this is a human life
The proposal garnered the support of the Labour Party with Joseph Muscat, then leader of the Opposition, in April 2012, stating that he sees the possibility of a national abortion debate as an opportunity to convince more people to take a pro-life stand.
Objectors to this proposal made reference to the use of the word ‘person’ in Articles 32 and 33 in the Constitution which raises the question of whether the law requires the State to treat the unborn foetus as a person under the law.
Centring around the apparent dividing line between ‘human being’ and ‘person’, the issue is more philosophical than legal. In brief, when we speak of a person we refer to the human being who is the unity of physical body and spiritual consciousness. A human being is a person who exhibits qualities that are characteristics of human beings alone and who has been given legal rights.
Even if legislators tend to agree with the argument that the unborn foetus is not a person in the strict sense of the law, public perception is that it would be legally unwise and ethically imprudent to amend a culturally ingrained law which is there not only to protect and respect but mainly to prohibit the termination of the foetus.
There seems to be a general consensus, practical knowledge and good sense among the Maltese population that even natural law itself detests to see the destruction of the beginnings of biological life generally, let alone if this is a human life at its most fragile moment and completely dependent on others.
The reasoning underlining the ‘human embryo – human life – personhood’ model may also shed light on Article 2 of the European Convention on Human Rights, stating that, “Everyone’s right to life shall be protected by law”, a right that has been incorporated in Maltese legislation through the European Convention Act (Chapter 319).
The same can be said about the UN Declaration on the Rights of the Child (1989), of which Malta is a ratifying country, where “every child has the inherent right to life”. Other supporting laws which can be invoked are the Act establishing the Commissioner for Children and the Child Abduction and Custody Act (Chapters 462 and 410, respectively).
In the former, the Children’s Commissioner has the duty of “promoting the highest standards of health and social services for women during pregnancy. .. including adequate legal protection, for children both before and after birth”.
In the latter Act, the director responsible of welfare can take action if it is being alleged that a child “has been wrongfully removed”.
Examples from science and law hereby being proposed for consideration present another perspective on abortion. The aim is to take a pro-life stand which is neither conservative nor anti-conservative. Nor is it the position of the Christian right or that of the liberalist left. It goes beyond religious convictions and Church affiliation.
Which is not to say that these have no right to state their positions based on their values and beliefs. It is just another approach which can be more relevant to a pluralist society that is becoming more secular and to secularists who also have their own values to be listened to and respected.
Philip Said is Nationalist Party Żebbug local councillor and a former education officer.
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