Last June, pregnant American national Andrea Prudente unfortunately suffered a premature rupture of her membranes as well as partial separation of her placenta during a holiday in Malta. Although the pregnancy was most likely non-viable, although not absolutely so, the baby’s heart was still beating.
Nevertheless, she insisted that the pregnancy should be aborted immediately, irrespective of the fact that she was being given the best local care and the condition was not in any way life-threatening.
She subsequently challenged Malta’s doctors and fuelled an intense international campaign based on the unsubstantiated claim that her life was in immediate danger. It is unfortunate that some local doctors supported her claims, even though this was vehemently denied by hospital specialists. The fact that no local deaths have resulted from similar pregnancy complications in over a decade gives strong empirical support for the latter opinion.
Moreover, as reported in the Times of Malta on September 22, Prudente claims that Malta’s laws criminalising abortion, specifically articles 241 and 243 of the criminal code, are “in breach of a range of fundamental human rights”. This is being contested by the local authorities and the fact that Prudente’s life was not in danger has also been affirmed under oath by the state advocate.
Recent population surveys have confirmed that a clear majority of Maltese remain opposed to the introduction of abortion in any circumstance and the majority of those in favour stipulate that such is only acceptable to them in exceptional cases. Less than 10 per cent of Maltese are in favour of abortion on demand.
Nevertheless, Deputy Prime Minister Chris Fearne has proposed a significant change in Maltese law. Such a proposal, decriminalising abortion in case of any “serious risk to health”, has been judged by many, including myself, to be wide open to abusive practices.
In theory, any medical condition, including hypertension or an abnormal urine glucose test during pregnancy, can be judged to pose a serious risk to health.
Indeed, pregnancy itself can be considered to be a significant risk to health since maternal deaths during pregnancy and birth, as well as the immediate post-partum period, are rare but by no means unheard of.
The local maternal mortality rate was reported to be six per 100,000 live births in 2017.
In response, a group of local academics have proposed an amendment to the proposal, aiming to address such concerns. They propose that the law be amended as follows, so as to protect both doctors and mothers from prosecution only when the mother’s life is at risk from physical pregnancy complications:
“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.”
Unfortunately, in my opinion, this proposal still falls short. Conditions such as high blood pressure or diabetes in pregnancy carry a small but non-zero risk of fatal outcomes. As such, the definition of “substantial” is critical and such remains arbitrary unless precisely pre-defined. Once such a condition emerges, the embryo or foetus would, therefore, no longer be protected at law.
A clear majority of Maltese remain opposed to the introduction of abortion- Jean-Karl Soler
The qualifier “physical” is also open to misinterpretation or intentional manipulation. In reality, there is no mind-body dichotomy. Here I refer to the work of George Engel, who showed that all illness has biological (physical), psychological and social dimensions.
We take chemical treatment for depression, so can anyone argue that mental illness has no physical cause, manifestation or impact? Can such considerations affect the interpretation of this clause in a court of law?
I would propose that those who genuinely intend to protect both the mother and the doctor from legal consequences in the case of a dangerous pregnancy complication but who also want to protect the unborn from unnecessary harm might consider an alternative proposal. As such, I propose that articles 241 and 243 of the criminal code should not apply when at least four principles are all met, namely:
A woman is in imminent danger of death from an acute complication of pregnancy; such is broadly recognised through a consensus of both specialists and current medical evidence; there is no effective alternative treatment; and every effort is made to safeguard the embryo or foetus from direct harm, except such which is inevitable from the actual procedure, both during and after the procedure.
Such amendments will protect both the mother and the doctor from prosecution when the mother’s life is at risk, which is the stated intention of the legislators.
However, such would also preclude termination at request, based on an arbitrary decision to exaggerate a hypothetical risk with the intention of justifying such.
The clause on alternative treatment qualifies that termination of pregnancy should always be the last resort.
The clause to safeguard the embryo or foetus is missing from both the original and modified proposals and is critical to prevent procedures which target the life of the unborn child.
I must emphasise that none of the above proposals specifies a term after which abortion is unacceptable.
As such, it is quite plausible that, with either the original proposal for a new law or the proposal from the group of academics, any loophole would prevent legal consequences for the barbaric practice of full-term abortions.
For example, a woman might claim that dangerously high blood pressure in the last weeks of her pregnancy should be treated with an abortion, rather than anti-hypertensive medication. In such case, either of the original two proposals would protect both her and her clinician from any criminal proceedings.
With the proposals I make above, such would not apply. Although hypertension is a physical illness which carries a real and substantial risk to the mother’s life, an alternative treatment is available (both drug therapy or early delivery) and any termination would violate the last proposed clause which directly protects the baby, who could and should be delivered without harm.
I am sure my draft proposals can be refined and added to by legal experts but I strongly argue that all four such principles should make their way into any new law, in order to avoid introducing abortion by stealth.
Jean Karl Soler is a medical doctor and researcher.