I have been following the raging controversy stemming from all the correspondence being regularly exchanged in the Times of Malta between those in favour of abortion and those against.

Both sides are miles apart and can hardly compromise on any particular issue related to abortion. However, one particular legal aspect that struck me in part of  such correspondence exchanged concerns the question of whether our criminal code safeguards the mother’s life if and when faced with a difficult pregnancy or in the case of therapeutic abortion.

Again, both sides are poles apart as to whether our law really provides such a safeguard and the nearest that can come close to such a possible conclusion is by interpreting and applying the provisions of an article in the criminal code relating to self-defence.

Pro-abortionists contend that, as things stand, therapeutic abortion is not cleared of any criminal responsibility. The article regulating self-defence in the criminal code is 223, laying down that no offence is committed “when a homicide is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person”.

Depending on how a particular court might interpret and/or apply such a provision, in so far as it is subject to more than one particular interpretation, reasonable doubt legitimately remains as to whether therapeutic abortion is cleared of any criminal responsibility.

Abortion, or rather procuring miscarriage, is regulated by article 241 of the code, laying down that “Whosoever, by any food, drink, medicine, or by violence, or by any other means whatsoever, 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 same punishment shall be awarded against any woman who shall procure her own miscarriage, or who shall have consented to the use of the means by which the miscarriage is procured.”

If death is caused because of the means used, the punishment applicable is that of wilful homicide.

Removing all doubt surrounding this sensitive issue can easily be achieved by a simple stroke of the pen and amending the provision of article 241 of the code to read that no offence is committed if and when miscarriage is procured for therapeutic reasons to preserve the mother’s physical and mental health or to end a pregnancy that tests have shown would result in a child with severe abnormalities.

Both sides in the abortion debate are miles apart- Mark Said

Of course, such therapeutic abortions should be expressly limited to three specified methods, namely manual vacuum aspiration (MVA), dilation and suction curettage (D&C) and dilation and evacuation (D&E). Furthermore, to minimise abuse of such a defence, one could further lay down that the cases of therapeutic abortion must be approved by three specialist physicians with the consent of mothers and final acceptance by the ministry of health and allowed only before week 19th of the pregnancy.

In general, every condition that threatens the mother’s health and endangers pregnancy should be included as an indication for therapeutic abortion.

Since the health of the mother is the main element of family and society’s health, lack of information among pregnant women about the complications of illegal and unhealthy abortion endangers their health and creates financial problems for the health system of our country.

Lack of statistics on illegal abortions, mortality rate of pregnant women and foetal abnormalities in our country and also the shortcoming of the provision of article 241 should cause our legislator to pay attention to this issue and legislate for the express decriminalisation of therapeutic abortions.

I believe that, in this manner, we would have in place special precautions required to prevent abuse of the law by the unscrupulous patient and the ‘sympathetic’ practitioner. The argument, continually aired, that a woman had also the sole right to decide the continuation or otherwise of her pregnancy is but an example of the selfishness and callousness of the present age.

So far, our president, prime minister and the opposition have committed themselves and pledged that abortion will remain what it is: the killing of the innocent and defenceless.

What I wish for is for the law to be so amended that, when the genuine indication arises, our courts can say that the operation was both justifiable and legal. Thus, we would eliminate from the medical practice and profession anything that savoured, even remotely, of illegality.