The Bill on termination of pregnancy when there is danger to the life of the mother is welcome and I commend the courage, in the face of some opposition, to put it forward, without compromising values and commending abortion in general to moving forward. As many know I have frequently advocated this move as it is not about killing babies in general but balancing the value of life of the fetus with the rights of the women to make a choice when her life is in danger. Again I commend the Archbishop who in principle supported this Bill. Of course, there is the issue of health and the Prime Minister’s interview this weekend should alleviate concerns that abortion remains illegal and that the issue of health should be strong enough to merit this decision. It is this which I wish to speak about.
As many do not appreciate, abortion remains technically wrong in the UK and the Abortion Act allows abortion for reasons of health. There has to be the signature of two doctors to agree. In time, however, the issue of health has been very difficult to interpret and became quite subjective. Does a single mother with two children and who may argue that she needs to continue working in order to support her family merit a “health” reason? If she is going to be thrown into poverty there may be a good argument but such decisions have led to abortion being given for many reasons and this had also raised concerns on the British medical journals.
The PM has been adamant that there will not be any abuse. The law therefore has to stipulate conditions where this law can be applied. “Health” is a much broader term than “medical”, (biopsychosocial model notwithstanding). Deputy Prime Minister and Minister for Health, Chris Fearne is certainly working hard to introduce laws which support patients’ rights in all their dimensions while being conscious, after having spoken to him, to reach consensus. In this regard I believe that the Opposition has to work with government as it did with the recent amendments on genetic diagnosis, in order to produce a good law for the normative values of the public.
It is time that Malta moves away from a Paternalistic medicine. What right does a doctor have to decide that a woman, as happened with the American patient, be put at some risk, even if minimal, because there is a beating heart when the baby was going to be aborted. Even if aborted naturally, it does not mean that when the process starts, the heart is not beating. But in order to satisfy the law, one cannot blame the gynaecologist for the decision, as there was, until now, no contemplation of legal clarity. Yet we know that tragedies have happened. This is what led to an Abortion Act in Ireland. When tragedies happen, emotional contagion will move in the direction of winners and losers. This is not want we want. We want a compassionate society which respects the rights of the fetus and also that of the mother. Once we are discussing health, it is only the patient, not even her husband, who must decide. This does not mean that she cannot be counselled.
It is the abuse of interpretation of a law that we have to clarify and it is here that the Opposition, led by Bernard Grech, has to work on. The Opposition has a right to maintain its principles and I personally abide by the same principles. But principles are always mid-level when it comes to health care. Bioethics has shown that it is very difficult to balance the four principles of Respect for Autonomy, Beneficence, Nonmaleficence and Justice, when there are no clear-cut guidelines. Conversely, as in the case of the Siamese twins Jodie and Mary, allowing “nature to take its course”, considered by the then Bishop of Gozo, would have seen both babies dying (intentionally). The law saw otherwise. And saving one life was considered more important. In the aftermath many theologists argued that the Doctrine of Double Effect could have been invoked, even though the judge did not consider it.
The same can be said when the intention is to save the life of health of the mother. Without going into details, I have had opportunity to explain in the past that a foreseen harm is allowed if the intention is not that harm, although it is foreseen and indirect. When considering danger, it is certainly not the death of the baby that is intended, although it is foreseen. Neither is it direct, as a direct action is one that is intended, period. Otherwise we would outlaw the new technology of laparoscopic removal of an ectopic pregnancy without removal of the tubes (if they are not inflamed). Wait-and-see procedures put people at risk; if anything, it is paternalistic and a decision about the faith of others. When tragedies happen, then we try to justify ourselves; but the tragedy has happened.
Double effect has not proved very useful in practice as philosophers, and most notably, theologians, have to agree before it can be applied clinically (as for pain relief at the end of life, and treatment of pregnant women).
I am not surprised that doctors-for-life have raised concerns. This is good as it is this dialogue which makes good laws. But let us be clear. In principle, this is a good law and respects the rights of women. Abortion in general is not considered universally to be a right. It is certainly not a reproductive right, as reproduction has occurred. But termination for serious conditions is a right, given it is a patients’ right to make choices when their lives are at stake. What is wrong is trying to interpret health as something more than medical in these situation. There may be those who disagree. A request for abortion as a reproductive right is only valid for rape, as it is this act which violated this right. And this law does not contemplate this. During gestation, reproduction has occurred. Arguments for reproductive rights, including the number of children one wishes to have is also legitimate, but there are other means to prevent this. This is why we also introduced emergency contraception, notwithstanding controversy. We cannot allow slippery slopes.
Women have the privilege that nature has provided, to bring children into the world. This privileged has been a tool to dominate them in paternalistic dominions. This should change. This is not a religious war – but there are underlying currents of the tough history women had to go through, including being dictated on to take unnecessary risk to life. It is this that this law tackles and one augurs that the Opposition will work with government to agree on conditions and penalties for their breach.
Pierre Mallia is Professor of Family Medicine and Patients’ Rights and teaches at the University of Malta. He chairs the Bioethics Research Programme of the Faculty of Medicine and Surgery. He also chairs the Bioethics Consultative Committee.
Email: [email protected]
This article is his personal opinion and does not represent the opinion of any committee or Board he serves on