Following the programme on BondiPlus on the Morning After pill, it is opportune to explore further the legal aspect of such issues. The discussion focussed, or should have focussed, on the legal aspect of whether parliament can introduce the morning after pill. This argument has been the subject of last week’s column and therefore I will not repeat myself here, but will focus on a question I raised regarding the second article of the constitution of Malta.

At one point in the programme someone raised again the issue of when, following fertilisation, one can say we have a ‘person’. Of course the traditional way of looking at things is to consider life beginning at conception. I always express the opinion that if there is a potential person, then you cannot speak of a person and therefore it is better not to speak about a person at that stage, but refer to the fertilised egg as ‘human life’. Notwithstanding the change in nomenclature, we respect human life from beginning to end, and therefore can still morally and legally afford protection at this stage. When confusing names, or rather, when definitions are not clear about nomenclature used, it is best to avoid them. There are many who adhere to this school of thought. If we want to protect the embryo from the point of fertilisation, then we would be better situated by calling a spade a spade and referring to the fertilised egg as human life, and hence indeed a human being. We all started at the stage of one cell and it is this stage that defines a new individual. If anyone of us were interrupted at this stage, then that one of us would not be here.

At this point of the argument the recording of Dr Frank Portelli was brought up, who during the debate on IVF, described correctly that up to 14 days after fertilisation, we can have splitting of the embryo and thus have two or even more beings. Therefore it would be wrong, according to this analysis, to state empirically that we know we have only one person. As far as one sees it from this point of view this is a correct analysis. But there is more to it than that. There is nothing to tell us that the cells were not programmed originally to be split in two and therefore, even though we could not have known, two individuals were genetically programmed. The downside to this argument is that I may split the cells in a laboratory. This manipulation of the first clump of cells will split an individual into several. So, if we speak of a soul, the question would be whether we are creating souls. Again this argument, from a theological perspective makes no sense either, for even if this were possible, the very argument which uses the term ‘soul’ is admitting that there is a Deity, and there is nothing to prevent us from believing that this God knew beforehand that I would split this embryo into several.

The question is more pertinent from a philosophical point of view, when we speak of personhood. Would I be splitting one person into three or four or more? Although there is nothing inherently wrong with this argument, in the sense that even if I did split a person into two or more, that does not make the original individual person anymore less of a person. After all this occurs in nature as well and we have animals and plants splitting in an asexual reproductive manner. We then have no problem of saying that we had one individual before and several individuals afterwards. So why should we have the problem with humans? But using the term ‘human life’ seems to me to create this notion so much the less. For human life is an individual unless tampered with or unless pre-programmed to be so. If the environment has such effects to split it into several, we can still say we had one individual before and several afterwards. I really do not see the problem here.

However both myself and Dr Felice pointed out that Dr Portelli’s argument, which in effect is a common argument and he should not be burdened with it, was used in a different context as the debate at the time of the recording was more of a philosophical nature. We were discussing the morning after pill, how this government should legislate.

This is the stage I felt I needed to bring in several arguments to show that we do indeed have guidelines on how to legislate. There was the complaint that whilst we have a law prohibiting abortion, there is no clear-cut definition of abortion. I believe it was Dr Felice who raised this issue. This is a strong argument for even if we use what Minister Tonio Borg said, ‘mother carrying child’, if we define abortion as being an intended miscarriage, we need to have an implantation of this clump of cells into the placenta. A recent British case in which a drug company was accused of causing miscarriages with the morning after pill used this strong argument: You cannot miscarry unless you are already carrying. All scientific evidence pointed to the fact that you can only be called to be ‘carrying’ if the embryo has implanted itself. If the embryo is in the free space and canals of the mother, should we oblige her to carry? It would be noble to ask her to save that child, but can we legally oblige her to do so?

Now as much as people try to avoid religion in these arguments, I feel they cannot do so. As seen in the previous paragraph, if we use solely philosophical arguments we go round in circles as well. I can retort to the above argument by saying that, if, whilst the embryo is still in the tubes (and has not implanted itself), the woman had to hop on a plane and go to America it would ‘carry’ the embryo with it, even before implantation. So it all revolves around how we want to use (or misuse) the word ‘carry’. At this stage we find ourselves at a dead end, as people will simply use the arguments and definitions which suit them most.

But the point was that we were speaking of legislation. The Parliamentary Secretary pointed out (I believe it was in the interval) that the Embryology Act is in the pipeline, but of course, it is not binding until such time as it is voted upon. So I dared to mention the second article of the Constitution, which declares that the Roman Catholic Religion is the official religion of Malta. It was pointed out that this was merely a point of fact and in no way does it bind us to legislate according to Canon law or other norms of the Church.

Not quite so! Although it does not mean that all law must be according to Church documents, in the sense that not all that is immoral can be considered illegal, and we are a free country notwithstanding, Article 2 is not there in a frivolous manner either. No one put it there to say ‘look how good we are’. It is there because the people who voted on the constitution, felt that it expressed a normative value of the Maltese population. So when it comes to contraception, consensual sex, and even separations, one has to concede certain freedoms unless one agrees to go back to medieval thinking. But when it comes to issues such as questions of life and death, the Maltese population still cherishes certain values.

I have yet to see a political party to challenge not only this second article but to point in favour of abortion. And if that time should come, how much more would we have to wait when it will have enough voting power to over-ride these normative values. We hold values regarding the embryo because it is in our normative values to do so. Normative values are born from culture, family, religion etc. This is so true, that although the constitution allows freedom of religion, it will certainly not make laws according to other religious values which come into conflict with our own religion. This is so true, that many speak of the power that the Church still enjoys, and this is so because people give you power, which they can take away. This is so true that one of our main political parties thrives on the Catholic vote, and the other lags not far behind. The whole point being that if the Embryology Act, which was written by a priest who told me so himself, defines that life begins at conception, and if the Catholic Religion still upholds this value anyway, then I cannot see how parliament can legislate otherwise.

Not to say that it cannot; after all, as we said, we are in a free country. And parliament has the freedom to define abortion as occurring after you have an implanted embryo. But the question is will parliamentarians take that risk, even if they wanted to. Whether this is freedom of will, or a form of threat and oppression, is an open question. The point I was making was, let us be clear with our audience: For a discussion on the morning after pill, we have to depart from the assumption that our parliamentarians will take the moment of conception as ‘start’ and any legislation will revolve around this. It would be difficult to say this is a false premise.

So, while I strongly believe what any biologist would attest, namely that life begins at conception, and whilst one has to concede that the ‘carrying’ argument has some weight (should we oblige a woman who has been raped not to protect herself from implantation of a fertilised egg still floating in her tubes; considering as well that even fertilisation is a process which lasts up to 24 hours), one cannot affirm at this stage that parliament has any alternative but to uphold the value of life from the completion of fertilisation. The argument was after all about the law. Parliament can however argue that since doctors are allowed to use this drug before ovulation as a mere contraception, as at this stage there is no fertilised egg, and one would merely be prolonging ovulation, and since doctors at the moment have to use normal contraceptive pills in an off-label manner, which carries medico-legal risks once a proper preparation is available, then it may allow the use of this drug during this period, conferring the moral responsibility on doctors, and of course on patients to tell the truth. If we do not trust people and doctors, then that is another question...



Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta. He is also former president of the Malta College of Family Doctors.