The Department of Health had initially refused to pay for the airfares of the parents of an unborn baby that needed medical treatment abroad on the argument that an unborn child was not “recognised as a person at law.”

The case emerged from the Ombudsman’s Case Notes 2018 report, which was tabled in Parliament on Wednesday.

The woman, whose unborn baby needed an urgent operation abroad immediately after birth, was sent to the UK for treatment by the department. Before departure to the UK, the parents were told that the department was not going to pay them for their airfares, in line with its policy regulating cases of babies or children under the age of eighteen.

The reasoning behind the Department’s decision was that when they left Malta the baby was still unborn. The parents sought help from the Office of the Ombudsman and lodged a complaint.

The Commissioner for Health asked the health department what its position on the matter was, following which the department agreed to pay for the inbound flight of the baby but not of the parents. The Commissioner replied that since the patient was an unborn baby, the department should pay for the parents’ fares as is the norm with patients under the age of 18.

The department then accepted to pay all three inbound flights but not the outward flights.

The Commissioner asked how an unborn baby could receive treatment immediately after birth unless the mother travels to the UK.

The Commissioner for Health argued that, in his opinion, the Department of Health did not send the pregnant women to deliver her baby in the UK but rather for the baby to receive medical care. He recommended that the parents should also be reimbursed for the outward tickets.

But he was told by the department that his recommendation was refused because “a baby in utero is not recognised as a person at law”.

The Commissioner replied that if “a baby in utero is not recognised as a person at law”, why does the Ministry for Health send mothers whose babies in ‘utero’ would need to be operated whilst still in the womb and the mother then returns to deliver her baby in Malta? Therefore, if the “baby in utero is not recognised as a person at law” on what does the surgeon operate?

He also quoted from a 2015 court judgment by Mr Justice Lawrence Mintoff, which shows that an unborn baby has its rights and that once conceived he/she is not an object but a person.

Following this exchange, the department accepted to pay for all flights.

The Commissioner for Health wrote to the Department for Health again, stating that its previous statement was “completely unacceptable, not only because it opens up the entire contested issue of whether the human foetus has a right to the protection of law, but also because it prejudges and compromises the on-going debate on whether abortion should or should not be entertained at any stage.”

This statement goes well beyond what various strata of the political spectrum to date publicly have stated to be their stand on this matter, the Commissioner said, adding that citizens have the right to a clarification on its content and extent and to be informed whether this, is in effect, the official position.

He said that, in his opinion, the court judgment runs counter to the statement made by the Department of Health to the effect that the human foetus does not enjoy any rights, and it has to be kept in mind that this judgement was delivered in 2015, before the public debate on the introduction of abortion had taken ground, and before the legislation allowing for the freezing of human embryos came into force.

This latter development underlines the fact that the law today recognises that the human embryo has an existence that is separate and distinct from that of the mother and the natural father, and can be the subject of rights and obligations, even if one could argue that these concern a stage prior to conception.

The Commissioner said a clear distinction is to be made between when rights and obligations are created, and the moment in time when rights can be exercised and obligations become binding. It is therefore perfectly possible for a human foetus to be endowed with rights when still in utero, even though these rights can only be exercised after it is born and viable, or even before being born, by someone on its behalf.

These are vital issues that need to be determined and should not be lightly disposed of by generic statements that can lead to serious misunderstandings, the Commissioner for Health said.