The Malta Independent 3 February 2023, Friday
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A threat to proportionality and to life

Michael Asciak Sunday, 4 December 2022, 08:03 Last update: about 3 months ago

If the Minister of Health has his way and proceeds with the Bill for amendments to allow doctors to terminate a pregnancy if there is a threat to the life of the mother or of a grave threat to her health, he would be going beyond what is the present modus operandi by doctors and opening the floodgates for abortion.

O. Carter Snead, Professor of Law and Politics and Chair of the de Nicola Center for Ethics in the US, has stated unequivocally that once the 'threat to the health' of the mother is introduced into law and allows for the termination of a pregnancy, the flood gates for abortion are opened. Professor Carter Snead states that where this amendment has become law there is no dearth of doctors who state that they would be ready to certify any pregnancy as a threat to the health of the mother!

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This seems to be the experience in several other countries too. This follows certain patterns in present western society where the emphasis on atomic individualist behaviour trumps the attention that needs to be given to social solidarity especially where there is need for support at times for the weakest members of society such as children and old people. This echoes Judith Jarvis Thomson's argument that being forced to carry a foetus to term is a violation of a women's right to control her own body. However the women in her thought experiment is not simply refusing to be connected to the violinist, but is causing active harm by carrying out the abortion. Prima facie, the right to life trumps the right to choice.

The trouble with the government's argument is that it fails to consider that when a doctor is faced with a dilemma where the baby in the womb is threatening the life of the mother, one has to consider the life of two human beings not one, the mother's life, and the baby's life. There is a human being from fertilisation, states our law (Embryo Protection Act) and our Constitution clearly states that everyone has the right to life.

When faced with these issues, a doctor usually considers the principle of double effect as a way out of the situation, where if all conditions are present, the termination of the baby's life is considered an indirect effect to another action. If the proper conditions are not present for double effect, one uses proportionate reason, where one foresees the unintended effect of the baby's death but one reasons that it is better to lose one human being rather than two! In both these ethical principles, there is the element of proportionality. Better to lose one human being rather than two! However in the amendments in the Bill the Minister of Health is moving forward, the death of the baby is not only weighed against the death of the mother and the baby, but also singularly against a threat to her health. Because of this, the element of proportionality found in the present modus operandi has been lost and in this respect the Bill introduces a retrograde element. An element that if allowed to be introduced will just allow abortion to be carried out even if the threat is seen to be in the mental health field, more difficult to ascertain that threats to physical health alone.

Another issue is found in the fact that as soon as this Bill passes into law, what up to this moment was considered as a contingency will become a regular necessity. What was previously an exception would become the rule and therefore no longer contingent. Rather than look at exceptional occasions to apply the ethical principle, it becomes a legal instrument of regular use, regularising the practice of abortion in the end.

The Prime Minister and the Minister concerned seem to give the impression that once this Bill becomes law, the occasions for its use will be rare and that doctors who abuse of it will be severely dealt with. This statement does not however do justice to the current levels of enforcement in other fields of operation in this country, neither does it do justice to the fact that destroying an innocent human life is murder. The right to life is not an absolute right but the right to life of an innocent human being is an absolute right.

If the Minister is serious about not disconnecting mental health from physical health in the Bill being proposed as suggested by several academics, then he has only one way forward and that is to remove the whole term 'the grave threat to health' of the mother as a cause for termination and leave only 'the threat to life of the mother' as the only operating exception. I strongly believe that even if the threat to life alone is left in the law, it needs to be subject to very strict ethical review made up of doctors, ethicists and lawyers. If none of this happens, we will be lead to believe that there are ulterior motives behind the introduction of this Bill.

Dr. Michael Asciak  MD. M.Phil (European Studies and Ethics).  PhD (Biomedical Ethics)

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