The worst thing politicians can do is to confuse the public or to have under-currents. It was obvious from the beginning that the word ‘health’ in the proposed bill to decriminalise termination when the mother’s life is in danger was controversial. One has to define the parameters of what we mean by ‘health (as otherwise a depression or having three children may count). But the whole argument has been politicized. When this happens, people move towards their corner and there is no face-saving opportunity. Moreover, by doing this, one stifles coming together on common ground.
As a bioethicist I make enemies and friends on both sides of the argument. I am happy with this because I see the role of the bioethicist as either to support conservative or liberalist views, or, better still in my opinion, of trying to make extreme sides see the common ground – not to minimise any damage, but to be faithful to the ‘truth’ and not manipulate something which has genuine intentions.
Thus, when one argues that ‘health’ must remain in the proposal one has to admit that this word cannot go without strict defining of what one really intends. Conversely, saying that we do not need a law to comfort and protect doctors is also a futile argument. It is basically trying to throw out the baby with the bath water. Doctors need the comfort of the law even if to avoid the hassle of going to court to defend their actions. Moreover, just because no doctor has ever been accused when terminating a pregnancy for medical reasons, it does not mean that someday this may not be the case. Even more important, it is not about the doctor; only but about the right for the patient to decide whether she wishes to wait for a natural abortion.
But let’s be clear, a beating heart is not taken into consideration when we have an ectopic pregnancy; neither in the case when one had to operate and remove a cancerous uterus (nowadays there are better procedures but it may still be a possibility). Therefore, once we have a case that one is certain that the pregnancy is non-viable, the woman has a right to decide whether she wants to wait for a natural labour or be induced. As in the case of an ectopic pregnancy, we do not need to worry about a beating heart or not; the baby will die and there is no reason for a paternalistic approach and not allow the mother to decide. Certainly not on any religious or moral grounds, as this has been established by double effect doctrine. It is clearly about rights and not about morality here. The principle of double effect, (for those who wonder), is satisfied as it is in ectopic pregnancy, and, a pregnant uterine cancer which requires a hysterectomy. This has been accepted even in Catholic doctrine officially since 1985 through the Belgian Episcopal Conference.
Speaking about the past is speaking about paternalism over women and not respecting rights, period. However, there is a caveat here for those who think that Malta is breaching human rights by not recognising abortion. It is not. Whoever says that we are breaching the Council of Europe’s Protection of Human rights in biomedicine has clearly not clearly read the convention (the Oviedo convention). The fact that many countries give abortion rights does not make it a human right. What are human rights are patients’ rights, and it is this that we should focus upon. For example, we may discuss the issue of rape as whether it constitutes a grave risk to health, especially in young abused children of 13 or 14. This is the only place when we can speak about a reproductive right having been violated. It is also a grave assault, grave to a future psychological future and therefore one cannot force a pregnancy. Rights must prevail. However, one has to protect against all claims of rape. We should have a system in place where women can safely go immediately and be seen by a doctor (preferably a woman-doctor) who will have the right set-up to examine her, take swabs, offer flushing out of fluids, and even offer emergency contraception. When this fails (and it is rare), then the option can be considered. It is now legitimately her future life on stake.
Other claims for reproductive rights are not reproductive at all. Call them women’s rights or gestational rights – at least this is more honest, but it would not exclude legitimate reproductive rights. Once a pregnancy has taken, reproduction has occurred. This false nomenclature tries to legitimise something thwarting the truth. Whilst reproductive rights include family planning, there are other means other than abortion to control this and abortion certainly is not a universal right.
Let’s concentrate on basic human rights and legislate accordingly, looking for win-win situations. This is not about political power or gain; it is about our responsibility to each other. We need to amend end-of-life laws, we need to amend even sick-leave laws (not to change the subject but I keeping with health – it is ridiculous that part-time workers half the sick-leave of full-timers. As if they get sick half the time only!). Nobody wants a constitutional crises, although I believe that should the right terminology be used our President can maintain his honesty by appealing to the spirit of this amendment and put his trust on the Prime minister and the justice system to oversee that people to not in any way abuse the terms ‘health’ and grave’. For this to occur the law has to be clear, otherwise the ‘heavy penalties’ promised will not hold and people will get away with impunity.
Pierre Mallia is Professor of Family Medicine and Patients’ Rights and teaches University of Malta. He Chairs the Bioethics Research Programme of the Faculty of Medicine and Surgery. He also chairs the Bioethics Consultative Committee.
This article is his personal opinion and does not represent the opinion of any committee or board he serves on.
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