The Bill to decriminalise abortion when there is danger to life and for certain health and mental health reasons has given rise to controversy. I, too, had pointed out that clarification was needed. However one has to go further than this in my personal position and, rather than tackling a moral conundrum, I chose to tackle it through a patient’s rights position. If not respected, this will of course give rise to another moral issue and also be in breach of the European Convention on Human Rights and the European Convention on Human Rights and Biomedicine. I met with several gynaecologists to discuss certain points of view.

Before that I must state that I started from the position that abortion is morally wrong and, of course, to be consistent with the wishes of the PM. The objective was to care not to, as some would put it, bring in abortion through the window. Taking the position from a patient’s rights point of view means therefore that we will remain within the realm of health care and would not consider the issue of ‘safe abortion’, as this argument still cannot be considered a ‘right’ when that right does not exist under the law or as a basic human right. I have however in the past defined that Reproductive Rights are basic human rights, whose breach turn the person into a patient in cases of rape.

This leads us to the first problem – that of mental health. The evidence supporting a link between abortion and mental health is scant and controversial according the British Medical Association. A study carried out by the Academy of Medical Royal Colleges (intitled Induced Abortion and Mental Health) did not show that abortion causes mental health problems; rather it is the unwanted pregnancy that may give rise to this. Again this is something which many will take with a pinch of salt, unfortunately. But in cases of rape there is no doubt that this should be considered. I have written a lot about this issue and there is no need for repetition here. Rape is a violation of one’s body and the only true breach of reproductive rights, other than family planning (which has other means of being controlled). As to the latter, also, one cannot within reasonable argument eliminate the responsibility one takes in conceding to sexual activity of the risks involved. We know the risks of driving, of driving under effect of alcohol, perhaps even of crossing the road. Even if one follows all the rules, accidents do occur.

When considering patients’ rights there were two concerns – that of defining ‘health’ and that of what we mean by ‘grave’. I shall start with the latter as it seemed to me the more obvious. Grave implies a ‘grave permanent injury’. Usually, what is a ‘grave permanent injury’ is not decided by a judge alone, for example. The courts of law bring in experts, in this case the medical profession (and, more particularly gynaecologists), who together have to define it. To illustrate, under our legislation we define ‘grievous bodily harm’. But there is a compendium which defines grievous harm of fractures and loss of function, from a finger to a leg, and it is the medical professionals who have to decide the percentage (in this case) of loss. It goes without saying that grave permanent injury is not to be stipulated in the amendment but ought to be followed up by a similar document defining the standard of care.

In order to drive in this point, I again quote the British Medical Association, which states, in The Law and ethics of Abortion, that “in Section 4 of the Abortion Act is a conscientious objection clause which permits doctors to refuse to participate in termination, but which obliges them to provide treatment necessary to save the life or to prevent grave permanent injury to a pregnant woman (italics mine). The law itself does not define what this is.

Then there is the problem of what constitutes health reasons. Again, health is a very broad term and so the medical profession must come to terms and provide guidance for the law and courts. In this it is of no use going on moral grounds of the status of the fetus alone, but one must balance this against the moral (and legal) rights of the patient. I discussed the following with several gynaecologists and we agreed that they are generally licit.

These include:

·        Preeclampsia in which the woman’s health is deteriorating due to disseminated intravascular coagulation or the imminent possibility.

·        Confirmed cases of rape.

·        Underage, e.g. 13 year olds who cannot within reasonable knowledge consent to sexual contact.

·        Cases of cancer requiring an operation where there is significant danger to life or its prolongation.

·        Anencephalic babies and babies deemed to be non-viable, or not making it to birth, or deemed to die within the first months of birth

·        Medical conditions considered high-risk (in which the mother is usually advised not to get pregnant) and where the condition during pregnancy may cause grave permanent injury due to the pregnancy.

It was always emphasised that in these cases the issue is not deliberate but one that respects patients’ rights to determine their treatment. It goes without saying that one should not only offer a termination but offer all possibilities with a clear explanation of the risks. The final person who ought to make an informed choice (with emphasis on ‘informed’) is the patient herself. Not doing this not only breaches ethics, but breaches the law. It goes without saying that the medical profession must agree, in a non-paternalistic manner, on these and possibly other conditions.

A caveat on ‘confirmed cases of rape’ is that this means that a victim must report to the police or doctor (who then is to have an obligation to report the case herself)  within a reasonable time and be examined by a police doctor, have swabs for DNA testing, given appropriate management and offered emergency contraception, in order to avoid a future abortion. But one has to allow for the exception that the conception fails. This is a condition in which future mental health ought to be considered. We must have an appropriate set-up in health centres for this.

When it comes to mental health, of course, there seem to be no drugs which inadvertently harm the baby. But in conditions of substance abuse, considerable harm may indeed result on the born baby. Is this a reason for abortion? Personally, I do not think so unless there is reasonable evidence that the mental state of the person is being unduly affected and a danger to both lives – again something to be agree upon by the profession.

Finally, I am sure that some would say, ‘why is it that the medical profession that has to decide’. Under Tort Law, when assessing negligence, it is the profession concerned that must assess of the standard of practice is – if something occurs in one’s building, it is the building experts who have to say whether everything was done according to standards.  The medical profession is held to ‘standards of care’ (such as the NICE Guidelines (The National Institute for Health and Care Excellence) as defined by the profession.

The profession has to define the standard of care, what is grave injury, and what options need to be offered to avoid it. If it is a termination is considered, we ought not to see this a beginning of a slippery slope or a breach in the morality of the status of the embryo, and neither a failure of the Embryo Protection Act, but indeed a courageous act to support patients’ rights and our duty to uphold them when conditions are satisfied. The baby is innocent; but so are patients.

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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.