On Friday 23 June 2023, after a seven month hiatus, government published its amendments to its own abortion decriminalization bill (Bill No. 28 of 21 November 2022). To prohibit outright any criticism of its half-baked bill, our ‘democratic’ government that considers itself to be fully compliant with the rule of law, has appointed for Monday 26 June 2023 the discussion of the new amendments in Committee stage. One cannot understand why all this rush. Neither the Opposition have been allowed sufficient time to digest them; nor civil society and the population at large. Needless to say, the amendments do pose several problems. At least however, they indicate that government wanted, in Bill No. 28, to introduce abortion by stealth in Malta once it has now clarified some parts of its own previously vague, unclear, and ambiguous draft in the direction of abortion decriminalization in certain circumstances. It appears, at face value, to have backtracked to a certain extent. In the limited time available to study the amendments before the rushed Committee Stage discussion, my initial comments on government’s 23 June 2023 amendments follow.

Article 243 proviso, paragraph (a)

Paragraph (a) of the proviso to article 243 reads as follows: ‘ in the case of a pregnant woman suffering from a medical complication which may put her life at immediate risk the medical intervention is done when in the reasonable opinion of the medical practitioner carrying out the intervention the foetus has not reached the period of viability’. Two points are pertinent:

First, why is it not a medical team that decides to abort an unborn child when there is an immediate risk to the mother’s life but only one medical practitioner carrying out the intervention? What is thus the relevance of the ‘medical team’? In this case, there is no involvement of the medical team even though an unborn child is aborted. Is human life really worthy to government? Human life continues to be treated despicably in an undignified and inhumane way as though to kill a human being is the societal norm.

Second, why is there no form of accountability introduced to ensure that the sole medical practitioner’s decision is not arbitrary, capricious, or biased? For instance, why is the medical practitioner not required to draw up a report and submit it to an Inquiring Magistrate, the Police, and the Attorney General, setting out the reasons, tests, and other circumstances that have led him or her to conclude to abort? For, strictly speaking, although the medical practitioner is saving the pregnant mother’s life, this is still done to the unique detriment of the unborn baby who ends up aborted? Why is no Magistrate involved to certify that all is done in terms of law bearing in mind that it is the fundamental right to life of a human being that is being destroyed?

There is, therefore, an inconsistency in the 23 June 2023 amendments in so far as life and health situations of the mother are concerned. In the case of the former (life), the assessment to abort the unborn child is made by only one medical practitioner. In the case of the latter (health), the assessment to abort the unborn child is made by a medical team of ‘three medical practitioners registered as specialists with the Medical Council under the Health Care Professions Act two of whom being obstetricians or gynaecologists one of whom being the obstetrician who carries out the intervention, and the third medical practitioner being a specialist in the condition from which the pregnant woman is suffering’. In the case of saving the mother’s life, the sole medical practitioner need not be registered as a specialist with the Medical Council under the Health Care Professions Act, nor be an obstetrician, nor be a gynaecologist, nor be a specialist in the condition from which the pregnant woman is suffering.

Article 243 proviso, paragraph (b)

Paragraph (b) of the proviso to article 243 reads as follows: ‘in the case of a medical intervention carried out due to a medical complication which places the health of a pregnant woman in grave jeopardy which may lead to death: (i) that in the reasonable opinion of the medical team the foetus has not reached the period of viability and cannot be delivered according to the standards of the medical profession; and (ii) that the medical intervention is carried out only after the medical team has confirmed the necessity of the intervention; and (iii) that the medical intervention is carried out in a licensed hospital having the facilities required for the necessary medical intervention to be carried out’.

First, the provision uses the term ‘can lead to death’ whilst paragraph (b) of the proviso uses the term ‘may lead to death’. This is found also in the Maltese text. There is no uniform drafting style used that leads to confusion. What is the difference at law between ‘can’ and ‘may’? Government’s amendments are silent on this point. Further, whilst ‘may’ is located in the proviso, ‘can’ is located in the initial part of the provision. So which term prevails?

Second, the term ‘health’ is not defined in relation to and distinct from ‘life’ even if it is stated that the mother’s health has to be put in grave jeopardy that can (or may) lead to death. Jeopardy is not the same as putting the mother’s life at risk and, furthermore, ‘can lead to death’ leaves the option open of ‘cannot lead to death’. It is not stated that there should be an acute likelihood or a serious possibility of leading to death. If it does not lead to death, then abortion can take place where there is a grave jeopardy to the mother’s heath. But health is not defined, for it can include in the WHO definition social health, mental health, etc. In these cases it does not necessarily mean that the health condition needs to procure an imminent danger of loss of life. Government’s loose wording is ambiguous and can give rise to different interpretations. Perhaps this is what government wants after all. This has also to be read also in the light of the words ‘period of viability, that is, ‘the point in a pregnancy at which the foetus is capable of living outside the uterus according to current medical practices’ that is allowing embryos and non-viable foetuses to be aborted if the above interpretation is followed.

Comments applicable to both paragraphs (a) and (b)

There are no details how the 3 medical specialists will be chosen, what are their terms of reference, whether the right to conscientious objection is specifically recognized and allowed by government’s amendments and how will it be implemented, whether the medical team’s decisions will be published in the Malta Government Gazette together with any minority reports / conscientious objections declarations for the purposes of transparency and statistics.

The three medical practitioners who will decide on aborting an innocent unborn child are not given, through law, any direction so as what are the circumstances where a woman’s health is considered to be in grave jeopardy that can lead to death. The medical team is left in the blind and they have to assume responsibility for their own decision, at their own risk, without any form of statutory guidance (more so if there are no written medical practices in Malta) to ensure that the medical practitioners do not end up in jail because of government’s incompetence in how the government’s amendments have been drafted. And yet government’s own spin was that these amendments are being proposed to make life easier for aborting doctors. Furthermore, these medical practices, if extant, should be published as a subsidiary law for public scrutiny and not left shrouded in secrecy and to the absolute unfettered discretion of one or a few persons to draft and change even capriciously or at their own will with no reviewing transparent and accountable mechanism.

Government’s amendments still continue – wrongly – to distinguish between termination of the unborn child’s life both when the pregnant mother’s life and health are concerned. Government allows abortion ‘in the case of a pregnant woman suffering from a medical complication which may put her life at immediate risk [and] the medical intervention is done when in the reasonable opinion of the medical practitioner carrying out the intervention the foetus has not reached the period of viability’. However, risk to life is one thing and ‘grave jeopardy that may lead to death’ is another thing. In other words, there are two criteria: a more burdensome one that applies to the situation when a mother’s life is at risk of death and a lesser one that can open the floodgates for abortion where only ‘an immediate risk’, not ‘grave jeopardy that may lead to death’ is the criterion that will be adopted. Hence, there is an inconsistency in this respect to the detriment of the human right to life of the innocent, vulnerable, unborn child.

The medical intervention has to take place in a licensed hospital. But government’s proposed amendments do not state in terms of which law, if any, reference is being made to and whether the term “hospital” applies also to a clinic as well. Once again the amendments are silent on this point. Key important terms such as “medical intervention”, “medical practitioner” and “medical complication” are undefined. What do these terms really mean? How will and should a court interpret them?

Kevin Aquilina is professor of Law at the Faculty of Laws of the University of Malta