News • 20 July 2003

Women having abortions overseas would be committing a criminal act - AG

Kurt Sansone

Women seeking an abortion overseas may be liable to criminal prosecution under Maltese law according to the attorney general. This interpretation of the law flies in the face of accepted legal practice that contends abortion would constitute a criminal offence only if performed in Malta or in Maltese territory.

Attorney General Anthony Borg Barthet gave his verdict when asked by MaltaToday to comment on the legal status of the Dutch abortion ship if this were to visit the island.

The AG said that if the ship anchors just outside Maltese territorial waters, according to international law, it would fall under the jurisdiction of the state of the flag under which it is registered.

However, even though Dr Borg Barthet said the jurisdiction of Maltese courts is limited to Maltese territory, territorial waters and Maltese flagged vessels, he made an exception for abortion.

According to the AG: "The act of abortion and the giving of abortive pills would still constitute a criminal act as there is nothing in the criminal code that make it a constituent element of the crimes in question for the acts to take place in Malta.

"There is no constitutional prohibition for our laws to subsequently extend the jurisdiction of our courts to cover criminal acts previously committed abroad, though this is not normal."

A lawyer talking to MaltaToday said it would be a very long shot for anybody wanting to charge a woman with a criminal offence for having performed an abortion overseas.

The issue of abortion is also conditioned by a landmark decision handed down by the European Court of Human Rights in 1992.

The Court had established that a restraint order imposed by Irish authorities on two Irish clinics that provided information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland, amounted to a breach of freedom of expression as outlined in Article 10 of the Convention of Human Rights.

This means that it is not illegal if a clinic in Malta provides information about abortion services in other countries, or even makes the necessary overseas arrangements for Maltese pregnant women who request such abortions.

Malta has been a party to the European Convention for Human Rights since 1987 and it is also enshrined in the Constitution. Any decision handed down by the European Court has to be embodied in Maltese law.

The criminal code states that abortion is illegal and both the person performing the abortion as well as the woman on whom the abortion is administered would be liable to a prison sentence of between 18 months and three years.

The law does not lay down exceptions and there is a legal conundrum on whether an abortion could be legally performed to save the life of a pregnant woman.

Any doctor or medical professional found guilty of performing an abortion is liable to a prison sentence of between 18 months and four years and an indefinite prohibition from exercising his or her profession. kurt@maltamag.com