Abortion change that preserved the status quo | Neil Muscat

In the past months, Malta has witnessed the diluted version of Bill 28 (the ‘Diluted Amendment’) (Act XXII of 2023) signed into law by the President.

Prime Minister Robert Abela had touted the former Criminal Code amendment (the ‘Original Amendment’) as a way to protect women's lives and health, saying these principles were ‘non-negotiable'.

Apart from being well received by those within Malta who believe pregnant women should not be left to die with an unviable pregnancy, the Original Amendment was also commended by the Human Rights Commissioner of the Council of Europe.

The Original Amendment was proposed in reaction to the constitutional case brought against the Health Minister by Andrea Prudente, an American woman holidaying in Malta who sought an abortion but was denied access to it.

At week 16 of her pregnancy, Prudente suffered a complication known as PPROM (pre-term premature rupture of membranes), where her waters broke early, and her pregnancy was no longer viable. Despite the acute vulnerability to haemorrhage and infection, Prudente was still denied an abortion. She was then medically evacuated to Spain for the life-saving treatment. In her court application, Prudente argued Malta’s rigid abortion laws amounted to a violation of the Constitution and the European Convention on Human Rights.

Bill 28 set out to amend the Criminal Code to allow an abortion if a woman’s life or health were to be threatened by the pregnancy. The latter idea did not sit well with anti-choice circles, who claimed mental health would be dishonestly used as a pretext for legalising abortion through the back-door. This argument inadvertently reveals an underlying mistrust in women's capacity for self-determination, and simultaneously highlights the trivial role occupied by mental health in any serious Maltese debate.

In stark contrast, the Diluted Amendment limits the scope of who may access the necessary treatment, since it requires that the life or health of the patient must be ‘in grave jeopardy which may lead to death’. This change means there is no substantive reform to protect pregnant women's health and lives. Maltese gynaecologists have already stated that the Diluted Amendment would probably mean that Andrea would still be refused life-saving treatment. For Prudente to meet the contemporary criteria, she would have to go on to develop sepsis and become seriously ill.

Furthermore, under the new legislation, access to an abortion that can save the woman from serious harm to her health which may lead to death, can only be provided once three doctors on the specialist registry approve of it. Apart from introducing cruel unnecessary delays, and even endangering a woman’s life further, the new clause assumes one of two things: It either implies that Maltese specialists are incompetent at making clinical judgements independently, or that they simply cannot be trusted to act alone despite several years of intensive training and passing objective college membership examinations.

While the enacted changes afford medical professionals a degree of legal protection against criminal prosecution, no substantial advances have been made to safeguard pregnant people’s health and well-being.

The tragic death of Dorota Lalik, 33, in Poland serves as a sobering reminder of the repercussions of poor health standards. Dorota suffered the common complication of PPROM at five months of pregnancy, followed by a preventable death from sepsis just three days later.

Polish law permits for termination of pregnancy in cases of rape, incest and if the woman’s ‘health or life’ are in danger. This is a relatively liberal law compared to the Maltese counterpart, which does not allow termination of pregnancy in cases of rape or incest. The Polish version also specifically intends to protect both life and health like the forsaken version of Malta’s Bill 28.

Despite operating under a ‘liberalised’ version of our current law and a comparative element of Catholic conservative structuralism, doctors in Poland still refused to undertake a legal abortion, resulting in the young woman’s death. Polish physicians have been practising under the constant threat of imprisonment for performing an abortion too early; an issue that draws parallels to the Maltese situation.

A way forward

With a record number of medical abortion pills being sent to Malta in 2022, it is clear that the regressive Criminal Code amendment does nothing to improve the bleak state of national reproductive health standards.

It is also hoped that the apparent bias evidenced by the Malta College of Obstetricians and Gynaecologists comes to an end. In their reaction to the proposed amendment, they incorrectly refer to the unborn foetus as a ‘child’ and make ominous references to the ‘perceived’ right to abortion. Reproductive medicine in Malta must be released from subjectivist moral and religious custody before it can take its place amongst other evidence-based medical specialties. It must start endorsing researched guidelines set out by governing bodies such as the Royal College of Obstetricians and Gynaecologists.

Women seeking support can find evidence-based information regarding abortion through Doctors for Choice, whilst pregnant people experiencing complications can discuss abortion options through the Abortion Doula Support Service on +356 20341683 or +356 27782758.