[WATCH] Abortion for health reasons only if woman risks death in new government proposal

In short: New abortion amendments to Bill 28

• Abortion will be allowed if a woman’s life is at ‘immediate risk’

• Abortion will be allowed if a woman’s health is in ‘grave jeopardy which can lead to death’

• Three-member medical team will decide on termination

• If foetus can live outside the womb it has to be delivered

Doctors will be able to terminate a pregnancy if a woman’s health is in grave jeopardy but only if the medical condition could lead to her death.

This is the gist of a government proposal to amend its own Bill 28 introduced in parliament last year to allow abortion if a woman’s life and health is in danger.

The health aspect has now been restricted to medical circumstances that “can lead to death”, excluding situations where the pregnancy could cause the woman severe disability but not necessarily lead to death.

It also limits the possibility of an abortion taking place for mental health reasons unless the complication could lead to death.

The new proposal was unveiled on Friday morning by Health Minister Chris Fearne and Justice Minister Jonathan Attard.

But while government can claim some form of consensus was reached to allay fears that the original proposal would have led to abuse, for those in the pro-choice camp the new proposals represent a climb down from what had already been considered the bare minimum necessary to soften Malta’s strict anti-abortion law.

Malta is the only EU country to have an outright ban on abortion with no exceptions. A woman who has an abortion and doctors risk prison if convicted. The changes will for the first time introduce exceptions related to the woman’s life and health.

Another significant change in the new amendments is the introduction of foetus viability, which was absent from the original draft. This is defined as “the point in a pregnancy at which the foetus is capable of living outside the uterus according to current medical practices”.

The law will specifically prevent doctors from terminating a pregnancy if current medical practice deems the foetus to be viable. In this case, doctors will first have to deliver the baby before any medical intervention is carried out to treat the woman.

This responds to concerns raised by anti-abortion activists that the original law could potentially allow late term abortions to take place.

The new amendment also introduces the concept of a medical team that will decide on pregnancy terminations. The medical team would be composed of two gynaecologists or obstetricians, one of who will be the professional to carry out the termination, and a third specialist in the field related to the health issue affecting the woman.

The changes come after several discussions the government had with different stakeholders after the original Bill 28 had been approved at Second Reading stage in parliament last December.

The new changes will be put forward for consideration at committee stage, which government hopes will be held sometime next week.

Attard and Fearne said the new changes address the fears expressed by some that the original proposal was opening the door for abuse.

The abortion amendments last year were presented after the case of an American woman who started miscarrying was denied an abortion despite being told her pregnancy was not viable.

Doctors had refused to terminate the pregnancy because of the strict law banning abortion even though the woman risked developing sepsis, a potentially life-threatening condition.

Government had argued that doctors were not legally covered to intervene in such cases if the treatment meant terminating the pregnancy.

Hundreds of Maltese women every year have an abortion either by travelling overseas or ordering pills online and self-medicating at the risk of being prosecuted.

Only recently, a woman was prosecuted for performing a medical abortion. She pleaded guilty but given the fact that she was living in an abusive relationship and suffered from mental illness, the magistrate handed down a conditional discharge.

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The wording of the law: How has it changed?

Changes are indicated in bold.

Original Bill 28 presented in November 2022

Exceptions to articles 241(2) and 243.

243B. No offence under article 241(2) or article 243 shall be committed when the termination of a pregnancy results from a medical intervention aimed at protecting the health of a pregnant woman suffering from a medical complication which may put her life at risk or her health in grave jeopardy.".

New Bill 28 presented in June 2023

Exceptions to articles 241(2) and 243.

243B. No offence under sub-article (2) of article 241 or article 243 shall be committed when the cessation of a pregnancy or damage to the foetus results from a medical intervention carried out for the purpose of saving the life and protecting the health of a pregnant woman suffering from a medical complication which may put her life at immediate risk or her health in grave jeopardy which can lead to death:

Provided that the exemption from criminal responsibility by virtue of this article shall apply only when after having considered the medical practices current in Malta circumstances of necessity still subsist which dictate that the medical intervention be carried out and if the following conditions are fulfilled:

(a) 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;

Or

(b) 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;

(c) For the purposes of this article:

“medical team” means 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;

“period of viability” means the point in a pregnancy at which the foetus is capable of living outside the uterus according to current medical practices.” 

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New amendment allows abortion in cases beyond immediate death, Chris Fearne says

Abortion in the new amendment will not only be allowed in cases of immediate death risk, Health Minister Chris Fearne said on Friday.

Replying to questions by this newspaper, Fearne explained that the "eventual death" of a mother - example a mother who can survive giving birth but would eventually pass away - will be discussed within a medical team.

The team is composed of three medical practitioners, two of whom are obstetricians or gynecologists, with one of them being the obstetrician who would carry out the intervention. The third medical practitioner must be a specialist in the condition from which the pregnant woman is suffering.

"Whatever the condition may be, it will undergo this process," the Justice Minister added to Fearne's statement.

Fearne told MaltaToday that the government did not exclude mental health.

However, irrespective of the condition, he further explained, "alternate treatments, if available in Malta, must be considered as a priority before considering termination," concluded Fearne.

The Deputy Prime Minister disagreed that the proposed amendments are a step back from what was initially proposed, reiterating that current laws only prevent medical professionals from intervening to save a woman's life in critical situations.

Additional reporting Marianna Calleja