Care orders for unborn children raise human rights concerns

Human rights activists have expressed concern at comments by social welfare boss Alfred Grixti over care orders being placed on pregnant women to protect their unborn children.

Grixti, the CEO of the Foundation for Social Welfare Services, has told MaltaToday that child protection services have developed “a custom and practice” to protect unborn children from neglect by their mother if this neglect is deemed to be harmful to their health and proper development.

But it is unclear as to what powers can be used on pregnant women, and if this also restricts their movement in a bid to prevent them from procuring an abortion from a clinic overseas.

While Malta criminalises abortion, the use of judicial measures to prevent pregnant women from leaving the island has been a controversial matter.

Malta’s Care Orders Act empowers the authorities to issue a care order and take guardianship of children if “lack of care, protection or guidance is likely to cause the child or young person unnecessary suffering or seriously affect his health or proper development.”

But the definition of the child in this law does not expressly include an unborn child.

In a diatribe over last week’s march against femicide being promoted by the Women’s Rights Foundation, Grixti took exception at the WRF’s support for abortion, and said the FSWS used care orders to protect unborn children from neglect by expectant mothers.

FSWS chief executive Alfred Grixti

The FSWS chief executive this week told MaltaToday that child protection services investigate all cases of alleged abuse, including those of unborn children who might be at risk due to the lifestyle and choices that the mother might be making at that period in her life.

“In practice, what happens is that if an expectant mother continues to refuse to co-operate and continues to put her unborn child at risk due to persistent use of drugs or alcohol, the investigation – which would lead to a care order – is carried out during pregnancy by our Child Protection Services and such care orders are then served and enforced immediately upon the birth of the child.”

However, another law – the Child Protection (Alternative Care) Act – lays down a legal obligation for people to report pregnant women who cause suffering to their unborn child, and for the director of child welfare “to make arrangements... [as] necessary to support the woman and child… to keep the woman and the child together after the birth of the child, unless this is manifestly contrary to the safety and well-being of the child.”

But again, it is unclear whether this could include measures to restrict women’s actions and movements while pregnant. In 2010, then lawyer Toni Abela – today judge – was granted a controversial warrant to stop a pregnant woman from going abroad for an alleged abortion, on behalf of the unborn child’s father.

Grixti told MaltaToday that in 2018 alone Child Protection Services had 112 cases along these lines, with 108 resulting in the child remaining with their mother. However, in the remaining four cases, the mother was not deemed fit to look after her child, and the child was taken into care after birth.

These cases are usually flagged by medical professionals at Mater Dei Hospital, who refer mothers to the FSWS’s Benniena unit.

“The reality is that, thanks to this service, the majority of expectant mothers move in the right direction. However, there will be instances where this does not happen and, following a thorough investigation during pregnancy by our Child Protection Services, a decision for issuing a care order and serving it immediately upon birth is made and agreed to by all the professionals involved. There were four such cases this year.”

Surprise over ‘pregnant’ care orders

Human rights lawyer Neil Falzon, the director of Aditus Foundation, however, said he was surprised and concerned to hear that care orders were being issued on unborn children.

“This effectively means that a state entity is able to impose legal limits on what a pregnant woman is authorised to do. This is not about whether unborn children merit state protection or otherwise, but really about the fact that a woman’s body is not an incubator with the sole purpose of popping children, but a person entitled to respect for her dignity, privacy and independence.”

Falzon said it was not clear what criteria the FSWS relies on to assess whether a care order on an unborn child should be issued, and what limits these criteria impose of such intrusive actions.

“May the pregnant woman eat unhealthy food? Is she allowed to drink a glass of wine with dinner? Is she allowed to work, drive or exert herself?

“Furthermore, the measures have the potential of being discriminatory since they seem to exclusively target the pregnant woman and not other persons who could potentially damage the unborn child. For example, what if the woman’s partner smokes in her presence? Will the Agency intervene?”

Lawyer Lara Dimitrijevic, of the Woman’s Rights Foundation, also seemed to express surprise at the use of care orders for unborn children. “This is beyond the fundamental right of the person, in this case being a woman.”

FSWS boss outburst

Grixti was criticised last week by the Women’s Rights Foundations for “victim-blaming” women who found it difficult to exit relationships of domestic violence.

Grixti also took exception at the WRF’s promotion of the march against femicide last week, citing the group’s support for women’s reproduction rights as being incompatible with the protection of vulnerable people.

“We are legally responsible for the safeguarding of children, because they are the most vulnerable. We have often placed care orders on children that are not yet born, especially in cases of drug abuse. As a national agency we cannot be shoulder to shoulder with who is in favour of abortion… when a pregnant woman is killed, it is indeed a double murder.”

Grixti complained with MaltaToday that activists may have given the impression that the FSWS was not protecting women well enough.

“Like any organisation which is not happy to remain in its comfort zone we could always do with more financing to increase our services even further but to give the false impression that next to nothing is being done is blatantly unfair .... primarily because it discourages more people from joining the social care professions at a time when our biggest challenge is to find more human resources to work in a very delicate and sensitive sector.”