Updated | Ministry questions logic behind Health Commissioner’s gratuitous abortion comments

The Health Commissioner in the Ombudsman's office said it was unacceptable for the health department to state that the unborn child was not a person at law

The Health Ministry said it could not understand what led the Ombudsman to link the case under investigation to abortion
The Health Ministry said it could not understand what led the Ombudsman to link the case under investigation to abortion

A gratuitous reference to abortion in the case notes tabled by the Ombudsman yesterday has raised eyebrows with the health ministry questioning the logic behind the Health Commissioner's reasoning when the case involved treatment of an unborn child.

In a statement released on Thursday, the health ministry questioned how an incident in which the life of an unborn child was saved was conflated with abortion.

“The facts are that the health department intervened to save the life of a yet unborn child by facilitating, organising and paying for treatment abroad. How, saving a newborn’s life can by any stretch of the imagination lead the Commissioner for Health to link this episode to a discussion on abortion, which is the exact opposite of saving a life, escapes comprehensibility,” read the statement.

The ministry said the health department "did not have any policy which favours abortion".

Health Commissioner’s investigation

The case concerns an incident investigated by the Ombudsman's office of a complaint made by parents of a then unborn child.

Over the course of the mother’s pregnancy, the child was diagnosed with a condition that needed to be operated abroad immediately after birth.

The woman was referred to a hospital in the United Kingdom by the Department of Health.

According to the Office of the Ombudsman, before departing for the UK, the parents were told by the department that it could not pay for their airfares under a policy entitling parents of children under 18 who need treatment abroad to have their fare covered by the department.

The reason for this was that at the time that the parents left for the UK, the child was as yet unborn.

Upon receiving the complaint, the Commissioner for Health Charles Messina said he took the case up with the department, which initially agreed to pay the parents return flights for both the parents and the child.

The commissioner also recommended that the parents be reimbursed for the outward flight, but was told by the department that “a baby in utero is not recognised as a person at law”.

The Health Commissioner responded to this by saying: "if a baby in utero is not recognised as a person at law, why does the Ministry for Health send mothers whose babies needed to be operated whilst still in the womb and then the mother returns to deliver her baby in Malta?"

"If the baby in utero is not recognised as a person at law on what does the surgeon operate?” insisted the commissioner. 

The commissioner’s recommendation was eventually accepted by the department which agreed to pay both flights.

Case’s link to abortion

In discussing the “outcome” of the case, the commissioner said that the department's “categoric” statement about the unborn child was “unacceptable, not only because it opens up the entire contested issue of whether the human foetus has a right to protection of law, but also because it prejudges and compromises the ongoing debate on whether abortion should or should not be entertained at any stage”.

The commissioner goes on to say that “the statement goes well beyond what various strata of the political spectrum have stated to be their stand on the matter”.

Moreover, reference is made to a 2015 civil court judgment “which shows that an unborn baby has its rights and that once conceived he/she is not an object but a person".

The judgment, according to the commissioner, ran “counter to the statement made by the Department of Health to the effect that the human foetus does not enjoy any rights”.

“It has to be kept in mind that this judgment was delivered in 2015, i.e. before the public debate on the introduction of abortion had taken ground, and before the legislation allowing for the freezing of embryos came into force,” the commissioner wrote.

 “It is therefore perfectly possible for a human foetus to be endowed with rights when still in utero, even though these rights can only be exercised after it is born and viable, or even before being born, by someone on its behalf.”

What the judgment says

The 2015 judgment related to a case in which the partner and child of a man who had been killed in a Paceville fight had sought damages from the man’s killer.  

The woman was pregnant with the man’s child at the time of his death and his killer had argued neither the woman nor the child could claim damages because neither of the two were entitled to inherit the man at the time of his death. The woman was not married to the man, and the child had not yet been born.

The court had found that the child should inherit the father and therefore sue for damages, noting that Maltese law recognised the unborn child’s juridical ability to inherit.

“In this case, the harmful event, the death of the father took place when the child was still in the womb, damages were triggered upon the child’s birth and therefore the moment he acquired juridical capacity.”

Rights of unborn child need to be strengthened – PN

In a reaction to the Ombudsman’s report, the Nationalist Party said the case was confirmation of the importance of the country initiating a process “to further recognise, protect and strengthen the legal rights of the unborn child in order for there not be any room for doubt about its legal status”.  

The PN’s spokesperson fro the rights of the unborn child Claudio Grech said that the fact that the authorities had “cast doubt about whether the unborn child is a person reflected the need for these clarifications to be included in the respective laws in order to assure that this incorrect interpretation does not repeat itself”.

“Given that it is accepted by everyone that life begins at conception, the unborn child has its rights established and they should therefore be safeguarded,” Grech said.

The statement added that the PN welcomed statements by President George Vella “regarding the value of life”.

“The Nationalist Party believes that now that it is clear that there is no room for abortion in our country, there is a need for political parties and social partners to work in the spirit of consensus for this aim to be enshrined in a legal framework that would make our country a model EU member state where the unborn child is given the respect and dignity it deserves,” Grech said.

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