Independent MP Marlene Farrugia rocked the nation when in Parliament she tabled a Bill to decriminalise abortion.
The issue is in many respects Malta’s last remaining major taboo subject, so much so that politicians from both sides of the political divide won’t touch it with a barge pole.
Farrugia’s Bill proposes changes to provisions in the Criminal Code that make abortion or assisting in an abortion illegal, and this includes any doctor informing their patient that abortion is an option.
What does the current law say about abortions in Malta?
Abortion is illegal in Malta in terms of Articles 241 – 243A of the Criminal Code.
Article 241 states that anyone who in any way causes a woman to miscarry is guilty of a crime punishable by no less than 18 months in prison.
This also applies to women who cause their own miscarriages.
Moreover, if in the process of carrying out an abortion, the woman dies or is seriously injured, the person carrying out the abortion will be liable to the same punishment applicable to willful homicide or wilful bodily harm, as per Article 242.
The next provision of the Criminal Code that relates to abortion is 243, which specifically criminalises medical professionals if they prescribe or administer abortive medication.
Those found guilty of doing so face a prison sentence of between 18 months and four years as well as the loss of their license to practice.
The final provision of the law that deals with abortion, Article 243A, covers instances where a woman miscarries as a result of someone else’s negligence, including by professionals. This carries a prison term of up to six months or a fine of €2,300.
What is the Bill proposing?
The Bill proposes repealing all of these provisions and replacing them with a clause criminalising forced abortion, meaning instances where abortion is carried out without the woman’s full and informed consent.
This is ironic considering the fact that in 2018, Farrugia’s PD had voiced reservations about the Gender-Based Violence and Domestic Violence Act, on the basis of a similar clause about forced abortion and forced sterilization, which the party had claimed would open the door to the decriminalisation of abortion.
In fact, Farrugia tabling such a Bill was unexpected, given her past positions against abortion. Farrugia had also opposed the introduction of the morning-after pill.
What about that final note?
The Bill also includes a ‘Reasons and Objectives’ section at the bottom which states the following:
“The purpose of this Bill is to ensure that no persons or medical professionals are criminalized for choices pertaining to their medical health and/or the provision of medical assistance in order to safeguard it. It is further noted that culpable negligence as expounded in Article 243A is already covered by articles dealing with involuntary homicide and bodily harm as found in Article 225 and 226 of the Criminal Code.”
The latter part of this note basically states that miscarriages resulting from negligence would still be criminal offences in terms of the law under Articles 225 and 226, regarding involuntary homicide and involuntary bodily harm.
It would seem that whoever drafted the Bill is suggesting that there need not be any provision in the law covering the termination of a pregnancy through negligence, since this is already catered for.
The note also caught the eye of Labour activist Desiree Attard, who in a Facebook post warned about the dangers of “conservatives bearing gifts”.
According to Attard, this sets “an incredibly dangerous precedent, implying that abortion and homicide are one and the same”.
So what next?
Whether or not the proposals will find the support of the population remains to be seen. Surveys have shown that the Maltese population remains strongly against abortion, though this is changing among the younger generations.
An online poll on Lovin Malta’s Facebook page currently has the number of people in favour of the Bill at roughly 1,500 people, with some 500 against.
It must be said that a Bill being tabled in Parliament doesn’t necessarily mean that it will become law.
In fact, with both sides of the House very openly against the introduction of abortion, the likelihood is that the Bill will not receive the required support to make it through to the next stage of the legislative process.
But while politicians’ gut instinct might be to play it safe the truth is that the issue can’t be avoided forever, and this Bill could provide an opportunity for MPs to improve people’s lives, without being accused of legalising abortion.
In its current form, the Bill does not propose to legalise abortion and if it were to be introduced, this would not mean that one would be able to get an abortion in Malta.
More importantly, it removes an absurd part of our laws that criminalise something we know for a fact occurs regularly in Malta and one that is recognised by every respectable health institution as being an essential medical procedure.
Both these factors should in theory make the discussion easier for Malta’s politicians, but we’ll have to wait and see how the two parties react.
Irrespective of their reaction, however, the Bill will hopefully lead to a much-needed national debate on the subject.
The ball is now in Parliament’s court.
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