Domestic violence and the unborn child

The Domestic Violence Bill, now before Parliament, does not seem to make provision for the protection of the unborn child from acts of violence in the family or, as the Bill refers to it, "the household".

Section 2 of the Bill defines domestic violence as "...any act of violence, even if only verbal, perpetrated by a household member upon another household member". One notes the words "any" act of violence by "a household member" upon "another household member".

It then says, in section 2 iv, that a "household member" includes, among other persons, "parents and their children". Yet, it does not qualify the word children "before and after birth" as section 9 h of the law setting up the Commissioner for Children does. Surely the unborn child is a "household member" but he/she does not seem to be recognised as such in the proposed law... so far.

Or are the provisions in other laws, like the Commissioner for Children Act of 2003, the law on abortion of more than 100 years ago and, specifically, section 244 in that law, or the impending The Protection of the Embryo Act to apply also to this new law, even if not already and clearly stated?

However, it is generally recognised that Maltese law does not contain, yet, a definition of a child before birth inspire of legislation on the prohibition of abortion of so many years ago.

Can the parents perform "acts of violence" on the unborn child? Of course they can.

The most obvious act of violence is abortion. It is not only an act of violence, by one or both parents, which harms the unborn child. It is an act of violence which tortures and kills the child.

And yet the punishment for this very serious act of violence is rather mute. Up to three years in prison. In the case of murder, that is the deliberate killing of any other human person, it can be life in prison. Surely the killing of an unborn child is as grave as that of a born child, a young person, an adult or an elderly person.

Unborn children, as members of households, can also be the direct victims, in all respects, of acts of violence committed by other household members against the pregnant mother, herself another member of the same household.

In fact, as stated in Parliament during the present debate on this proposed law, in a study in Malta of 339 pregnant women 11.7 per cent, or 39 of them, were violently attacked by their husbands. The study was conducted in 2001.

One can imagine the pain and the harm, of all descriptions, which was inflicted on the 39, or more, unborn children. Besides the potential direct physical injury to these children there must have been also the psychological harm caused by the anxiety and stress transmitted to them by their highly distraught, anxious, stressed and fearful pregnant mothers.

This quality harm was so vividly described and examined in Malta by foreign and local experts in this field in the national conference on The Importance Of Prenatal Environmental Influences For Stress, Health And Well-Being Of The Unborn Child, held in December 2004 by the Malta Union of Professional Psychologists, one of the 40 organisations in the Movement for the Rights, Protection and Development of the Unborn Child.

Besides the act of violence which goes in the killing of the unborn child parents can also cause grievous bodily harm to their unborn child by the consumption of drugs, alcohol and tobacco immediately before and especially during pregnancy.

Family and Social Solidarity Minister Dolores Cristina told Parliament in March that last year 14 children were born to female drug addicts. These children are known to be addicted to drugs at birth and are put on methadone for some months after birth.

The minister added that also last year, 1,047 people, mostly young people, had attended Sedqa's detoxification centre.

Similarly, at a national conference on the Well-Being Of The Unborn Child held in February this year by the Movement for the Rights, Protection and Development of the Unborn Child, Health Minister Louis Deguara expressed his preoccupation at the fact that according to a survey on the Health Behaviour of School-Aged Children, held recently in Malta and in many other European countries and the US, Maltese teenagers, males and females, figured at the top as spirit and wine drinkers. In this context he drew attention to the possibility of children being born with foetal alcohol syndrome.

At the same conference Dr Deguara also spoke about the harmful effects of smoking and passive smoking on the unborn child.

This harm to unborn children can be done because of ignorance, carelessness or outright callousness. In any case it is always bodily harm, and most likely grievous and permanent physical, mental and emotional harm as physicians, psychiatrists and psychologists can testify. Downright cruelty and sadism cannot be excluded from "household members" with psychopathic tendencies or characteristics.

Irrespective of the degree of guilt of the parents, the unborn child is invariably the innocent, voiceless, helpless and powerless victim of an act of violence by a member, or members, of his household and therefore needs protection, including of the legal kind. This is mentioned in the Commissioner for Children Act but it seems that this function of the commissioner is meant to operate more at the promotional level than at the real and actual level.

Therefore, who is going to protect unborn children from these acts of violence by such significant members of their household... and how?

If the proposed law on domestic violence provides also for the protection of unborn children, a "treatment order" for drug takers, drinkers and smokers, contemplated in section 19 of the proposed law, can be the answer.

"In the best interests of the child", as advocated by the United Nations Convention on the Rights of the Child, professionals in the field can surely declare that a woman is pregnant and that she is a habitual drinker, smoker or drug taker. These professionals should be empowered by law to make such declarations without the consent, written or otherwise, of the pregnant woman to the proposed Commission on Domestic Violence, especially in terms of section 4 (i) and (j) of the new law.

In this respect the legal position of the father can be very elusive. On the other hand, persistent smoking by any household member in the presence of the pregnant mother is something that can be measured (by her) and controlled, even by law, this time, perhaps, by a "protection order" contemplated also in the new draft law.

Maltese society has to be very proactive to really protect unborn children as of right and in all circumstances.

Surely the latest repeated statistics show that the Maltese people believe strongly that all human lives, including the lives of unborn children, are the same and so deserve not only protection from harm to life and limb but also respect to their dignity, regard to their needs and the provision of all the opportunities for wholesome development, from the moment of conception till natural death.

moranja@maltanet.net