Ruth Farrugia, advocate and senior lecturer, Faculty of Laws, University of Malta, Msida
Advancing children's rights
I appreciate Tony Mifsud's commitment to the protection of children (born or to be born) but always thought we were on the same side - together in advancing the rights of children, preferably within the family.
Mr Mifsud raises a number of issues off tangent but takes exception to two main points in my contribution about policing pregnancy.
1. He quotes: "A legal duty to guarantee the mental and physical health of a child in the womb has never before been recognised in law" and then goes on to cite the Persiano case which was about protection of life not a "guarantee" to physical and mental health. Perhaps he misunderstood the distinction I made.
2. Care orders are issued for children in need of care and protection. With all respect, I am also quite conversant with the care orders system and for Mr Mifsud to simply state that 250 children have been placed under a care order does not address the issue at all. My point was that during 2009 at least 36 of these children were living at home and may not have been receiving appropriate care. If the present system cannot cope why propose burdening it still further?
I am unclear on the exact context of the use of breathalysers to the argument, but Mr Mifsud cites the recent proposed amendments which will apply to all drivers.
Is he advocating that the results be used against pregnant women to penalise them additionally for potential harm to the unborn child?
Will any driver over the limit be additionally penalised where pregnant women are involved?
Here is a tangent of my own: Our Criminal Code sets nine months to nine years as a penalty for grievous bodily harm if, being committed on a woman with child, it causes miscarriage [art. 218(1) (c)] but the means to procure miscarriage leading to grievous bodily harm is diminished by one to three degrees [art. 242]. Procurement of miscarriage carries a penalty of 18 months to three years [art. 241] while the surgeon, physician, obstetrician, apothecary who knowingly prescribes or administers means for miscarriage may be sentenced to 18 months to four years and perpetual interdiction [art. 243].
If the unborn child is truly accorded full personhood prior to birth then why have no attempts been made to acknow-ledge this in the Criminal Code?
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Mifsud Tony
Feb 25th 2010, 19:40
@ Dr Farrugia Yes, we are on the same side. My reference to care orders was meant to show that there are parents who are “not competent” to take proper care of there children. The explanation about care orders was not necessary but one about the “guaranatee” would have been in order. Both agree that a treatment order, not necessarily a care order, should be tried to protect an unborn child from harm to life and limb by substance abuse during pregnancy. I am not interested at all in seeing any pregnant mother punished. My reference to the breathalyser, again, is simply to show that there are limits also “to the rights of women to self-determination and autonomy of their own bodies.” If self-control is not applied, by anybody, whether during drink-driving, or by substance abuse during pregancy, all people in the streets and unborn children in their mothers’ wombs have a right for effective protection, including legal protection. In another issue concerning unborn children, some years back, a section of the medical profession had alleged forcefully: “babies are dying like flies”.