Abortion ruling ‘not relevant’ to Malta
‘No suggestion of a right to abortion’
Malta’s strict anti-abortion laws will not be affected by the recent judgment of Europe’s supreme court relating to abortion in Ireland, according to a Maltese judge who sat on the case.
The European Court of Human Rights last week found that a sick woman’s human rights were breached when she sought an abortion in Ireland but was forced to go to the UK instead.
However, Judge Giovanni Bonello, one of the judges deciding on this case, told The Times the judgment had “no relevance at all” to Malta.
Although Ireland, like Malta, has strict anti-abortion laws, its Constitution allows abortion if the pregnancy puts the woman’s life in danger. It is this exception which the Strasbourg court had to evaluate because the woman claimed she was unable to obtain proper medical advice to terminate her pregnancy.
“The violation consisted in Ireland denying the woman a personal right guaranteed by the Constitution of her own country,” Judge Bonello said.
The case concerned a woman who underwent chemotherapy treatment for cancer. The cancer was in remission when she got pregnant. Before realising she was pregnant, the woman had undergone some tests contraindicated during pregnancy.
She feared the tests would have harmed the foetus and the cancer would reappear if she carried the baby to term.
According to Judge Bonello, the Irish state had not put in place any legal and practical structures through which a woman could actually make use of a legally recognised right to abortion if her life was in danger.
On the contrary, in Malta, he added, the law criminalised all forms of abortion, even those intending to terminate a pregnancy that threatened the life of the mother.
“The Strasbourg court did not have to face this issue and said absolutely nothing about it. Nothing has changed in so far as Malta is concerned,” Judge Bonello said.
Human rights lawyer Therese Comodini Cachia believes the difference in legislation between Malta and Ireland will make it very difficult for either the pro-life movement or those who favour abortion to use this judgment for their cause.
This has not stopped pro-life lobby group Gift of Life renewing its call for the Constitution to be changed to ensure the right to life is protected “from conception” so as to make it very difficult for abortion to ever be made legal at some point in the future.
As expected, the Strasbourg court’s judgment on such a sensitive issue created a media sensation. However, Judge Bonello lamented what he described as a “radical misinterpretation and distortion” of the judgment.
“Nowhere does the judgment suggest that there is a right to abortion, much less that abortion is a fundamental human right,” he said.
The judgment concerned three women, two of whom desired to have an abortion in Ireland for reasons of “well-being” but could not have it performed in the country. The third concerned the sick woman.
Irish law does not allow abortions for reasons of “well-being” and the court dismissed the request of the first two applicants.
Judge Bonello said the court decided the issue of abortion was one which involved “grave moral, ethical and religious considerations” and as a result an international court should not interfere with domestic regulation.
However, Dr Comodini Cachia said the European court’s decision on abortion cases involving women who had to terminate their pregnancy for health reasons did raise pertinent questions about the fate of Maltese women who may find themselves in similar circumstances.
“The message seems to be that even if there is a risk to her life the woman will not be given any assistance or even advice related to termination of pregnancy. Essentially her life is at risk and that is it,” Dr Comodini Cachia said, dreading the prospect of being a doctor who is faced with a situation of having his hands tied by the draconian law.
“While the State is provided with a lot of discretion as to issues of morality and values, yet one may wonder whether that same State would be fulfilling its obligations in respecting the life of the woman and the family life of her partner and other children where there is clear evidence that a pregnancy would jeopardise her life and health,” Dr Comodini Cachia said.
This conundrum has not been resolved by the European court and yet even if a case ever makes it to Strasbourg the outcome is anything but a straightforward decision.
Criminalising women, doctors
In Malta, abortion is a criminal act that punishes the woman and the doctor. There are no legal provisions that permit abortion if the woman’s life is in danger.
The criminal code states that anyone found guilty of inducing a miscarriage or consenting to an abortion faces a prison sentence of between 18 months and three years.
Doctors who perform an abortion or prescribe medicines to cause an abortion face a prison term of between 18 months and four years and perpetual interdiction from the profession.
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Mario Desira
Dec 21st 2010, 22:16
With government and laws like these who needs enemies?
Seems we are indeed living in a fundamentalist state where fundamentalism blinds people even to logic. So it is not ok to kill and abort a baby not even born, but quite ok to kill and abort a woman long after her birth. Are the ministers judges lawmakers bishops etc so willing to have their wives/mothers/sisters etc die? I bet they would fight tooth and claw to rip open loopholes in the law. Given the mediocrity of Maltese society, one should not be surprised people have not taken to protest in streets against such absurdities. Until a case would touch them personally that is..........the twisted logic of the law as it stands defies the very humanity it is supposed to protect.
Gerry Cowie
Dec 21st 2010, 19:13
Raymond Bezzina makes a fundementally important point here. If there is no danger to the life of either mother or baby why should not both have their right to life endorsed by law?
Simply because this is not just about danger to mother or unborn child. It is about the right to life versus the culture of death which continues to spread throughout the world; it is about the "freedom" and "rights" of the woman and her body, inside which the child develops, but which is not physically a part of her.
Even if a law were passed to allow abortion in certain prescribed circumstances it would never be enough for those who totally disrepect life under the guise of freedom!
Raymond Bezzina
Dec 21st 2010, 12:17
In the above article it is said that, quote " The European Court of Human Rights last week
found that a sick woman’s human rights were breached when she sought an abortion in
Ireland but was forced to go to the UK instead." Unquote.
Question ; Why dosn't the European Court of Human Rights speak about the right to human
life from moment of conception onwards, when the life of both the mother and the child
are not in danger, but it lets innocent and defencless children be mercilessly slaughtered
by abortion ? Why ?
By the above question it does not mean that I agree with the judgement which the
European Court of Human Rights took about the sick woman mentioned in the
newspaper's article.
Dr Andrew Azzopardi
Dec 21st 2010, 12:16
Let me clarify what Judge Bonello said. The Irish Constitution of 1937 as amended in 1983 does NOT permit abortion where the woman's life is in danger; in fact, it states that the unborn child's right to life is equal to mother's right to life.
The exception is the result of a judgement of the Irish Supreme Court delivered in 1992.
Dr EMMANUEL BEZZINA,LL.D.
Dec 21st 2010, 11:46
Our Constitution guarantees in Chapter IV THE RIGHT TO LIFE among other fundamental,individual RIGHTS;same does Chapter 319 of Malta`s Laws,alias the European Convention 1950 incorporated in 1987 into our Laws;equally the Charter of the EU Fundamental Rights as referred to by Article 6 of The Lisbon Treaty also ratified by our Maltese Parliament.So this important Judgement of The European Court in Strasbourg implies clearly that any woman whose life might be threatened or is in such danger has every right to demand an abortion.To conclude otherwise,irrespective of different political scenarios in the EU and other Council of Europe Members,would not seem that compatible.
Of course since in this tiny country of ours MAJORITY is a KEY reference [ when it best suits us ],it is well to know that the vast majority of Council of Europe Members as well as the vast majority of the EU Member States but for a mere three ( Malta included ),all have pro-choice Laws when it comes to Abortion at varying legal levels.The 17 Judges sitting in The Grand Chamber in Strasbourg last Thursday,December 16th,threw out two cases of three coming from Ireland,but confirmed the sanctity of a fundamental right .
Peter Murray
Dec 21st 2010, 10:51
What an absolutely preposterous and absurd situation this is.Surely the pivotal principle and over-riding objective of any government is to protect its people yet here we have no legislation whereby a termination of a pregnancy is ever permitted irrespective of the danger such action may present to the woman's life or well-being who is bearing the foetus.This ruling which the learned Maltese judge has declared has "no relevance" in Malta is based solely on Dickensian legal grounds and does not provide credence or recognition of a womans inalienable right to protect her health nor does it provide the assistance of her government to help procure such a fundamental right and freedom of choice,notwithsatnding moral or ethical grounds.Does such a ruling not also impact on the divorce debate ? As in when a woman(or a man in rare cases) suffers physical or mental abuse at the hands of their marriage partner which endangers their life?I am not advocating either abortion or divorce merely highlighting that blanket-coverage and intransigent laws do not allow for mitigating circumstances nor reflect proper protection of its citizens for when such issues arise.An omission which I venture to suggest is shameful and unconstitutional.
Edric Micallef Figallo
Dec 21st 2010, 11:56
"Does such a ruling not also impact on the divorce debate ? As in when a woman(or a man in rare cases) suffers physical or mental abuse at the hands of their marriage partner which endangers their life?"
No, it doesn't. This point is repeated ad nauseam even though it can be clearly be seen that legal separation caters for such a situation. The physical conviviality of married partners is what is needed to be ended in such a situation and legal separation provides that. This, notwithstanding criminal provisions in general and those relating to domestic violence in particular. Such a ruling has no legal or political bearing on divorce issues, at all.
Peter Korsten
Dec 21st 2010, 10:50
If this would really get into the Maltese constitution, it probably would go to the European Court, because, in case of danger of life to the mother, both the mother and child would have a constitutional "right to life".
And the result would likely be that, because if the mother dies, the child probably also dies, the amended Maltese constitution would breach the mother's human rights. And this would open the door for the right to an abortion under certain circumstances - exactly the opposite of what the amendment is trying to achieve.
A constitution is not meant to push a political agenda. Abortion is already illegal, parliament is against it, the vast majority of the population is against it. The current legislation suffices.
Edric Micallef Figallo
Dec 21st 2010, 12:03
Current legislation might not suffice, especially knowing fully well that Courts can often interpret the law in creative ways. Plus, any laws limiting abortion are emendable by a simple parliamentary majority.
Moreover, constitutions do involve political agendas, thinking otherwise is naive. Fundamental rights provisions are there because there was a political agenda to have them there, provisions on the flag are there because there was a political agenda supporting them (remember the George Cross on the flag debate?), article 2 on the religion of Malta is there because there is a political agenda for it, provisions on military non-allignment are there because there was one hell of a political agenda behind it, provisions on electoral majority being translated to a parliamentary majority are there because there was a highly controversial political agenda behind it, provisions on official languages are there because there was a political agenda behind it, provisions making Malta a Republic are there because there was a political agenda behind it. You name it, a constitution is a political document in the proper sense, par excellence. Its presumed political neutrality is a political and/or juristic fiction that doesn't stand to legal, political and historical analysis.
Peter Korsten
Dec 21st 2010, 14:46
But do you agree that, only because the right to life of the mother is not enshrined in the constitution, the current abortion law is actually possible? If you put the right to life in the constitution, you effectively open up a case at the European Court of Human Rights, because the mother has a right to life, and what if her life is threatened by the pregnancy? Then you have a choice between both mother and unborn child dying, or an abortion. I'm quite sure that the ECfHR would find the Maltese constitution lacking in such a case, just like it did with the Irish constitution.
T Camilleri
Dec 22nd 2010, 01:42
Peter Korsten for your information the ECHR does not have any competence to judge or decide on the Maltese Constitution.
Gerard Cassar
Dec 21st 2010, 10:49
What is the responsability of a doctor whose pregnant patient is found to risk not only her life but even that of the baby if no operation is carried out. Both the baby and the mother risk their lifes particularly that of the baby. It means that the phoetus is sure to die whatever the circumstance but tha mother may survive if an operation is carried out.
Such cases exist.. Is it not a sort of murder when the death of the baby cannot be avoided while the mother could be saved.
Charles Sammut
Dec 21st 2010, 12:25
Your logic is of course sound. But when religious fanaticism takes over, logic goes out of the window.
Ponder this:
Rape is a sin.
Using a condom is a sin.
Therefore, rape using a condom is twice as sinful.
The abandonment of logic is a prerequisite to religion. Especially the Catholic variety.
Raymond Sammut
Dec 21st 2010, 10:48
On the basis of what Judge Giovanni Bonello and Dr Comodini Cachia are reported to have stated in this report, there is an urgent need for the European court to resolve the issue of when the woman's life is in danger. In my view, the European court has a duty to intervene in order to ensure that all European countries have in place the legal and practical structures through which a woman could make use of a legally recognised right to abortion if her life was in danger.
Charles Sammut
Dec 21st 2010, 10:11
But in ultra Catholic Malta, those with money or connections can get abortions and divorces (annulments) on a whim, while those who cannot afford it, 'jikrepaw'.
I am in no way in favour of abortion as a means of contraception, but there are certain extenuating circumstances where it is the lesser of two (or more) evils.
Joe Grima Brussels
Dec 21st 2010, 12:07
As regards Maltese who can afford going abroad to have an abortion: call them Maltese, but they are not acting as 'ultra Catholics', apart from breaking the civil law!
As regards the difference between divorce and abortion, it has been explained many a time on these very pages, BUT IT IS MORE CONVENIENT TO SHOW IGNORANCE. If a marriage is null, you can get an annulment even from the courts, BUT IT IS CONVENIENT FOR YOU TO SAY THAT ANNULMENTS ARE AVAILABE ONLY FROM THE CHURCH. Or do you believe that divorce comes free?? It seems that many have a HUGE problem understanding the difference between divorce and annulment. Or probably dictionaries are that hard to locate!!!!
Charles Sammut
Dec 21st 2010, 14:30
@ Joe Grima Brussels
Explain to me how a man left a religious order, got married, got an annulment, remarried, got a second annulment and is poised to remarry someone half his age. As you may well imagine, this is not some ignorant oaf, on the contrary.
And you want us to believe that annulment is anything but divorce by a different name. However, as with other things in life, man/woman 'ci si arrangia' whether it is licit or not.
Joe Grim Brussels
Dec 21st 2010, 16:13
Dear Charles, if what you recount is a true fact, that an ex-religious did that, there is nothing to say! Everybody is responsible for HIS own actions, and being an ex-religious, he should know better! Some leading by example!!!! Although I'm not the one to judge!
Regarding your INSISTANCE that divorce and annulment are one and the same....that's YOUR problem. Some people DON'T WANT to learn the truth! If you don't want even to look it up in a dictionary, have it your way. But please, stop trying to teach us that they are one and the same! If you prefer to remain in darkness regarding this, go ahead, but don't try to mislead others.
a cordina
Dec 23rd 2010, 15:18
the truth is one..that of Joe Grima Brussels apparently
Michelle Attard
Dec 21st 2010, 09:50
"In Malta, abortion is a criminal act that punishes the woman and the doctor. There are no legal provisions that permit abortion if the woman’s life is in danger."
What is a woman supposed to do then, watch herself die day by day and maybe even watch her own foetus die? In this case, isn't it the woman whose human rights are not being respected? ?Doesn't the woman have a right to live too?
K Camilleri
Dec 21st 2010, 22:59
In Malta no. If, during pregnancy, a problem arises and the woman's health is at risk, her loved ones have to watch her die. Enjoy your day. It sounds stupid, but hey, we're talking about Maltese laws here so what do you expect?
Please choose the reason of your report below: