- Dr Graziella Cricchiola
Abortion - The Law
by Dr Graziella Cricchiola - Associate
In recent years, almost every European Union member state has legalised abortion on request, or on broad social grounds. The term ‘abortion on request’ implies all those instances when abortion may be requested without any medical and/or other justifications. Poland and Malta are the only EU member states that uphold highly restrictive laws in relation to abortion. In this respect, Malta prohibits abortions under all circumstances whereas, Poland, allows abortions in cases of rape and incest.
Maltese legislation has always protected the rights of the unborn child. As a matter of fact, one of the functions of the Commissioner for Children is precisely “to promote special care and protection, including adequate legal protection, for children both before and after birth”.
Of relevance is article 241 of our Criminal Code which holds that if any person causes the miscarriage of a woman with a child, by any means whatsoever and irrespective of whether such woman consented or not, on conviction, the perpetrator would be liable to imprisonment for a term from eighteen months to three years. As the law stands, any woman who procures her own miscarriage, or consents for such miscarriage, is liable to the same punishment.
It is not surprising that the Maltese state, through legislation, offers this type of protection to all pregnant women. Interestingly, prior to the abolition of the capital punishment in Malta, government policies, by way of exception, provided that women liable to the capital punishment and pregnant at the time of sentencing or execution, enjoyed a reduced sentence.
It is worth mentioning that despite the aforementioned legislation, in a statement issued by the British Charity Abortion Support Network, a UK based charity, in 2021, 269 people from Malta have requested information, logistics and financial support to access abortion. Furthermore, according to recent news articles, between the year 2015 and 2020, the executive police investigated three people with regards to alleged abortions – although no one was arraigned in Court.
Nonetheless back in 2014, two women were found guilty of this criminal offence. One woman was sentenced to two years imprisonment which were suspended for four years, and the other woman was condemned to 18 months imprisonment, suspended for a period of three years.
This goes to show that notwithstanding that under Maltese law, aborting in Malta still constitutes a criminal offence, however several women are resorting to foreign countries to abort there. These scenarios lead us to a new legal conundrum: if the father of the unborn child becomes aware that the mother is planning to go abroad and terminate the pregnancy, what legal measures may the father resort to safeguard his parental rights?
Faced with this legal matter, the father may resort to the Maltese Civil Courts and file a warrant of prohibitory injunction to try prevent the pregnant woman from traveling abroad, as long as the father has sufficient evidence in hand to prove that the primary reason of travelling is to terminate the pregnancy.
This was the legal issue before our Courts in the case A vs B, decided by the Civil Court (Family Section) on the 25th September, 2020. In this case, the father filed a warrant of prohibitory injunction against his partner attempting to ban her from travelling and terminate the pregnancy. Upon hearing all parties involved and after giving particular consideration to the allegations made by the father, the Court decided that the plaintiff did not manage to prove that the main intention of the mother was to travel and terminate the pregnancy. Furthermore, it pointed out that in light of the fact that in Malta, abortion was and still is a criminal offence, plaintiff could file a police report if he had reasonable suspicion to believe that the mother intended to terminate the pregnancy.
Some may argue that the warrant of prohibitory injunction hinders the pregnant woman’s freedom of movement whilst others may contend that this legal measure safeguards the rights of the unborn child and the rights of the father and this in view of the fact that abortion in Malta is still a criminal offence.
The European Court of Human Rights has also proclaimed its views vis-à-vis abortion. The European Court, through various judgements, elucidated that one’s right to respect one’s private and family life is not absolute and such fundamental right should not be interpreted as giving each and every woman the right to terminate pregnancy. Nevertheless, the prohibition of abortion when sought for reasons of health and/or well‑being fell within the scope of the right to respect for one’s private life and accordingly of Article 8 and consequently safeguarded by the European Convention of Human Rights.
Dr Graziella Cricchiola is an Associate at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola at email@example.com.