Christopher Barbara

In response to the public invitation to make suggestions relevant to the upcoming Constitutional reform, we are writing this letter to convey our suggestions as the non-governmental organisation Doctors for Choice (VO/1816).

The mission of our organisation is to advocate for comprehensive sexual and reproductive healthcare that is safe, equitable, and accessible. Our position, as well as that of reputable international medical organisations including the World Health Organisation and the Royal College of Obstetricians and Gynaecologists, is that abortion care forms an integral and indispensable part of sexual and reproductive healthcare.

Chapter 9 of the Criminal Code of Malta, Sub-title VII contemplates criminal sanctions on women who have abortions, and medical staff involved in provision of abortion services in Malta, in any and all contexts, including situations in which intervention would serve to preserve maternal life.

We believe that the laws of Malta should be reformed in line with the guidance of the Royal College of Obstetricians and Gynaecologists and more recently the Royal College of General Practitioners, which state that abortion care should no longer be treated as a matter of criminal law, but regulated in the same manner as any other medical or surgical procedure. Furthermore, criminalisation of seeking abortion, or of the provision of abortion services by medical staff, has been specifically condemned in the United Nations Human Rights Committee’s General Comment on the Right to Life (2018).

We would also like to bring to your attention the following international instruments that pertain to internationally recognised fundamental human rights, with which Malta’s current legal framework is clearly incompatible:

• The United Nations Declaration of Human Rights (1948) – The ‘Right to Life’ cited in Article 3. The right to life incorporates access to abortion services.
• The United Nations Convention on the Rights of the Child (1989) – The ‘Right to Life’ cited in Article 6. The right to life incorporates access to abortion services.
• The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1979) – The right of access to healthcare inclusive of reproductive and family planning services is quoted in Article 12.
• The United Nations International Covenant on Economic, Social and Cultural Rights (1966) – Article 12 refers to ‘enjoyment of the highest attainable standard of physical and mental health.’

We understand that the Malta’s Criminal Code may not be directly relevant to Constitutional reform, however we are aware that suggestions have been made to amend Article 33 of the Constitution, which protects the right to life, to include life “from conception.” This is clearly aimed to extinguish the emerging public debate on the legal status of abortion in Malta, which is fundamentally anti-democratic. Furthermore, any entrenchment of the ban on abortion would take Malta further away from international norms and standards on the interpretation of the “right to life.”

We are also very concerned about the effects a Constitutional inclusion of a “right to life from conception” would have on sexual and reproductive healthcare in Malta, not just pertaining to the possible provision of abortion services in the future, but also to other important services such as assisted reproductive technologies.

A Constitutional “right to life from conception” is likely to call into question the legality of in-vitro fertilisation (IVF) and the recent amendments to the law that allowed for more routine embryo freezing and made the procedure safer for women by limiting the number of embryos implanted. It would also prohibit Malta from commissioning advances to IVF technology such as Pre-Implantation Genetic Diagnosis (PGD), which would benefit people with specific genetic disorders. We believe that any legal hindrance or regression in this important field of medicine would be a great disservice to those who require medical assistance for infertility.

For these reasons, we are of the opinion that an extension of the right to life to include life “from conception” should not be accepted during the Constitutional Reform process.

We thank you for considering our suggestions and opinions, and we hope that the Constitutional Reform will be a fruitful exercise that will strengthen Malta’s position as a modern European democracy.