Abortion in Malta
Abortion in Malta is illegal and constitutes a criminal offence in all circumstances.
Unlike other member states of the European Union (EU), including the predominantly catholic, Malta bans abortion also in those cases when the woman’s life or health is endangered by the continuation of pregnancy, when the pregnancy is a result of a criminal act such as rape or incest, and when the foetus is seriously malformed. By comparison, Ireland permits abortion in those cases when the woman’s life or health is at risk, including the risk of suicide, whereas in Poland , abortion is permitted in all three above-mentioned circumstances.BBC news (12 February 2007). “Europe’s abortion rules”. Retrieved 26 July 2012.
Table of Contents
- 1 Maltese Law
- 2 Public opinion and internal politics
- 3 Statistics
- 4 Malta’s position in multilateral organisations
- 5 See also
- 6 References
- 7 External links
Current laws against abortion are codified in the Criminal Code of 1854 (Chapter 9 of the Laws of Malta)“Chapter 9 of the Laws of Malta” (last amended 2009). Retrieved 26 July 2012. under the title “Of Abortion, and of the Administering or Supplying of Substances Poisonous or Injurious to Health”, Articles 241 to 243A.
Article 241 states that whoever causes the miscarriage of a woman with a child, whether the woman is consenting or not, shall, on conviction, be liable to imprisonment for a term from 18 months to three years. The same applies to a woman who procures her own miscarriage. The section was amended only once, by Act XLIX of 1981, in order to replace the pre-1981 reference to “hard labour” with the word “imprisonment”. Under article 243, a physician, surgeon, obstetrician, or apothecary who shall have knowingly prescribed or performed an abortion shall be liable to imprisonment for a term from 18 months to four years, and to perpetual interdiction from the exercise of his profession. Under article 243A, instead, whosoever causes the miscarriage of a woman with child, through imprudence, carelessness, unskilfulness in his art or profession, or non-observance of regulations, shall, on conviction, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding EUR 2,329.37.
It unclear whether Maltese courts of justice would reject a defence of necessity in the most serious cases of a threat to the life of a pregnant woman, that is, whether an abortion could be legally performed in Malta to save the life of a pregnant woman. United Nations, Department of Economic and Social Affairs, Population Division (2011). “The World Abortion Policies 2011 wall chart” (footnote number 22). Retrieved 26 July 2012. Under Maltese law, there are no explicit legal provisions in relation to excuses or defences against the crime of abortion as provided under articles 241 to 243A.
In 2005, the Nationalist government proposed that the law prohibiting abortion in Malta be entrenched in the Constitution.Busuttil, Cynthia (7 May 2005) “Plans for abortion law to be entrenched in Constitution”. Times of Malta. Retrieved 26 July 2012. The proposal stalled because of the non-position of the Labour Party (the opposition party at the time) on the issue.Sansone, Kurt (5 June 2005). “No guarantees abortion will not be used as election issue”. Malta Today. Retrieved 26 July 2012. Amendments to the Constitution may, in terms of Article 66 thereof, only be altered through a two thirds-majority of the House of Representatives.“Constitution of Malta” (last amended 2007). Retrieved 26 July 2012.
The “morning after pill”
Maltese governments have always refused the importation of emergency contraception (commonly referred to as the “morning after pill”) in Malta, because it is regarded as possibly being abortifacient if an egg has been fertilised.Mallia, Pierre (19 October 2011). “Emergency contraception”. The Malta Independent. Retrieved 26 July 2012. Still There are some companies that deliver the pill to Malta ( 20 May 2015). “Morning After Pill Malta”. MorningAfterPillMalta. Retrieved 28 July 2015.
Antenatal screening for birth defects
Antenatal screening procedures for birth defects, such as the so-called double, triple or quad tests, help to evaluate the risk that a fetus has certain abnormalities, including Down syndrome (trisomy 21), Edwards syndrome (trisomy 18), and neural tube defects such as spina bifida or a condition called anencephaly.“Triple Screen or Quad Screen”. Lab Tests Online. Retrieved 28 July 2012. Malta does not offer the double, triple or quad tests or generally screen for chromosomal defects, such as Down syndrome: “Down syndrome is not screened for as this is generally associated with a termination programme and termination of pregnancy is illegal in Malta.”Holland, Walter W.; Stewart, Susie; & Masseria, Cristina (2006). [www.euro.who.int/document/e88698.pdf “Policy Brief: Screening in Europe”]. European Observatory on Health Systems and Policies. Retrieved 28 July 2012. Although in Malta spina bifida is often diagnosed at routine antenatal ultrasound, this condition is sometimes only diagnosed clinically after birth. Within Europe, antenatal screening is offered in the the United Kingdom (UK), Denmark , Finland , France , Greece , Italy , the the Netherlands , Spain , and Sweden , amongst others.
Public opinion and internal politics
Malta has an active pro-life movement called Gift Of Life (GOL).“Gift of Life” – official website. By contrast, there is no pro-choice organisation actively lobbying for access to abortion in Malta. Despite that it is generally assumed in local newspapers that the general public is pro-life and against the introduction of abortion in Malta, as at July 2012, no scientific polls or thourough surveys on public opinion have been conducted.
Whilst the subject of abortion is not a predominant topic in either political party’s agenda, the subject has resurfaced from time to time. The Nationalist party (central right) is predominantly pro-life. In 2005, it proposed that the law prohibiting abortion be entrenched in the Constitution of Malta (see above – Reforms). On several occasions during the length of its government (1987- 1996; 1998 – present), it has reiterated in different international settings (see below – Malta’s position in multilateral organisations) that Malta is against abortion in all circumstances. The Labour party (central left) has either taken a non-committal position, as happened when the Constitutional amendment was proposed, or a pro-life stance. During a debate in the Council of Europe (CoE), the Labour party representative, Leo Brincat, stated that “one unifying factor among the parties represented in our country’s parliament [that is, the Labour party and the Nationalist party] is that Malta has always spoken with one voice in its stand against abortion. As for my party – the Malta Labour Party, which represents a fraction less than the relative majority that the governing party currently enjoys – there are no ifs or buts on this issue. The Malta Labour Party always was, is and will remain against abortion. The issue does not feature on our agenda.”Council of Europe: Parliamentary Assembly. “Meeting Minutes”. 16 April 2008. Retrieved 28 July 2012. In April 2012, Labour leader, Joseph Muscat stated that he sees the possibility of an abortion debate as an “opportunity to convince more people to take a pro-life stand”.Times of Malta. 10 April 2012. “Abortion debate an ‘opportunity’ – Muscat”. Retrieved 28 July 2012. The Labour Leader has also expressed disagreement with the use of the morning-after pill, including in those circumstances where a woman was raped.Times of Malta. 19 September 2009. “Labour leader says no to morning-after pill”. Retrieved 28 July 2012.
Although abortion is prohibited in Malta, statistics reveal that women residing in Malta travel abroad to procure abortions. The EU’s open borders and guaranteed freedom of movement permit women living in countries with restrictive policies or outright bans to travel abroad to receive an abortion, provided they can afford the trip.Fong, Diana (21 October 2007). “Common Abortion Policy Remains Out of Reach in EU”. Deutsche Welle. Retrieved 27 July 2012.
Maltese procuring abortions in the UK
The table below contains some statistics on the reported number of abortions carried out on Maltese residents in the UK in accordance with figures contained in the yearly British Department of Health report.Department of Health, UK. “Abortion statistics for England and Wales”. Retrieved 26 July 2012. Department of Health, UK (29 May 2012). “Abortion statistics, England and Wales: 2011”. Retrieved 26 July 2012. As these statistics relate only to the UK, it may not be assumed that this is the total number of abortions performed by Maltese residents globally.
A UN Population Fund report in 2011 estimated the 2008 maternal mortality ratio in Malta to be eight deaths per 100,000 live births.UN Population Fund (2012). “State of World Population 2011. People and possibilities in a world of 7 billion.” Retrieved 27 July 2012. The ratios per 100,000 live births of some other European countries are: Cyprus : 10; Finland, France: eight; Germany , Portugal : seven; Poland, Spain: six; Austria , Belgium , Denmark, Italy, Sweden: five; Ireland: three; Greece: two.
According to a national mortality report, during the year 2010, there were 22 deaths in infants, that is, children below the age of one year, accounting for 0.7% of the total deaths in Malta. Of the 22 deaths, 13 were male and nine were female. The most important causes of death in this age group were conditions originating in the early neonatal period (the neonatal period lasts until 28 days of life), with a total of 16 deaths. 11 deaths, representing half of all infant deaths, were due to congenital anomalies.Department of Health Information and Research, Malta (September 2011). “National Mortality Registry, Annual Report – 2010”. Retrieved 26 July 2012.
The UN Population Fund report in 2011 estimated the 2009 under age five mortality rate, per 1,000 live births, in Malta to be 6.7. Another national report about children, reveals that between 2002 and 2008, 37% of the total deaths involving children under age five were due to conditions originating in the perinatal period (neither the report nor any local official text defines “perinatal period”, although this is generally understood as the period around childbirth, lasting up to one month after birth), whereas an additional 32% of the total deaths were due to congenital malformations, deformations and chromosomal abnormalities.
The European Perinatal Health Report, comparing data of 25 participating EU member states and Norway, shows that in 2004, Malta reported the highest rate of total neonatal mortality due to congenital anomalies, with 2.3 (EURO-PERISTAT sources) to 2.56 deaths (EUROCAT sources) per 1,000 live births. (Table 9.6.)The EURO-PERISTAT project (2008). “European Perinatal Health Report”. Retrieved 26 July 2012.
Malta’s position in multilateral organisations
Malta’s stance on abortion has implications in relation to different fora and organisations, including the European Union, the Council of Europe (CoE) and the United Nations (UN).
Most countries in the European Union allow abortion on demand during the first trimester and under certain circumstances after the first trimester, such as risk to woman’s life or health, fetal defects or other specific situations that may be related to the circumstances of the conception or the woman’s age. Abortion is allowed under specified conditions in Cyprus, Luxembourg , Poland, Portugal and Spain, including social and economic reasons in the case of Finland and the UK, and only if the mother’s life is in danger in Ireland. Malta is the only member-state of the European Union that bans abortion in all cases, and does not have an exception for situations where the woman’s life is in danger.
In 2002 the EU Parliament adopted a resolution on sexual and reproductive health and rights, the so-called Anne van Lancker report, which was an attempt to persuade EU member states to increase access to safe and legal abortions, and to end penalties for women having had illegal abortions.European Union: European Parliament. “European Parliament resolution on sexual and reproductive health and rights” 6 June 2002. 2001/2128 (INI). Retrieved 27 July 2012. This notwithstanding, during accession negotiations to join the European Union, Malta negotiated a protocol which states that “Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in the territory of Malta of national legislation relating to abortion”.“Protocol No. 7 on abortion in Malta”. Retrieved 26 July 2012.
The European Parliament, in its resolution of 13 March 2012 on equality between women and men in the European Union, “Reiterates its position on sexual and reproductive health rights, as stated in its resolutions of 1 February 2010 and 8 February 2011 on equality between women and men in the European Union – 2009 and 2010; expresses concern in this respect about recent funding cuts to family planning and sexual education and also restrictions on access to sexual and reproductive health services in some Member States, in particular pregnancy and maternity protection and safe and legal abortion; [and] stresses that all women must have control over their sexual and reproductive rights including by having access to affordable high-quality contraception.” (Paragraph 47.)European Union: European Parliament. “European Parliament resolution of 13 March 2012 on equality between women and men in the European Union – 2011” 13 March 2012. 2011/2244(INI). Retrieved 27 July 2012. Ultimately, however, disagreement amongst EU member states in relation to abortion, as expressed predominantly by Malta, Ireland and Poland, continues to result in the lack of a common policy by the EU on Reproductive Category:Health.
Council of Europe
According to the 2008 Council of Europe report on access to abortion, abortion on request is available in all Council of Europe member states, except Andorra, Ireland, Malta, Monaco and Poland. Abortion in order to save women’s life is available in all of member states, except Andorra (though not so according to the UN)[www.un.org/esa/…/abortion/doc/andorra1.doc “Andorra”]: “Although the Penal Code of 11 July 1990 contains no explicit exceptions to the prohibition of abortion, under the general criminal law principles of necessity, an abortion can be performed to save the life of the pregnant woman.” and Malta. (Paragraph 8.)Council of Europe: Parliamentary Assembly. “Access to safe and legal abortion in Europe”. 8 April 2008. Doc. 11537 rev. Retrieved 28 July 2012.
The Council of Europe in 2008 declared that abortion should be legal and accessible for all women in Europe and invited member states to decriminalise abortion if they have not already done so and lift restrictions which hinder, de jure or de facto, access to safe abortion, observing that the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way.Council of Europe: Parliamentary Assembly. “Resolution 1607 (2008) on Access to safe and legal abortion in Europe”. 16 April 2008. Retrieved 28 July 2012 The resolution passed with 102 votes in favour, 69 against and 14 abstentions. The three Maltese members with voting rights, Nationalist members of parliament Jeffrey Pullicino Orlando and Robert Arrigo and Labour member of parliament Leo Brincat, voted against the resolution. The Maltese representatives expressed disappointment at the adoption of the resolution.Camilleri, Ivan (17 April 2008). “Council of Europe votes to decriminalise abortion: Maltese delegation disgusted”. Times of Malta. Retrieved 28 July 2012. [The article contains an inaccuracy where it states that “From the 47 member states of the CoE, only Malta, Andorra, Poland and Ireland still completely ban abortion” – in point of fact, Poland and Ireland do not completely ban abortion.]
According to a a 2001 United Nations Report on World Abortion Policies Malta is one amongst four countries in the world – the others being Chile , El Salvador and Nicaragua – that prohibits abortion in all circumstances, including those cases when the woman’s life or health is endangered by the continuation of pregnancy.
In 2004, the United Nations Committee on Economic, Social and Cultural Rights, set up to monitor the International Covenant on Economic, Social and Cultural Rights (CESCR), urged Malta to review its legislation on abortion and consider exceptions to the general prohibition of abortion for cases of therapeutic abortion and when the pregnancy is the result of rape or incest. Like all other UN documents, the CESCR does not officially contain clauses requiring the legalisation of abortion.UN Committee on Economic, Social and Cultural Rights (CESCR). “UN Committee on Economic, Social and Cultural Rights: Concluding Observations, Malta”.14 December 2004. E/C.12/1/Add.101. Retrieved 26 July 2012.
In its concluding observations of October 2010, the Committee on the Elimination of Discrimination Against Women ( CEDAW ) notes that in Malta there is “insufficient access to reproductive health-care services for women,” and complains that sexual and reproductive health and rights are not part of the “curriculum”. With respect to the issue of abortion, CEDAW criticizes Malta for its laws that make abortion illegal in all cases. The Committee therefore “urges the State party to review its legislation on abortion and consider exceptions to the general prohibition of abortion for cases of therapeutic abortion and when the pregnancy is the result of rape or incest. It further urges the State party to remove from its legislation the punitive provisions for women who undergo abortion, in line with the Committee’s general recommendation 24 on women and health and the Beijing Declaration and Platform for Action.” (Paragraphs 34 and 35.)UN Committee on the Elimination of Discrimination Against Women (CEDAW).“Consideration of reports submitted by States parties under article 18 of the Convention: Concluding observations of the Committee on the Elimination of Discrimination against Women – Malta”. 9 November 2010. CEDAW/C/MLT/CO/4. Retrieved 27 July 2012.
Malta’s position and response to the recommendations and observations presented by UN bodies has remained unchanged over the years. During its first Universal Periodic Review (UPR) in front of the Human Rights Council in 2009, Malta stated that its stance on reproductive rights is that “the right to life is an inherent right of every human being and Malta believes this includes the unborn child, from its conception. Abortion is a direct contradiction to the right to life. According to the International Conference on Population and Development, in no case should abortion be promoted as a method of family planning. Malta agreed that action towards the fulfilment of sexual and reproductive rights should focus on the positive aspects of education, social welfare and health care.” (Paragraph 38)UN Human Rights Council. “Report of the Working Group on the Universal Periodic Review – Malta”. 4 June 2009. A/HRC/12/7; A/HRC/WG.6/5/L.6. Retrieved 25 July 2012. In its responses in 2010 to the list of issues and questions presented by the CEDAW, it states that “Since procuring abortion is a criminal offence in Malta, the government of Malta made a reservation to CEDAW, namely, that it does not consider itself bound by sub-paragraph (e) of paragraph (1) of Article 16 [about marriage and family life] of the Convention on the Elimination of All Forms of Discrimination against Women,UN General Assembly. “Convention on the Elimination of All Forms of Discrimination against Women”. 18 December 1979. United Nations, Treaty Series, vol. 1249, p. 13. Retrieved 27 July 2012. in so far as the same may be interpreted as imposing an obligation on Malta to legalise abortion. This continues to be Malta’s position.” (Paragraph 7.)UN Committee on the Elimination of Discrimination Against Women (CEDAW), “Responses to the list of issues and questions with regard to the consideration of the fourth periodic report – Malta”. 29 June 2010. CEDAW/C/MLT/Q/4/Add.1. Retrieved 25 July 2012.
- World Health Organisation. “Facts and figures about abortion in the European Region”