The question which is currently being debated in Malta is whether morning-after pills are legal or illegal. From a legal viewpoint, the answer to this question depends very much on the effects these pills procure: are they purely and simply contraceptive or are they both contraceptive and abortifacient at one and the same time? Depending on how the medical community answers this question, the legal reply follows.
If these pills prevent ovulation or fertilisation, then they are contraceptive: they are not illegal in terms of the Criminal Code, though moral consequences might ensue with regard to their dispensation and use. But if these pills interrupt life after conception by preventing implantation, then they are abortifacient. In the eyes of the Criminal Law, this is a totally different matter from contraception as it is outrightly prohibited.
This is because abortion is illegal in Malta in terms of the Criminal Code. In terms of the Embryo Protection Act, life begins from fertilisation. A thorough study of Maltese law reveals that its raison d’être is to protect life not to annihilate it. This is evidenced, for instance, from laws such as the Criminal Code, the Civil Code, the Domestic Violence Act and the Embryo Protection Act.
All these laws protect not only a human being who is alive and kicking but even a person who has been conceived though yet unborn. A pregnant woman is protected from domestic violence under the Domestic Violence Act but even the unborn child she carries is so protected.
In terms of the Civil Code, the Civil Court may appoint a curator ad ventrem in those cases where the husband has died yet his wife is pregnant. The Civil Code protects the unborn child for s/he might be deprived of proprietary rights which might devolve upon him or her on the demise of his or her father.
The Embryo Protection Act is categorical in this respect when it defines an embryo as “the human organism that results from the fertilisation of a human egg cell by a human sperm cell”.
Maltese law therefore celebrates life not its taking away. It aims to protect the interests of vulnerable persons who cannot defend themselves, be they unborn children or children who are already born even, if need be, to the detriment of parents’ rights and women’s rights.
Because children – whether born or unborn – are vulnerable, innocent and defenceless, and the law places them in a special privileged position. The law considers the interests of born and unborn children to be paramount to such extent that children’s rights supersede and bring to naught those of their parents or guardians.
The same reasoning is adopted when the State, through a care order, takes over the care and custody of a child from the child’s own legal parents to ensure the child’s best interests and well-being by entrusting that child to the responsible minister.
The Criminal Code penalises the administration of any medicine which brings about the miscarriage of any woman with child. Any apothecary who administers the means whereby the miscarriage is procured is in breach of the criminal law. The consequence of this is that if a morning-after pill is abortifacient, then it is in breach of the Criminal Code.
Not only so, but if any such pill, including any pill which is already on the EU register of medicinal products for human use, might already be dispensed in Malta, causes abortion, then Malta is also in breach of European Union law irrespective of whether such a pill has been added to that register by another EU member state not being Malta.
For no other EU member state, not even the European Medicines Agency, may violate without consequences EU law. When allowing an abortifacient morning-after pill to be included in this register – which is perfectly legal to do so in other EU member states which have no qualms with abortion – to be dispensed in Malta, then it is the Maltese Medicines Authority which is in breach both of Maltese criminal law and EU law.
The fact that an abortifacient pill is on the register is no excuse to breach Maltese and EU law with total disregard to the rule of law. The Abortion Protocol to the EU Treaty of Accession, an EU law of higher standing than that regulating the European Medicines Agency and its register, clearly states that Maltese legislation prevails over the totality of EU law, including the register of medicinal products, with regard to the crime of abortion.
Prudence dictates that as a precautionary measure it is life, not death, that should have the upper hand and, unless it is proved scientifically that a morning-after pill is not abortifacient, then it should not be imported or administered in Malta unless Maltese law is progressively modernised to glorify death through the legalisation of abortion. Otherwise the rule of law would be honoured more by its breach than by its observance.
Both the European Commission and the European Medicines Agency are obliged by EU law to ensure that they comply therewith. Where this is not the case, they have to take the necessary action envisaged by the EU treaties to enforce EU law, whether they like it or not, for even European institutions are subject to the rule of law and are not above the law. On the other hand, it is clear that once the Maltese Medicines Authority appears to accept unquestioningly any medicine which happens to be listed on the EU register of medicinal products without going that extra mile to investigate any abortifacient effects it might have as it is mandated to do by Maltese and EU law, its credibility in ruling on the legality of a morning-after pill is seriously dented due to its lack of thoroughness, due diligence and objectivity when evaluating morning-after pills.
On the other hand, being after all more of a bioethical and bio-legal rather than a purely and simply pharmacological issue, the advice of the Bioethics Consultative Committee should be sought as it is this committee – not the Medicines Authority – which enjoys competence in bioethical matters. Unless and until the Bioethics Consultative Committee advises the government that a pill is not abortifacient, and the Attorney General concurs with such advice, no morning-after pill should be dispensed in Malta, even if it is on the EU register of medicinal products.
And this in homage to the general principle of law known as the precautionary principle which requires that no human life be taken unless it is ascertained with precision that this will not be the case.
Being a highly controversial issue and for transparency’s and accountability’s sake, the written advice of both the Bioethics Consultative Committee and the Attorney General should be published for public scrutiny and laid on the table of the House of Representatives.
Should this advice not be adhered to by government, the Minister of Health should publish a written justification why he has intentionally disregarded such advice followed up by a ministerial statement in the House of Representatives.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.