Termination of pregnancy : does the criminal law protect the unborn child?

Abstract

In much the same way that advocating for the decriminalisation of abortion is not equivalent to arguing in favour of a right to secure the death of the unborn child, a criminal law prohibiting the practice of abortion within a defined territorial jurisdiction will not necessarily protect the life of the unborn child. Indeed, Maltese criminal law relative to the procurement of a miscarriage makes no specific reference to the death of an unborn child. Traditional teaching on the subject, however dictates that the right protected, by way of the crime of abortion, is that of life and, specifically the life of the foetus. That notwithstanding, there is latitude for scholarly debate at least to suggest that the criminal law prohibits the procurement of a miscarriage and not specifically the death of conceived, unborn human life. This article builds upon this latter concept sustaining that, should there be an intention to protect the life of the unborn child, then one ought to speak of a right not be killed rather than a right not to be miscarried. Subsequently within reason, the criminal law could protect the life of the unborn chi d rather than criminalise abortion. Whilst considering the reach and effect of the criminal law relative to the procurement of miscarriage or abortion, the article briefly considers, though sets aside, the idea of elevating any right to life pertaining to the unborn child to a constitutional level. Should the pertinent authorities seek to protect the life of the unborn child, it is sustained that the unborn child could be considered individually and legislation be enacted accordingly, whilst always respecting the rights and interests of other parties intimately involved in a pregnancy.