The unborn child’s rights and best interests

Abstract

This dissertation seeks to investigate the legal and ethical aspects that pertain to the protection of the rights and interests of unborn children. In the past few decades, there has been an enormous surge in public awareness and action taken to protect the rights of children. An international landmark in this regard is the Convention on the Rights of the Child. In the local context, a Commissioner for Children has been created, and a Children’s Act is in draft form. Consideration of the rights of unborn children, and critical analysis of the issues which concern such rights, is significantly less. One objective of this study is to explore whether there are sufficient measures equal to the task of protecting the rights and interests of unborn children. In this connection, areas of legal and ethical significance among the stakeholders will be identified and analysed. A second objective, an extension of the first, is to examine the problems encountered in using existing legislation to resolve questions that involve unborn children. Such questions include the extension of the Courts’ wardship proceedings to cover unborn children and the issue of Care Orders for the foetus. The methodology involved research into international legislation and case law, with particular emphasis on the ethical and legal considerations that are throwing mothers and their unborn children into conflict with each other. In order to enable a better understanding of these issues, the dissertation traces the origin of this conflict, particularly the role played by advances in medical technology, foetal treatments, and the fast pace of development in medical and healthcare professionals. One of the arguments made in the dissertation, basing on the literature, is that such developments have created a mismatch with the much slower progress of legislation in the field of unborn children, to the detriment of the latter group. The dissertation concludes that a need exists for legislation which addresses the special situation of unborn children, but which also considers the problems of implementing legal decisions in such circumstances. The way forward, scholars increasingly argue, is a holistic treatment in law of the needs of the mother and unborn child together. With regard to Malta, there seems to be agreement among the parties concerned that this is the right path to take, both from the legal and the ethical points of view. One conclusion is that Malta is well placed to learn from the experiences of other countries in this area without suffering from errors which may have been committed.