AN ACT to further amend the Criminal Code, Cap. 9. Bill No. 28A : position paper

Abstract

This position paper is prepared by a group of experts in various fields. We are gravely concerned about the new Bill that government wants to introduce and thus we strongly urge the wording of the proposed Bill to be changed to: No crime is committed under article 241(2) or article 243 when the death or bodily harm of an unborn child results from a medical intervention conducted with the aim of saving the life of the mother where there is a real and substantial risk of loss of the mother's life from a physical illness. Moreover, we raise the following serious concerns and propose several recommendations aimed at improving the drafting of the Bill in order to contribute to a healthy discussion on this Bill. 1.The Bill is too telegraphic and bereft of detail. Bearing in mind that the Bill touches upon nothing less than the most fundamental of all human rights – the right to life -we propose that it would be better to include more details as to how the provision ought to operate in practice. 2.Key terminology is not defined and might be misconstrued. The term “health” can sometimes be used to describe non-life-threatening situations. This might place obstetricians in a position where they are unable to carry out their duty of care to patients without risking criminal prosecution or disciplinary proceedings because of lack of clarity in the language used. 3.There is inconsistency in the terms used between this Bill and other relevant articles in the Criminal Code, contributing to further lack of clarity and leading one to understand that there is a difference between these same concepts where there ought to be none. 4.There is no mention in government’s Bill to the effect that where medically possible a viable foetus should be allowed to be born prematurely rather than resorting to a termination of life in utero. In addition, we recommend, inter alia, that: 1.More legal certainty be employed in the drafting of the Bill, which would benefit the medical professional undertaking the medical procedure, the pregnant woman and the unborn child, be it at the foetal or embryonic stage, and the judiciary who might eventually be called upon to interpret the provision of the Criminal Code. 2.A new article be added to the Criminal Code, which is to apply only in those cases of a pregnant woman whose life is in manifest danger of death or where a real risk to her life exists from a physical illness. 3.Doubt is to be avoided and legal clarity ensured by stating that cases where a pregnant woman’s life is in danger does not include non-life-threatening cases (e.g.anxiety, emotional distress, organic mental disorder, rape, foetal abnormality etc.).