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Govt publishes draft legislation on abortion

Gibraltar by Eyleen Gomez

The Gibraltar Government yesterday published draft legislation to amend and clarify the law on abortion, in a move that will permit legal abortions under certain conditions should Parliament approve the Bill.

The publication of the Bill follows an extensive process of consultation that drew the input of a number of groups from both sides of the sensitive debate and from a cross-section of the community.

Changes to the law here will be matched by health, social and educational support, Chief Minister Fabian Picardo said as part of a Government statement outlining the practical effects of the draft legislation.

This also sets out the limited instances in which an abortion would be legal in Gibraltar.

The proposed legislative changes follow a case that came before the UK’s Supreme Court on the legality of the law on abortion in Northern Ireland.

In that case, the court found that the current law in Northern Ireland is disproportionate and incompatible with Article 8 of the European Convention of Human Rights.

This is because that law prohibits abortion in cases of fatal foetal abnormality, pregnancy as a result of rape and pregnancy as a result of incest.

Article 8 of the European Convention is almost identical to Section 7 of the Gibraltar Constitution Order 2006, the Gibraltar Government said, meaning the UK judgement had implications for Gibraltar.

It added that the Supreme Court case in respect of the law in Northern Ireland means that Gibraltar must act to ensure the compatibility of Gibraltar’s laws with the European Convention right of respect for privacy and family life and, more directly, the Gibraltar Constitution.

The Government said it was advised that the current law is no longer compatible with the Gibraltar Constitution, meaning that it had to take “urgent legislative action”.

The Government said it was nevertheless mindful of the need to proceed in a respectful manner that fulfils its international legal obligations and that reflects the public interest.

As a result, the Government yesterday published a Bill to amend the Crimes Act 2011.

The Command Paper, previously published for consultation, provided, among other things, that the places in which abortions can be carried out are limited to those authorised by the Minister for Health, including places outside Gibraltar.

The Command Paper also specified the limited instances in which an abortion would be legal.

Firstly, the circumstances in which it was proposed that an abortion should be permitted would be those where the continuation of the pregnancy would involve risk to the life of the pregnant woman, or grave physical or mental injury.

Secondly, the Government consulted on whether an abortion should be available where only the health of the foetus suffers from a fatal foetal abnormality, or, if the child were born, it would suffer from such physical or mental abnormalities as to be seriously disabled.

The main changes to the draft Bill, included with the Command Paper, following the consultations conducted by the Inter-Ministerial Committee, are to leave no doubt that only medical practitioners employed by the GHA can certify that an abortion is legal in the circumstances, the Government said.

Non-GHA medical practitioners can only terminate a pregnancy where it is immediately necessary to save the life of the pregnant woman, or to prevent grave permanent injury to her physical or mental health.

Additionally, the period in which abortions can be carried out is limited to 12 weeks. This was a matter on which the Government said it specifically sought feedback from the community.

The Bill does not seek to permit abortions in Gibraltar in cases where, if the child were born, he or she would suffer from such physical or mental abnormalities as to be seriously disabled.

Although the GHA has funded such terminations for decades under successive administrations, and will continue to do so, such terminations are carried out only outside of Gibraltar.

This is because the relevant expertise is not available locally, the Government said.

“Such abortions will still not be able to be carried out in Gibraltar, because this is not a specialist skill that will be repatriated,” it added.

“Should this be an expertise that a future Government of Gibraltar considers should be repatriated to Gibraltar, legislative consent will have to be sought from a future Gibraltar Parliament for such abortions to be carried out in Gibraltar.”

The Chief Minister, Fabian Picardo, said: “The debate on abortion is one that we did not expect to have in this term in office.”

“It must be said, however, that once the UK Supreme Court judgment was reported, our community has engaged in this inescapable debate in a measured and sensitive fashion and in a climate of mutual respect.”

“The groups with whom we met and from whom we have received feedback - both inside and outside of Gibraltar - were in complete agreement as to the importance of the health and social support mechanisms necessary for women with unwanted or unexpected pregnancies.”

“Particular emphasis must also be paid to our education on such matters in schools to ensure we are always up-to-date.”

“I can assure our community that all of these will be in place by the time the Bill is debated in Parliament, and I shall make the relevant announcements in due course.”

“The health, social and educational support we provide will be as important as the changes to the law. I want to thank everyone who contributed to our consultation, and my colleagues in the Inter-Ministerial Committee, for the work they have undertaken with me in the preparation of this legislation.”

“The Minister for Health, Care and Justice, Neil Costa, will present the Bill to Parliament, as it requires changes to be made to the Crimes Act as Minister for Justice and also involves his area of ministerial responsibility for Health and Social Care.”

Additionally, the Gibraltar Government has thanked the people and organisations that took the time to submit their responses to the Command Paper on Abortion.

“On this sensitive and significant issue, it was crucial that the Government took the time to consult as meaningfully and as widely as possible,” it said.