With the law overturned in the United States, what is the legal status of abortion in Malaysia?

KUALA LUMPUR, July 7 – The recent outcry over the United States’ loss of its constitutional abortion rights following the reversal of the landmark Roe v. Wade made Malaysians, especially women, think: what about abortions in Malaysia?

To put it simply, termination of pregnancy (TOP) is mostly illegal under sections 312 to 316 of the Penal Code, which cover the offenses of “causing miscarriage; Injuries to unborn children; infant exposure; and concealment of births”.

However, following two amendments in 1971 and 1989, Article 312 authorizes the procedure in order to save the wearer’s life, and to preserve his mental and physical health.

“The phrase ‘harm to…physical or mental health’ provides leeway for medical professionals to refuse to provide abortion services based on differing opinions about what meets this criterion.

“These opinions are, in most cases, also influenced by religious beliefs, personal values ​​and even attitudes favorable to gender-based violence,” said Jernell Tan Chia Ee, information and communications manager at of the advocacy group All Women’s Action Society (Awam). malaysian mail.

According to Tan, there is not even an exception in the law for pregnancies resulting from rape or incest, pregnancies involving severe or fatal fetal impairment, or those that occur in difficult financial circumstances.

Under Section 312, those providing TOP services can be prosecuted for causing a woman with a child to miscarry.

This offense can be punished by imprisonment for up to three years, or a fine, or both, for up to seven years “if the woman is quick to have a child”, in reference to the advanced state of pregnancy.

The 1971 amendment clarifies that the section does not apply to a physician registered under Medical Act 197 who does so if he is “in the opinion, formed in good faith, that the continuation of the pregnancy would involve a risk to the life of the pregnant woman, or damage to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated”.

Article 314 states that if a woman dies from the procedure, she can be punished with a prison term of up to 10 years, and also liable to a fine; and if the woman has not consented, may be imprisoned for up to 20 years.

A 2012 Ministry of Health guideline for TOP in public hospitals written by the Chairman of the Ministry’s Obstetrics and Gynecology Development Committee, Dr. J. Ravichandran Jeganathan, and circulated by the Director General of the At the time, Datuk Seri, Dr. Hasan Abdul Rahman, clarified as follows:

1. The procedure should only be performed with the support of a specialist in gynecology, to ensure that it can be performed correctly and that any complications can be detected quickly if they arise.

2. While the law states that only one licensed physician is required to assess the procedure, it is suggested that two physicians – one of whom is a specialist – should agree that such a procedure is necessary and that the continuation of the pregnancy would endanger the health of the carrier. life or mental and physical health. The advice of a psychologist or psychiatrist is not necessary unless it is deemed necessary in case of risk of serious depression or suicide.

3. A full externship and examination should be completed to determine any co-existing health conditions, including a general mental health assessment.

The guideline also states that counseling is required before the procedure, with a 48-hour opt-out period.

What do the Malaysian religious authorities say?

The issue has also been the subject of religious edicts, with the national council of fatwas decreeing in 2010 that the TOP for a fetus over 120 days old for a legally married couple is haraamor prohibited because it counts as a crime against a child who already has a soul — except to save a mother’s life due to severe deformities.

A TOP for a fetus less than 120 days old is harusor permitted, if deformed or ill to the detriment of the mother’s life.

For a fetus less than 40 days old, it is makruh or disapproved, if there is no threat to the life of the mother and with the consent of both parents.

The procedure is deemed haraam for pregnancies resulting from Zineor sex outside of marriage.

It is also haraam for a TOP for an infant over 120 days old, even if it results from rape except to save the life of the mother. For a pregnancy resulting from rape less than 120 days old, it is harus if he is deformed or sick to the detriment of the mother’s life

Meanwhile, the Malaysian Advisory Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism provided these views for each religion for the aforementioned guidelines for the Ministry of Health:

Buddhism: TOP is a destructive process that should be avoided if possible, but allowed to save lives. A pregnancy that is unwanted or resulting from rape can be entrusted to others who need it or to an orphanage.

Hinduism: OPT is allowed if it is to preserve the life of the mother, but care must always be taken to avoid unnecessary harm to the unborn child and others.

Christianity: It is morally permissible to save the life of a pregnant woman and her child through a medical procedure, where the lives of both are immediately threatened, although such a procedure may result in the death of the child.

The first case of a woman searched for an abortion

In November 2014, Nirmala Thapa from Nepal became the first woman to be charged with obtaining a TOP in Malaysia under Section 315 which deals with “acts done with intent to prevent a child from being born alive. or to cause it to die after birth”.

She was convicted the same day she was charged, before appealing to the Penang High Court, and was released on bail to stay in a migrant worker shelter.

Nirmala had visited a polyclinic in Taman Ciku, Bukit Mertajam in Penang in October 2014 to seek legal TOP despite being six weeks pregnant.

A factory worker and migrant, being pregnant puts her job security at risk, and the doctor then considered her mental trauma as legal justification for her TOP. However, as they recovered from the operation, Ministry of Health officials raided the premises and had Nirmala and her doctor arrested.

The High Court Judicial Commissioner, Datuk Nordin Hassan, in January 2015 overturned the conviction and sentence, citing the lack of an interpreter.

According to the Joint Gender Action Task Force, Nirmala had no Nepalese lawyer or interpreter in court to explain the proceedings to her.

“Migrant women deserve the same reproductive health care as all other women in Malaysia, and Nirmala has been unfairly targeted. If Nirmala’s conviction is upheld, it will set a dangerous precedent for the harassment and unlawful imprisonment of any woman in Malaysia who obtains legal abortion care.

“We urge the Malaysian judicial authorities, as well as the Ministry of Health, to work quickly to quash the unfair and discriminatory charges against Nirmala and release her,” said Melissa Upreti, Asia Regional Director at the Center for Human Rights. reproductive rights. A declaration.

In February of the same year, the case was retrial. After eight months of legal proceedings, the Penang Sessions Court acquitted her as the prosecution had failed to prove a prima facie case against her.

Where do we go from here?

In a statement following his acquittal in September 2015, JAG said the case illustrated the overzealousness of law enforcement personnel who do not understand their role or existing legislation relating to TOP, and the realities of women’s lives in the country or their right to seek reproductive health services.

“Across the country, women are seeking such services out of sheer necessity and for survival. Such prosecutions, if they become a practice, would have serious repercussions on the reproductive health of women in general as they would be forced to seek these services outside of medical facilities which are unregulated and therefore unsafe,” he said. declared.

He also urged the Ministry of Health to take responsibility, educate its staff on the goals of medical support and what the law provides.

Dr Choong Sim-Poey of Reproductive Rights Advocacy Alliance Malaysia (RRAAM) said malaysian mail that restrictive abortion laws create “a significant ethical problem because they violate gender equality and promote economic discrimination”.

“Abortion laws only apply to women’s rights over their own bodies, no such laws apply to male surgeries,” he explained.

Along with this, he notes that “wealthy people do not need to search for a safe, friendly and affordable abortion provider” because “many private hospitals will provide it at a price”, although prices can go up at RM21,000.

Last month, the United States Supreme Court overturned the landmark 1973 decision Roe v. Wade that recognized women’s constitutional right to abortion, a move condemned by President Joe Biden that will dramatically change the lives of millions of women in America and exacerbate growing tensions in a deeply polarized country.

The court, in a 6-3 ruling by its conservative majority, upheld a Republican-backed Mississippi law that bans abortion after 15 weeks of pregnancy. The vote was 5–4 to overthrow Roe, with conservative Chief Justice John Roberts writing separately to say he would have upheld the Mississippi law without taking the additional step of completely erasing the Roe precedent.

The decision restored the ability of US states to ban abortion. Twenty-six states are certain or considered likely to ban abortion. Mississippi is among 13 states with so-called trigger laws to ban abortion with Roe overturned.