KUALA LUMPUR, July 7 — The recent uproar over the United States’ loss of its constitutional abortion rights following the overturn of the landmark ruling Roe v. Wade has got Malaysians, especially its women thinking: 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 offences of “Causing Miscarriage; Injuries to Unborn Children; Exposure of Infants; and Concealment of Births”.
However, following two amendments in 1971 and 1989, Section 312 allows the procedure if continuation of pregnancy increases risk to the mother's life, or if it causes injury to the mother's physical or mental health greater than if the pregnancy were terminated.
“The phrase ‘injury to... physical or mental health’ does provide leeway to healthcare professionals to refuse to provide abortion services on the basis of differing views of what meets this criterion.
“These views are, in most cases, also influenced by religious beliefs, personal values and even gender-based violence-supportive attitudes,” Jernell Tan Chia Ee, an information and communications officer at advocacy group All Women’s Action Society (Awam) told Malay Mail.
According to Tan, although there is no exception for pregnancies resulting from rape or incest, pregnancies involving severe or fatal foetal impairment, or those that occur in the context of dire financial circumstances, abortion in these cases is permissible if the doctor, in good faith, thinks that it causes injury to the mother's mental or physical health.
Under Section 312, those who provide TOP services may be prosecuted for causing a woman with child to miscarry.
This offence can be punished by prison up to three years, or fine, or both — which may extend to seven years “if the woman is quick with child”, referring to the advanced state of pregnancy.
The 1971 amendment specifies that the section does not extend to a medical practitioner registered under the Medical Act 197 who does so if they are “of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated”.
Section 314 states that if a woman dies from the procedure, it can be punished with prison up to 10 years, and also liable to a fine; and if the woman did not consent to it, can be imprisoned for up to 20 years.
A 2012 Ministry of Health guideline for TOP in public hospital written by the ministry’s Obstetrics and Gynaecology Development Committee chairman Dr J. Ravichandran Jeganathan and disseminated by then director-general Datuk Seri Dr Hasan Abdul Rahman specifies as such:
1. The procedure should only be done with the support of a gynaecology specialist, to ensure that it can be done properly and any complications can be picked up quickly if they occur.
2. While the law states that only one medical registered practitioner is required to assess the procedure, it is suggested that two doctors — with one of them a specialist — should concur that such a procedure is necessary, and that continued pregnancy would risk the bearer’s life, or mental and physical health. An opinion from a psychologist or psychiatrist is not needed unless deemed necessary for risk of severe depression or suicide.
3. A full clerking and examination must be done to determine any coexisting health issues, including a general mental health assessment.
The guideline also states that counselling is required before the procedure, with an opt-out period of 48 hours.
What do Malaysian religious bodies say about it?
The issue was also covered by religious edicts, with the national fatwa council decreeing in 2010 that TOP for a foetus aged over 120 days for a legally-married couple is haram, or forbidden as it counts as a crime towards an infant which already has a soul — unless to save the life of a mother due to severe deformities.
A TOP for a foetus aged below 120 days is harus, or permissible, if it is deformed or ill to the detriment of the mother’s life.
For a foetus aged below 40 days, it is makruh or disapproved, if there is no threat to the mother’s life and consented by both parents.
The procedure is deemed haram for pregnancies that resulted from zina, or sex out of wedlock.
It is also haram for a TOP for an infant older than 120 days, even if that resulted from rape unless to save the life of the mother. For a pregnancy resulting from rape aged below 120 days, it is harus if it is deformed or ill to the detriment of the mother’s life
Meanwhile, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism provided these views for each religion for the abovementioned guidelines for MoH:
Buddhism: TOP is a destructive process that should be avoided if possible, but permissible to save lives. A pregnancy that is unwanted or resulting from rape can be given to others who need or to an orphanage.
Hinduism: TOP is allowed if it is to preserve the life of the mother, but care should always be exercised to avoid unnecessarily harming the unborn and others.
Christianity: It is morally permissible to save the life of an expectant mother and her child through a medical procedure, where the lives of both are immediately threatened, although such procedure may result in the death of the child.
The first case of woman raided for abortion
In November 2014, Nepalese Nirmala Thapa became the first woman to be charged with getting a TOP in Malaysia under Section 315 that handles “act done with intent to prevent a child being born alive or to cause it to die after birth”.
She was convicted the same days she was charged, before filing an appeal in the Penang High Court, and was released on bail to stay at a migrant workers shelter.
Nirmala had in October 2014 gone to a polyclinic in Taman Ciku, Bukit Mertajam in Penang to seek a legal TOP when six weeks pregnant.
A factory worker and migrant, being pregnant puts her job security at risk, and the doctor had then considered her mental trauma as legal justification for her TOP. However, while recovering after the operation, Health Ministry officials raided the premises and had both Nirmala and her doctor arrested.
High Court Judicial Commissioner Datuk Nordin Hassan had in January 2015 set aside conviction and sentencing, citing lack of interpreter.
According to Joint Action Group for Gender Equality, Nirmala had neither a lawyer nor a Nepali court interpreter in court to explain the proceedings to her.
“Migrant women deserve the same reproductive health care as every other woman in Malaysia, and Nirmala was 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 together with the Ministry of Health to work quickly to reverse the unjust and discriminatory charges against Nirmala and to set her free,” Melissa Upreti, regional director for Asia at the Center for Reproductive Rights, had said then in a statement.
In February that same year, the case went for a retrial. After eight months of court 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 her acquittal on September 2015, JAG said the case illustrated the overzealousness of enforcement personnel who do not understand their role or the existing legislation pertaining to TOP, and the realities of the life of women in the country or their right to seek reproductive health services.
“Women across the country seek such services out of sheer necessity and survival. Such prosecution, should it become a practice, would have serious repercussions on the reproductive health of women at large as they would be forced to seek such services outside of medical facilities which are not regulated and hence unsafe,” it said.
It also urged MoH to take responsibility, to educate its staff on the aims of medical support and what the law provides for.
Dr Choong Sim-Poey of Reproductive Rights Advocacy Alliance Malaysia (RRAAM) told Malay Mail that restrictive abortion laws create “an important ethical issue as they violate gender equality and promote economic discrimination”.
“Abortion laws only apply to women’s rights over her own body, no such laws apply to any surgical procedures in men,” he explained.
Alongside that, he notes that “rich people don’t need to search for a safe, friendly and affordable abortion provider” as “many private hospitals will provide that at a price” although prices can range up to RM21,000.
Last month, the United States Supreme Court overturned the landmark 1973 Roe v. Wade ruling that recognised women’s constitutional right to abortion, a decision condemned by President Joe Biden that will dramatically change life for millions of women in America and exacerbate growing tensions in a deeply polarised country.
The court, in a 6-3 ruling powered by its conservative majority, upheld a Republican-backed Mississippi law that bans abortion after 15 weeks of pregnancy. The vote was 5-4 to overturn Roe, with conservative Chief Justice John Roberts writing separately to say he would have upheld the Mississippi law without taking the additional step of erasing the Roe precedent altogether.
The ruling restored the ability of US states to ban abortion. Twenty-six states are either certain or considered likely to ban abortion. Mississippi is among 13 states with so-called trigger laws to ban abortion with Roe overturned.
* Editor's note: An earlier version of this story contained some errors which have since been rectified.