• UM Law Society

ABORTION IN MALAYSIA

Despite the many legal rights awarded to women in Malaysia, including most rights pertaining to reproductive health, the capacity to make informed choices with regard to their pregnancies and bodily autonomy remains a grey area in the Malaysian legal framework. In this society, where sex education and contraceptives are a privilege of the educated and working class, the right to terminate pregnancies is extremely restricted. Generally, all voluntary abortions in Malaysia are illegal save several exceptions.

There is no specific law governing abortions in Malaysia, but Section 312 of the Penal Code prescribes punishments for miscarriage. Under the proviso, an abortion is permitted if a registered medical practioner under the Medical Act 1971 is of the opinion, formed in good faith, that the continuance of the pregnancy would be a threat to the woman’s life or cause injury to the woman’s physical or mental health. Essentially, the decision to terminate pregnancies lies at the expense of the practicing doctors, with an emphasis on preserving the mother’s health. Worryingly, this opens room for determination of what exactly constitutes good faith and whether it may be influenced by personal beliefs and religious practices. As Malaysia is a country with conservative social values, many still struggle to accept abortion as an ethical medical procedure.

The necessity of good faith and it’s application to abortion was illustrated in Public Prosecutor v Nadason Kanagalingam. Here, the court found the obstetrician and gynaecologist guilty for voluntarily causing miscarriage. The defendant’s argument premised on the notion that the abortion was carried out for the purpose of saving the woman’s life as she was suffering from enlarged varicose veins; a condition that he belived may cause a pulmonary embolism. The court’s decision finding that such actions were not borne in good faith, is evident of the rigorous interpretation and application of the law.

Another point to note is that, in comparison to other jurisdictions, the law on abortion in Malaysia halts with the illustrated provision above. There are no supplementary laws specifying when and at what stage of a pregnancy an abortion can take place or even truly defining an abortion. The Guideline on Termination of Pregnancy (TOP) published by the Ministry of Health Malaysia in 2012 defines abortion as the expulsion or removal of an embryo or fetus from the uterus at a stage of pregnancy when it is incapable of independent survival, at either 500 gms or 22 weeks gestation. This definition addresses abortion only in the context of the fetus. Considering the provisions of Section 312 of the Penal Code, it is difficult to reconcile the lack of acknowledgement legally of the different stages of pregnancy or the varying circumstances surrounding it for the woman especially.

This lack of an independent and comprehensive abortion law in Malaysia remains glaring. By contrast, Singapore has enacted three acts touching on the issue of abortion, namely the Medicine (Advertisement and Sale) Act, Termination of Pregnancy Act (now Abortion Act 1970), and the Penal Code. Under the 1980 amendment to the Termination of Pregnancy Act, women are given absolute liberty in deciding whether to continue a pregnancy or not up to 24 weeks of pregnancy. If it is necessary to carry out an abortion beyond this time limit, for the purpose of saving the life or preventing grave permanent injury to the physical or mental health of the pregnant woman, it is still allowed. In India, the Medical Termination of Pregnancy Act 1971 makes it possible for women to seek abortions on six grounds, including the failure of any device or method used by married couples for the purpose of limiting the number of children in Section 3(2), subject to exceptions in Section 8.

These developments in other countries and the current position in our nation depict the necessity for abortion laws to be reviewed. While some may argue that abortion contradicts moral and ethical values, it is nevertheless an issue that needs to be addressed. Socially, the misconceptions behind women seeking abortions also need to be addressed, what with most abortions opted for when women simply cannot afford to have a child or for their own health. These old laws, rooted in conservatism and with considerable nod to the patriarchal nature of our laws, must be amended to allow women choice over their health and bodies to move towards a more accepting, progressive and understanding society.