Abortion in Malaysia

Although we live in an era where information is readily available at our fingertips, most of us are still unaware or remain oblivious about the law and circumstances surrounding the issue of abortion in Malaysia. This is mainly due to the lack of knowledge and the social stigma that revolves around the topic.

The main areas that we lack knowledge and understanding of the law are:

• the interpretation of the law regarding abortion; and 
• whether the law allows abortion under special circumstances.

INTERPRETATION OF THE LAW

Is abortion legal in Malaysia?

The law of abortion was established in Malaysia under the British Empire’s Indian 1871 penal code, which criminalised abortions in all circumstances. 

Generally, all kinds of voluntary abortions are illegal in Malaysia, however, there are certain exceptions. 

What are the Exceptions?

There have been two ground-breaking amendments to section 312 of the Malaysian Penal Code: 

a) the first amendment was made in 1971 where abortion was allowed to save a woman’s life; and 

b) another in 1989 to allow abortion to preserve a woman’s physical and mental health.

Section 312 of the penal code states:

“Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. 

Exception—This section does not extend to a medical practitioner registered under the Medical Act 1971 [Act 50] who terminates the pregnancy of a woman if such medical practitioner is 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.”

In essence, section 312 states that abortion is permitted if a registered medical practitioner 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.

‘Good faith’

Only a registered medical practitioner has the power to determine “in good faith” whether the pregnant woman’s life or health is at risk if she continues with the pregnancy.

The good faith requirement is crucial as illustrated in Public Prosecutor v Nadason Kanagalingam [1985] 2 MLJ 122. An obstetrician and gynaecologist was found guilty of voluntarily causing miscarriage not in good faith for the purpose of saving the woman’s life who was suffering from bad or enlarged varicose veins which might cause a pulmonary embolism. She was 16 weeks pregnant at that time. 

The Court was not convinced that the accused had reasonably considered that causing miscarriage was the only avenue to save the woman’s life even with medical experts testifying in favour of the accused. 

Therefore, procuring an abortion is a serious matter and it should only be done as a last resort to save the life of a woman or to save a woman from becoming a mental wreck.

When can a legal abortion take place?

The law does not explain ‘when’ nor at what stage of pregnancy can a medical practitioner perform a legal abortion.

However, according to the Guideline on Termination of Pregnancy (TOP) published by the Ministry of Health Malaysia in 2012:

“Abortion is defined 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 (500gms or 22 weeks gestation)…”

In 2002, the National Fatwa Council issued a fatwa permitting abortion up to 120 days of gestation in cases when the mother’s life is in danger or fetal impairment. 

Nonetheless, the penal code still applies universally.

“Fetal viability” is the point at which a fetus is capable of surviving outside the womb independently of its mother. There is no specific scientific or ethical consensus regarding the exact age of viability for a foetus. Most medical practitioners would put the point of fetal viability at 23 or 24 weeks of gestation (3rd trimester).

What if a doctor believes that a mother’s life is in danger if she continues with the pregnancy but she is 24 weeks pregnant? 

The law is silent on this.

In my opinion, Section 312 should be read together with the Guideline on Termination of Pregnancy (TOP) for a clearer interpretation.  

I believe that abortion or termination of pregnancy should only take place if the point of fetus viability has not been reached (less than 22 weeks). If the mother is more than 22 weeks pregnant, the doctor should induce labour and deliver the fetus instead of aborting it, knowing that the fetus is capable of living outside the womb. 

The hypothesis is that legal abortion can be done before the point in which life begins.

Nirmala, the girl who was punished for having a legal abortion 

In 2014 a young Nepalese woman, Nirmala, was wrongfully arrested and sentenced to 12 months in prison for obtaining a legal abortion.

Nirmala sought an abortion at a local clinic fearing that she would lose her job as a legal migrant worker shortly after she found out that she was six weeks pregnant. While she was recovering from the procedure, officials from the Malaysian Ministry of Health raided the clinic and arrested Nirmala and the doctor.

The doctor was of the opinion that she was legally justified to have a termination after considering the risks of Nirmala losing her job, having to pay compensation to her employer, and being sent back home if found pregnant.

Nirmala was charged under Section 315 of the penal code for committing “an act done with intent to prevent a child from being born alive”. She was sentenced to a year’s imprisonment, hence becoming the first woman in Malaysia to be sent to prison for abortion.

Her case was then appealed and was sent back to the lower court, where Nirmala was charged again. 

During the eight months that the trial lasted, Nirmala was released on bail but she was left unemployed and had to live in a shelter for migrant workers.

Nirmala was then acquitted on the ground that forcing her to continue the pregnancy posed a risk to her life, given her particular circumstances. The charge against the doctor who conducted Nirmala’s abortion was withdrawn.

Due to a lack of clear interpretation and uncertainty in the law, more innocent women like Nirmala will continue to be treated like criminals. Until the law is changed in a positive way and guidelines implemented, women and healthcare providers remain at risk of prosecution in Malaysia.

Does the law allow abortion under special circumstances?

Rape victims or fetal impairment

If a woman was raped and impregnated or if the child would not be capable of living a proper life if he or she was born in terms of mental or physical incapacity, does the mother have the autonomy to decide what happens next?

As far back as 1974, under the UN Population Division, a national fertility and family study found that 71% of women endorsed abortion on the grounds of rape or incest; 54.3% unmarried women endorsed abortion; 52.2% endorsed abortion for health reasons, and 34.5% endorsed abortion for economic and social reasons. 

Section 315 of the penal code states that “an act done with intent to prevent a child being born alive or to cause it to die after birth” is an offence “unless it is for the purpose of saving the life of the mother.”

Abortion is technically still prohibited in Malaysia even if the pregnancy was a product of rape, in cases of fetal impairment, or for other socio-economic reasons.

Hence, in Malaysia a woman cannot or does not have the privilege of choice to have an abortion on any other special grounds unless the mother’s life is in danger.

Further exceptions to allow legal abortion in Malaysia?

In 1971, India passed the Medical Termination of Pregnancy Act 1971 (MTPA) and introduced further exceptions under broader grounds than the Indian Penal Code to reduce illegal abortion.

The similarity between Section 312 of the Malaysian Penal Code and the MTPA is that both allows the termination of pregnancy if it poses a threat to the mother’s life or causes grave injury  to her mental or physical health. 

However, unlike the Malaysian Penal Code, under the MTPA, rape cases and anguish caused by unwanted pregnancy may be categorised as ‘grave injury’ and a woman is allowed to have legal abortion on these grounds.

For an example, the Indian Supreme Court in Chandrakant Jayantilal Suthar v State of Jugara 2015 (8) SCC 721, ruled in favour of a rape survivor to abort her foetus and the bench held that she was allowed to abort the child as it was necessary to preserve the physical and mental health of the girl.

Many questions are still left unanswered and gaps left unfilled in Malaysia due to lack of detailed requirements and broader exceptions regarding abortion. As a result, this has led to more illegal and unsafe abortion.

Where Are We Heading?

Although abortion is permitted in Malaysia under certain exceptions, many are facing difficulties in accessing abortion information and services due to a lack of clear interpretation and understanding of the law. 

A 2007 Reproductive Rights Advocacy Alliance Malaysia (RRAAM) survey of 120 doctors and nurses found that 43% did not know on what grounds abortion is legal and 41% of women who had legal abortions in private clinics did not know what the law permitted either.

Many still fear the stigma of being abortion providers, thus, many doctors and clinics provide abortions ‘on the quiet’.

Malaysia’s poor sex education, stigma towards safe sex discussions, cold treatment of women with unwanted pregnancies, and lack of support for children with no father have caused many mothers, often young women who are unable to care for a child, to opt for unsafe and/or illegal abortion.

There is an urgent need for educational efforts to ensure women are aware of their reproductive rights and also to increase their reproductive knowledge related to abortion. The government has to review its responsibility in providing accessible abortion services within the scope of the law and to look into the regulatory requirements for such services in Malaysia.  

Conclusion

The issue of abortion still remains a controversial topic as it involves many ethical dilemmas especially in regards to autonomy.  In my opinion a woman’s right to her own body should not be meddled by the authority, and access to abortion should be opened and informed.

In the end, what matters most is whether the law allows it or not.