KUALA LUMPUR, May 27 – Until legislations on abortion in Malaysia are reformed or more guidelines are provided, women and health care providers run the risk of being prosecuted for having their pregnancy terminated or performing the procedure, says a legal expert.
Section 312 of the Penal Code states that registered medical practitioners are excluded from prosecution for the crime of causing miscarriage if they terminate the pregnancy based on their good faith opinion that to continue carrying the child would risk the life of of the pregnant woman or cause injury to her mental or physical health.
However, Kasturi Puvanesvaran, legal associate at LAW Partnership, says although termination of pregnancy is permitted under the law, the circumstances under which it is allowed is limited.
“It is important note that the law says that only a medical professional can form a good faith opinion,” she said at a webinar on April 29, organised by the Asian Law Students Association, Universiti Utara Malaysia (ALSA UUM) on “A Deep Dive Into Abortion Law in Malaysia”.
“This particular drafting of the Act means that the decision to allow abortion lies in the hands of a medical professional, not in your or your parents’ hands.”
This is worrying, said Kasturi, who is also founder of The Legalholics, an online forum for legal issues, because based on a survey conducted by the Reproductive Rights Advocacy Alliance of Malaysia (RRAAM), only 57 per cent of 120 doctors and nurses knew abortion was legal in certain circumstances.
“Because abortion is a taboo subject, many are oblivious about it,” said Kasturi, who added that lack of knowledge could lead to a lot of problems.
“Doctors can reject a request for abortion based on their personal or religious views. This results in women being passed from hospital to hospital until they can find a doctor who will perform the procedure.
“By the time she finds a doctor who is willing, she could be heavily pregnant or may have resorted to back alley and dangerous abortion procedures.”
Kasturi notes that the term “good faith” also renders health care professionals vulnerable under the law as the term is subjective and subject to the court’s interpretation.
She cited the case of Public Prosecutor v. Dr Nadason Kanagalingam, in which an obstetrician and gynaecologist was found guilty of causing a miscarriage not in good faith.
The case involved a woman who was 16 weeks pregnant and upon examination, was found to have varicose veins, which the doctor believed might have caused a pulmonary embolism.
The decision to terminate the pregnancy was made with the patient.
“Even though he had peers testify in favour of him, saying they would have done the same thing, the court was not of the same opinion,” said Kasturi.
The court found it was more likely the pregnancy was not wanted and to avoid any further children, the pregnancy was terminated.
“This case laid out that you can’t just form an opinion,” Kasturi asserted. “You must always have abortion as a last resort. This imposes a strict obligation on doctors. They have to be really sure about the procedure.”
However, specific details about permissible conditions for legal abortion, including at what stage of the pregnancy it is allowed, are not spelled out under the law, says Kasturi.
“Because the law is so vague and provides no proper guidelines on where and when abortion can take place, we have to seek guidance from the Ministry of Health’s 2012 Guidelines on Termination of Pregnancy (TOP), which is like an SOP for doctors.”
According to the TOP guidelines, termination of pregnancy is confined to procedures to remove an embryo or foetus where the pregnancy is less than 22 weeks of gestation.
Foetal viability — the point when a foetus is capable of surviving outside its mother’s womb – is estimated to begin at 23 or 24 weeks of gestation.
So, what happens if a doctor thinks that a woman is 24 weeks pregnant and believes that pregnancy poses a threat to her life, or physical or mental health?
“The law is silent on this, which is sad, because there are so many questions arising or so many decisions that have to be made by medical practitioners without legal guidelines,” said Kasturi, who added that Malaysia also does not have a lot of case laws for reference.
One of the most frequently cited case law is of a Nepalese woman named Nirmala Thapa, who was prosecuted for having an abortion.
In 2014, Nirmala, who was in Malaysia on a work permit and was six weeks pregnant, sought an abortion at a local clinic in Bukit Mertajam, Penang, because she feared losing her job.
The doctor thought the pregnancy would impose a serious risk to her mental health, as she faced the pressures of raising her child with no income if she lost her job.
Nirmala was recovering from the procedure when the clinic was raided. Both she and the doctor were arrested. She was charged under Section 315 of the Penal Code for preventing a child from being born alive.
“She was the first woman in Malaysia to be sentenced for a legal abortion by the way, since the doctor was of the opinion that the abortion was justified,” said Kasturi.
Although initially convicted, her conviction was quashed on appeal. At the retrial, the court found that the termination was conducted in good faith by the doctor in charge because there was a risk to Nirmala’s mental health.
“They came to the conclusion after a couple of years instead of listening to the doctor in the first place,” said Kasturi, who added the charges against the doctor were withdrawn after Nirmala was acquitted.
Despite her acquittal, Nirmala faced hardship as she had become unemployed and had to live in a shelter for migrant workers.
“So, from this case, we can conclude that due to lack of clear interpretation of the law, more women will be treated like criminals,” said Kasturi, adding that the law also does not make exceptions for cases of rape, foetal impairment or economic considerations.
“Abortion is illegal regardless of the circumstances,” she maintained. “Women do not have the privilege of choice unless their lives are in danger.”
Due to lack of clear interpretation and understanding of the law, many women also face difficulties in accessing abortion information and services.
“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.”
The issue of abortion still remains a controversial topic as it involves many ethical dilemmas, especially in regard to bodily autonomy, Kasturi maintained.
“In my opinion, what’s right for her body should not be meddled with by authorities.”