KUALA LUMPUR, June 2 — When the Covid-19 pandemic hit Malaysia, the Reproductive Rights Advocacy Alliance of Malaysia (RRAAM) received increasing calls from both men and women, including married couples, asking where they could obtain safe abortions because many of them were out of work.
“I actually dealt with clients who came forward and said ‘look, originally my husband and I wanted to keep this pregnancy, but now we’re both out of a job and we have to take care of our parents who are living with us and we already have two children, so having a third child is not something we can afford,’” Petra Gimbad, a member of the reproductive rights group, told 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.”
Petra said the last time she dealt with a client through RRAAM was in 2020.
“So, that was the beginning of the pandemic when we already see couples experiencing these kinds of issues and having to make difficult decisions,” she said. “You can imagine how more difficult these decisions became as we moved into 2021 and 2022.”
According to a RRAAM report published in late 2020, more than half of hotline callers inquiring about safe abortion services believed they were asking for an illegal service, and expressed a fear of prosecution by authorities.
Amendments That Made Abortion Legal
Abortion became legal in Malaysia following amendments made to Section 312 of the Penal Code, first in 1971, if the procedure is performed to save a woman’s life, and then again in 1989, if it was performed to preserve the physical and mental health of the mother, said Kasturi Puvanesvaran, a legal associate at LAW Partnership.
“These amendments were considered groundbreaking because before that, abortion was illegal in Malaysia.”
Petra, who is also a lecturer on gender studies and migration studies at Monash University Malaysia, explained that the legal amendments were made to address the high maternal mortality rates at the time.
“This is irrespective of whether rape had happened, whatever their financial circumstances. This was why they were supportive of safe abortions being provided through hospitals, especially through medical doctors,” she said.
“Because medical doctors were being placed in very difficult situations whereby they were having to perform safe abortions illegally because if they did not, this meant that when birth delivery occurred, they would lose mother and child.”
Gaps In The Law
The laws pertaining to abortion fall under Sections 312, 313 and 314 of the Penal Code that address the offence of causing miscarriage, as well as Section 315 which stipulates the punishment for the act of preventing a child from being born alive.
“Section 312 and 315 are separate laws,” said Daniella Zulkifli, vice president of the Association of Women Lawyers and a member of RRAAM.
“One way to improve the law is to look at inconsistencies,” she said, pointing out that there were gaps in the exclusions that applied to Sections 312 and 315.
While Section 312 allows for termination of pregnancy if it involves risk to the life of the pregnant woman, or injury to her mental and physical health, Section 315 only permits exclusion for the purpose of saving the life of the mother, without any mention of exceptions for injury to her mental or physical health.
Nirmala, a migrant worker from Nepal who became the first woman in Malaysia to be sentenced in court for undergoing an abortion, was charged under Section 315 of the Penal Code for preventing a child from being born alive.
“In Nirmala’s case, one of the arguments put forward by the defence was to look at the exceptions in Section 312,” said Daniella.
The exclusion provided is limited though, she maintained, as what constitutes injury to mental or physical health is not specified under the law.
“This is where it gets slightly controversial because there are differing opinions on what mental health means, so that’s a question mark.”
According to the World Health Organization (WHO), mental health is a state of well-being in which an individual can realise his or her own potential, cope with the normal stresses of life, work productively and make a contribution to the community.
“WHO’s definition of mental health is not necessarily linked to having a disease of some sort,” said Daniella. “That’s a more liberal approach to what mental health means.”
Based on WHO’s definition, she maintained that an argument could be made that the severe trauma, as well as emotional and mental damage a rape survivor suffers, would qualify as an injury to mental health and her abortion should therefore be permissible under the law.
“Many years ago, there was a debate about whether pregnant women should be able to have an abortion if she has the Zika virus,” Daniella maintained. “There was some controversy about who gets to decide, whether consultation should be made with religious groups.
“But our law says doctors get to decide. Although the Ministry of Health has issued guidelines for termination of pregnancy (TOP), what health care professionals don’t realise sometimes is that the guidelines are a recommendation and not meant to be binding.”
For example, there is a misconception about the guidelines that require two doctors to concur that a TOP is necessary, which is not prescribed by the law, she maintained.
“But you don’t want to get into trouble, you don’t want to be arrested, you can get sued. What are the safeguards for doctors?”
International Obligations Provide Some Guidance
International obligations that Malaysia is a party to, such as the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) and the International Conference on Population and Development (ICPD) Programme of Action, can also provide some reference, added Daniella.
“So all of these (conventions) actually say that we need to have access to SRHR (Sexual and Reproductive Health and Rights), which is not just about abortion.
“I know we’re talking about abortion law, but before we even go there, I think the most important thing is to prevent unwanted pregnancies in the first place. This happens through comprehensive sexuality education (CSE). And CSE in turn, means having access to information that allows you to make decisions.”
She said many cases have shown that young people are sometimes not even aware of what they are doing when they engage in sexual relations.
“So, I think that’s a problem we are facing today, which unfortunately hasn’t been resolved.”
Law Favours The Privileged
The study of legislation extends beyond Acts, statutes and case laws, as it is also about understanding society, said Petra.
In the case of Nirmala, her status in society made her particularly vulnerable.
As a non-Malaysian and a migrant worker earning minimum wage, Nirmala’s access to health care was impacted by her limited financial means.
“If you were to go to a government hospital and you’re a non-Malaysian, the fees that you would pay would be higher compared to a Malaysian,” said Petra.
“So, finances can be an issue, class is also an issue. One of the things that we thought was quite interesting about Nirmala’s case is that abortions are not uncommon in Malaysia. It is quite a common procedure that is done in clinics and hospitals. It is also performed a lot of time, with the knowledge of the husband or partner.”
She pointed out that it was therefore significant that the raid was conducted at the clinic where Nirmala received the procedure.
“This was a clinic that was frequented largely by migrant workers. Does the fact that it was a clinic for poorer women, made it more vulnerable to raids?” asked Petra.
“Why are there no raids performed on bigger hospitals where a Datin pays RM3,000 for an abortion, for example? So you can see the class and finance disparity over there.”
Age also offers a certain amount of privilege as an 18-year-old going to a clinic to ask for contraception to prevent an unplanned pregnancy would probably be perceived less favourably than a 40-year-old who does the same.
“If I were to go to a clinic, it might seem more socially acceptable because the assumption from a doctor or nurse might be that I’m married, while a university student might get a very different kind of treatment,” said Petra.
She presented a number of case studies from her experience as a social worker or from her colleagues to provide food for thought on how the law can be employed to address the needs of marginalised and vulnerable people.
The Marginalised And Vulnerable Who Need Abortions
Petra cited the case of a 19-year-old sex worker in the Bukit Bintang area, who also used drugs.
”Often the two are related. You take drugs because you need to perform sex work – it’s not easy performing that kind of work, especially on the streets – or if you’re a drug user, you might go into sex work if you’re a woman because it’s a way to fund your drug addiction.”
The woman, who lived in an area where there was a lot of baby trafficking, was already in her third trimester by the time she met Petra.
“But when we came across this case, we discovered that she had not once during her pregnancy been to see a doctor.”
She was taken to see a doctor but an abortion was out of the question since it was quite a late onset pregnancy.
“But the concern was how do we convince her, being a drug user, to get to a hospital so that she and the baby she was going to deliver could be taken care of.
“And one of the biggest risks apparently was her going into drug (heroin) withdrawal once she went into delivery, and of course there was a possibility that the baby might be born with severe drug addictions, as well as other disabilities.”
As the time for delivery approached, the woman was nowhere to be found. The last that was heard of her from her friends in the area was that she had disappeared with her baby.
“But they knew of baby traffickers who started asking her before she disappeared if she wanted to sell her baby before it was born,” said Petra.
“So, it’s not an easy decision to make but it’s something that I think we need to keep in mind that it’s not always a black and white decision to say whether safe abortion is permissible or whether it’s right or wrong,” she maintained.
“I think there are a lot of situations when we start to enter quite grey areas.”
A transgender man (a person born with female genitalia but who identifies as being male) was raped by his friends when they found out he was born with female genitalia.
As he was ovulating at the time he was raped, he discovered a couple of months later that he was pregnant.
“So that raises the ethical issue in such a circumstance because not only is he a rape victim, he is also a transgender male, and the transgender community is subjected to a lot of discrimination in Malaysia,” said Petra.
“And there are a lot of complications and difficulty finding work, what more if you’re a transgender male who is hugely pregnant and trying to work.
“And even if you’re able to work, there is a huge likelihood that you are limited to the types of jobs that don’t pay you very well.”
A 13-year-old teenager, who is an undocumented immigrant, was married to an adult Malaysian man.
There was a financial incentive for her to be married to the man because she was born to a family that was very poor.
“So the fact that they could marry her off meant that they not only had one less mouth to feed, but it also meant that in future if they needed financial assistance, they could appeal to this much older man who married their daughter for assistance because they had other children,” noted Petra.
“In these kinds of circumstances, say you’re 13 or 14-years-old, your ability to say no to your husband who is much older than you and who holds all of the financial power, there’s very little power for you to say no.”
Petra observed that a lot of teenage pregnancies happen within child marriages.
“This can be quite harmful because some of us may be quite aware that women’s bodies don’t start developing during the teenage years.
“Even though our abortion laws are a lot more permissible, we are still not thinking about how it can be applied to child marriage, especially for under-developed teenage girls who may encounter health complications and health risks if they get pregnant before their bodies are physically ready.”
Access To Health For All
Abortion laws are also about providing access to health for everyone, said Petra.
She added that it is important to take into account how the law impacts people who are marginalised and going through a hard time.
“We have to think about what the law has to say truthfully about abortion on the one hand, but also how the law can protect vulnerable people who are forced to obtain abortions under certain types of circumstances.
“And I really do believe that the more empathetic we are, the better our understanding of the law will be.”