Abortion is murder?!
** The authors understand that views on abortion are personal and in some cases have religious connotations. There is no wish to belittle the beliefs of others. The author states at the outset that this is a very pro-choice view and this article may be biased to that effect.
Amidst the controversies we as a planet have faced in 2020, the two authors of this piece wish to give our take on the laws on abortion in Malaysia, how it is applied and what can be done moving forward.
The Law on Abortion
What is abortion?
Controversially, there is no one accepted definition of the term abortion. One medical dictionary definition is that:
“The expulsion from the uterus an embryo or fetus prior to the stage of viability (20 weeks’ gestation or fetal weight < 500g). A distinction is made between an abortion and premature birth (Infants born after the stage of viability but prior to 37 weeks)”
The definition provides context for the debate between pro-choice and pro-life arguments. One such submission is the term abortion for an infant born after the stage of viability. Where a child is born premature, it can, in theory, survive although its chances of survival increase each extra week it stays in the womb. As such, an expulsion from the womb during this period (after 20 – 24 weeks of gestation) would not be akin to an immediate death sentence and therefore births after that point of the pregnancy should have a different definition attached.
However, definitions are not important in Malaysia. Section 312 of the Penal Code criminalises abortion and prevents any person from voluntarily causing a woman to miscarry:
312. Causing Miscarriage
Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend o three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
Explanation – A woman who causes herself to miscarry is within the meaning of this section
Exception – This section does not extend to a medical practitioner registered under the Medical Act 1971 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 was terminated.
First and foremost, legislation expressly states that the voluntary act of miscarriage carried out by the pregnant woman would result in said woman being liable for criminal charges. Therefore, the act of obtaining or attempting to obtain a miscarriage (commonly termed as seeking the abortion) is criminal behaviour in the eyes of the law. Even if a woman may skirt prosecution on the grounds that the expulsion of the foetus is not a miscarriage, section 315 of the Penal Code provides a much wider catch all which will be discussed further below.
MEDICAL PRACTITIONERS NOT EXEMPT
Aside from the woman, any person who assists in or causes the voluntary miscarriage would also be liable under section 312. For example, in the case of PP v Wong Ah Kean  5 CLJ 599, a clinic assistant who helped cause an abortion in a woman who was three months pregnant for RM700 was jailed for a period of two years. However, medical practitioners who acting in good faith and belief that the termination of the pregnancy was in the best interests of the mother whereby the mother’s physical or emotional health would be in greater jeopardy if the pregnancy would continue than if it was not, would not be liable under section 312.
The oft quoted case for medical practitioners is the case of Public Prosecutor v Dr Nadason Kanagalingam  2 MLJ 122. In the Dr Kanagalingam case, the court found that the abortion was not done in good faith. The woman had attended the Doctor’s clinic for a tube ligation (tying her tubes) after her second child. About a year later, she attended the clinic and it was found that she was 14 weeks pregnant. The Doctor on examination found that she had varicose veins which could have caused a pulmonary embolism and decided with the patient to terminate the pregnancy. The court however was not convinced of the health effects as the statistic quoted by the Defence’s witness (a professor) was that 27.5 in 10000 pregnancies resulted in pulmonary embolisms but did not state that the cause of the embolism was due to the varicose veins. The Court found that it was more likely the pregnancy was not wanted (due to the previous tube tying) and to avoid any further children, the pregnancy was terminated. The case set precedent that in order to terminate the pregnancy, the act of carrying the child to term would be more dangerous to the mother than if the pregnancy were terminated and this was later incorporated into the Act. In the case, the risk at <1% of pulmonary embolism and that too not due to varicose veins, was not sufficient to prove that the miscarriage was caused in good faith.
In addition, Section 315 of the Penal Code criminalises behaviour whereby a person intends to ensure the foetus is not born
315. Act done with intent to prevent a child being born alive or to cause it to die after birth
Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth shall, if such act is not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment for a term which may extend to ten years, or with fine, or with both.
The legislation imposes a fine, or imprisonment or both to a woman who “prevents that child from being born alive”. Before we dive further into the law, we wish to bring up the terminology used in the act. Section 315 presupposes the personhood of the being in the womb in so far that the prevention of its birth is in itself a crime. The foetus (the not yet fully formed baby that will later breathe upon leaving the womb) is given the status of a child. While not expressly defined in the act, the act does state that a child below the age of 10 cannot be held criminally liable which attempts to hold a child as a living person who has autonomy and “personhood”. Thus, the starting point in Malaysian law is that life in the womb is given personhood regardless of its viability independent of the host.
In summary, a pregnant woman cannot obtain (by choice) an abortion or any procedure to terminate a pregnancy save where her life would be in greater harm if the pregnancy was to continue than if it was terminated. The effect of potentially giving the life in the womb a personhood, combined with criminalising any assistance, either by a medical professional or others, in obtaining or providing services around an abortion makes the laws on abortion very strict and all encompassing.
The Choice is Not Yours
A quick study of the act and the case law surrounding section 312 and 315 shows that the pregnant woman’s state of mind in seeking an abortion is important. For example, an involuntary miscarriage (whereby a pregnant woman is unable to carry the foetus to term) would not be considered an abortion as the woman did not voluntarily cause a miscarriage or actively attempt to cause the foetus to not be born alive. However, there are not many cases or guidance on where a pregnancy may be terminated by accident.
For example, anaemic pregnant women. In Malaysia, between 42.5% and 47.5% of women are anaemic with up to 30% of these women being of reproductive age. Therefore, it is not uncommon in Malaysia for there to be anaemic women who choose to become pregnant. In the majority of these women, iron deficiency is reported to be a common cause and is easily rectifiable with the prescription of iron tablets. Failure to manage anaemia may result in premature birth or an increased risk of infant death immediately before or after birth. The hypothetical question posed is this, what is the culpability of the pregnancy woman whereby she forgets to take her iron tablets and it causes either a premature birth or death of the child before or after birth. Bearing in mind section 315 (an act done to prevent the birth of a child), the act of forgetting to take one’s iron tablets could be criminal. Criminal liability hangs on the intention of the pregnant woman. Thus, if said woman chose to abstain from her tablets, she could be liable for prosecution. However, if she merely forgot, as many of us do forget to take our vitamin tablets, would she still be criminally liable?
Whilst proving intent in such cases may be difficult, criminalising all behaviour in which a pregnant woman who does not or refuses to take her medication, which may risk the foetus’ life, may be a step too far. It has the potential to remove choice from a pregnant woman in terms of consent to medication or medical procedure. If any procedure/ medication that said woman fails to take could lead to the death of the foetus, then by simply affirming her right to consent to medical procedure, she risks criminal liability. If such a scenario was to exist, it would seem that the Malaysian legislature prefers the right to life of the foetus over the rights of personhood and consent of the pregnant woman.
How is it applied?
In recent years, the Nirmala Thapa case is widely accepted as the first Malaysian case on abortion. Ms Thapa, a Nepalese lady who was in Malaysia on a work permit had attended a clinic while six weeks pregnant and was alleged to have tried to obtain an illegal abortion. She had attempted to obtain an abortion as she had suffered mental trauma and risked losing her job due to her pregnancy. However, on a raid of the clinic, the Royal Malaysian Police Department arrested Ms Thapa and charged her under section 315 which was a novelty.
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 Ms Thapa’s mental health. She risked losing her job and faced other pressures which the doctor in charge assessed as possible risks of suicide. Ms Thapa’s case has become a landmark case on abortion.
Firstly, it accepted the good faith exception from section 312 of the Penal Code as a defence in a charge under section 315 of the Penal Code. Secondly, the acceptance of mental health pressures as an acceptable reason for an abortion is a progressive view in accepting the pressures faced by women in the workforce and the socio-economic pressures of today’s world.
Nevertheless, Ms Thapa was the first woman to be charged for an abortion in 25 years and the Malaysian government has not been zealous in their prosecution of abortion as a crime.
Keeping in mind all that has been said above, what are the implications of section 312 and 315 on a woman’s right to elect for an abortion.
Firstly, while there has been a lack of criminal prosecutions, the act of abortion is still illegal in Malaysia in most circumstances. Noticeably, there is no exception for an abortion in cases of rape or foetal abnormality. There is no need to elaborate the horrors faced by a victim of rape. However, the law in Malaysia forces a woman to carry the child of her rapist or else face criminal charges. While there are women who would still want to carry the child to term, are we as a society willing to force this option on a woman whose pregnancy was due to a gross violation of her body? Similarly, in cases where the fetus, due to a medical condition, cannot survive outside the womb, would it be fair to force a woman to carry that child to term only for it to die on birth?
The Supreme Court of the United Kingdom on a review of Northern Ireland’s laws on abortion held that laws that forbade abortion in cases of rape or foetal abnormality were incompatible with the right to respect for private and family life as governed by Article 8 of the European Convention on Human Rights. While the decision was not binding, it proved a catalyst for the passing of legislation to legalize abortion in those select circumstances. It is not denied that the Convention on Human Rights is not applicable in Malaysia. Nevertheless, legislators could take a cue from Westminster and amend the Penal Code to allow for an exception to Article 312 or 315 whereby a woman was a victim of rape or where the fetus suffered from certain medical abnormalities. This would of course include an exemption from prosecution for the medical professionals who conduct the abortion.
The authors maintain that a woman should have their choice respected when it comes to their own bodies. While the state can limit personal freedoms when it comes to protecting vulnerable members of society (think criminalizing assault), should it come at the expense of a woman being able to exercise her right over her own body? The only information that should matter is the one present before us at the time an abortion is required/requested. Abortion’s are not simple procedures. They carry with them risks to a woman’s health as well as potential psychological repercussions. A decision to abort is not one that woman comes to lightly. However, a blanket refusal of the right to make such a decision goes against the principle of having autonomy over one’s own body.
 Lippincott Williams & Wilkins, Stedman’s Medical Dictionary (27th Edition), 2000
 The reason for this qualification is that anemia can occur during pregnancy but it is not as common.
 In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 of the Northern Ireland Act 1998 (Abortion) (Northern Ireland)  UKSC 27