THE LEGAL ISSUES OF ABORTION IN MALAYSIA

As a general rule, abortion is illegal in Malaysia and both parties; the mother and the
provider of the service can be charged according to the Penal Code. Exception to this is for
the medical cause in which a registered doctor 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. Apart
from this cause, it remains illegal. As for example, a rape case alone is not an indication for
the legalization of abortion. However, if the pregnant mother of a rape case develops severe
mental distress in which according to medical doctor could harm her in any aspect, therefore
it is legal to perform abortion.

Another issue is whether the abortion should need consent from the patient. As a
general rule, abortion performed without consent from the mother deserves a penalty charges.
However, another section (section 92) can be applied to save a doctor who performed
abortion with a good intention to save the mothers live. The indication of legal abortion in
Malaysia including 1) Any medical condition that can be worsened by pregnancy. 2) A
pregnancy with foetus that is unlikely to survive like anencephaly. This is not applied to any
syndrome or congenital malformation in which the baby could survive like Down syndrome.
3) A rape case in which the pregnancy causing the mental distress to the patient.

The Malaysian Medical Council regards induced non-therapeutic abortion a serious

infamous conduct and if proved to the satisfaction of the Council, a practitioner is liable to
disciplinary action. A criminal conviction in Malaysia or elsewhere for the termination of
pregnancy in itself affords grounds for disciplinary action. (Code of Medical Ethics,
Malaysian Medical Association)

The development of Malaysian Law for abortion

Mr S. Radhakrishnan, Vice President of the Medico Legal Society, and Advocate and
Solicitor of Shearn Delamore, said that the absence of the word abortion in our laws has led
to claims and misconceptions that it is illegal, although the law actually provides for
termination of pregnancy. The legal term for abortion is termination of pregnancy or TOP
for short. This is to distinguish induced abortions by choice, as opposed to spontaneous
abortions and other medical complications of pregnancy. Abortion law in Malaysia
historically comes from the UK via India as a criminal offence, originally without exception,
it was included in the Penal Code.

Amendments were made to the Penal Code Act 574 Section 312 in 1971 and 1989.
These amendments provided grounds for exceptions to the criminal code. They permitted
abortions in cases where the continuance of the pregnancy :
a) Posed a threat to her life (in 1971); and then later
 b) May be injurious to the mental or physical health of the woman (in 1989).
The purpose or objectives of the amendments was due to the fact that previous laws
caused many women to resort to unsafe abortions, endangering their health and lives and, for
doctors, their fears of prosecution if they tried to help the abortion seeker. In this respect, it is
important to note that an opinion on the womans mental health does not require psychiatric
assessment. A qualified doctors opinion is considered acceptable.

The provisions of law in the Penal Code regarding the issue of abortion

Causing miscarriage

Under Section 312 of the Malaysia Penal Code (Act 574) , 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. The definition of Woman Quick with Child can be found in Bouviers Law
Dictionary, Revised 6th Edition (1856). It means that the mother is said to be quick with
child when the motion of the foetus, called quickening, is felt by the mother. Quickening
happens at different periods of pregnancy in different women. Usually around the 15th or
16th week after conception.

Basically this provision stated that a woman who causes herself to miscarry is within
the meaning of this section. However, there are exceptions to this section. 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. It was commented that Section 312 of the Penal Code
outlined the importance of the opinion of one medical practitioner formed in good faith that
the continued pregnancy involve risk to the life to the mother suffices.

In the case of PP v Dr Nadason Kanagalingam1, a woman had tubal ligation done by

the accused. Later, she was found to be pregnant and had enlarged varicose veins. The
accused gave her a saline injection, and a foetus was aborted. The accused gave evidence that
he performed the abortion in good faith to save the life of the woman, who was suffering
from enlarged varicose veins which might cause pulmonary embolism. The court in deciding
this case held that procuring an abortion is a serious matter and should only be done as a last
resort to save the life of a woman from becoming a mental wreck. The accused had not given
reasonable thought and had not taken enough steps to examine the woman further.His finding
that the woman had enlarged varicose veins is a result of his mere clinical examination, as
there were no statistics to show from the cases of pulmonary embolism how many were

1
[1985] 2 MLJ 122
caused by varicose veins. Therefore, there was no indication that the womans life was or
would be in danger if the pregnancy was allowed to continue.

Causing miscarriage without womans consent

On the other hand, another issue regarding abortion in Malaysia concerned on causing
miscarriage to a woman without her consent. This is governed under Section 313 and 314.2 It
stated that whoever commits the offence defined in section 312, without the consent of the
woman, whether the woman is quick with child or not, shall be punished with imprisonment
for a term which may extend to twenty years, and shall also be liable to fine. This punishment
is also applicable if death was caused by act done with intent to cause miscarriage and if the
act done was without womans consent.

Nevertheless, the scope of Section 314 of the said Act provides that whoever, with intent to
cause the miscarriage of a woman with child, does any act which causes the death of such
woman, shall be punished with imprisonment for a term which may extend to ten years, and
shall also be liable to fine; and if the act is done without the consent of the woman, shall be
punished with imprisonment for a term which may extend to twenty years.

The explanation to Section 314 Penal Code is that It is not essential that the offender should
know that the act is likely to cause death. As illustrated in the case of Mary Shim v PP3, the
court was satisfied that the accused procured an abortion by inserting a stick into the
deceaseds womb. The deceased contracted septicemias from which she died of septic
abortion.

Act done with intent to prevent a child being born alive or to cause it to die after birth

Another significant provision is Section 315 of Penal Code which stated that 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.

2
Penal Code (Act 574)
3
[1962] 1MLJ 132
Further amendments to our Laws

Section 312 of the Penal Code states that a termination of pregnancy is permitted in
circumstances where there is risk to the life of the pregnant woman or threat of injury to her
physical or mental health. Although terminations are permitted, the law is nevertheless
limited. Under the Penal Code it is the doctor alone who makes the decision as to whether a
termination should be carried out. This is especially worrying in view of the results from the
2007 survey by the Reproductive Rights Advocacy Alliance of Malaysia (RRAAM) which
found that only 57 per cent of 120 doctors and nurses surveyed knew that abortion is legal in
certain circumstances.

Women have the right to determine the course of their lives and they have the right to
make decisions about their own bodies. Women must be equipped with knowledge and be
aware of the options available to them, so that they can make informed decisions. However
expert a doctor may be, doctors will never be fully aware of the facts of a woman's
circumstances and so cannot make a completely informed decision about the appropriateness
of a given option. It is the woman who has this understanding and it is the woman who
should be legally and practically empowered to make the decision.

However, many women cannot make this fully informed decision because they are
not provided with comprehensive and unbiased information about sex, contraception,
abortion and sexually transmitted diseases. This needs to change. It is encouraging to note
that the government has recently introduced the Social and Reproductive Health Education
Programme into the National Service curriculum, so that young people can be given the
knowledge they need to make informed choices. And this is the crux of the issue when
people are provided with clear and unbiased information, they can make the most appropriate
decisions for themselves.

However, attempts to further clarify our Penal Code more recently failed. But
majority legal opinions expressed maintain that current laws are still sufficient to permit
abortions done in good faith to benefit the client with no risk to the provider. Slight
ambiguities in the words may have resulted in negative perceptions. Perhaps medical schools
should help educate new doctors on the law. Surveys done by Reproductive Rights Advocacy
Alliance Malaysia (RRAAM) amongst doctors and lawyers have shown very poor awareness
and understanding of our abortion laws.