Introduction
Malaysia is a country in Southeast Asia. Kuala Lumpur is the national capital, the largest city, and the seat of the legislative branch of the federal government of Malaysia. With a population of over 32 million people, Malaysia is the world’s 44th most populous country. It is multiethnic and multicultural; about half the population is ethnically Malay, with minorities of Chinese, Indians, and Indigenous peoples (Britannica, n.d).
In general, the issue of women’s rights in Malaysia is divided among the people across the peninsula. Although women’s rights in Malaysia in the past few years have advanced in a few areas, women in Malaysia are increasingly participating in the workforce and government. However, there has been no fundamental change in the status of women. Women in Malaysia still face many struggles that prevent them from obtaining many of their rights, such as the right to personal autonomy and the choice of abortion (Kim, 2021).
In spite of sustained advocacy from sexual and reproductive health (SRH) and human rights advocates, the issue of women’s rights to abortion which is the focus of this report is still very heavily restricted in Malaysia. Due to the social stigma and taboo surrounding the topic, most Malaysian women are not aware of when abortion is legal, and because of that, they tend not to seek abortion services in public sector health services and turn to clandestine abortion service providers, which most of them are unsafe as the procedure is mainly provided by providers who may not have the necessary skills or environment that conform to minimum standards to perform a safe abortion. According to reports from Confidential Enquiry into Maternal Deaths (CEMD), unsafe abortion accounts for one in five maternal deaths in Malaysia (Jegasothy et al., 2012; Tong et al., 2013).
National Law regarding Abortion in Malaysia
The law of abortion was established in Malaysia under the British Empire’s Indian 1871 penal code. The most relevant provision to be discussed of the penal code is Section 312 (Act 574) which 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” (Firzaa, 2019).
However, Section 312 laid down a few exceptions under which abortion is permitted: “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” (Firzaa, 2019). This provision says that under Section 312, there are two conditions under which abortion is considered legal in Malaysia. The first condition is that if the abortion is done by a doctor who genuinely thinks the pregnant woman’s life is at risk due to her pregnancy, she can terminate the pregnancy. The other condition is that if the doctor believes the pregnancy may harm the pregnant woman’s physical or mental state, the abortion can be carried out legally (Matdura, 2020).
Thus, the above indicates that the Malaysian women under the national law do not have the freedom of choice in case they want to have an abortion. Only the doctor can make that decision and only in limited cases where their life, physical and mental health are explicitly in danger.
Relevant Ratified International Instruments
Malaysia ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) in 1995. The ratification of this convention requires State Parties to take effective measures to eliminate all forms of discrimination against women within their legal and institutional frameworks, as well as, within their national policies and political patterns. The most relevant provision of this convention with regard to women’s right to abortion are Articles 12 and 16 of the convention. Article 12 of CEDAW requires States to take all appropriate measures to ensure women’s right to access health services including those related to family planning. Further, Article 16 of CEDAW requires states to take all measures to ensure that women have legal and accessible ways to control their reproductive rights. Since this article grants the right to control one’s reproductive organs and have access to things necessary to this end, the CEDAW Committee has interpreted it as requiring State Parties to grant the right to abortion access to women (Hunt, 2018). In addition to these obligations, the CEDAW Committee General Recommendation No. 24 has recommended State Parties to amend their legislation that criminalises abortions and withdraw punitive measures imposed in case of abortion (CEDAW Committee A/54/38/Rev.1, chap. I, 1999).
Access to Abortion in Malaysia
Malaysia faces approximately 90,000 abortions every year, according to a report by the Federation of Reproductive Health Associations Malaysia (FRHAM; 2015). Despite the large number of abortions, women’s access to legal abortion services in Malaysia faces several obstacles, the most important of which are unclear laws and policies regarding the provision of legal abortion. This causes some healthcare providers to be reluctant to widely interpret laws and policies and therefore not offer abortions for fear of prosecution. About 43 percent of doctors and nurses in Malaysia are unaware of the legality of abortion according to a survey in 2007 (Low et al., 2014; Archer, 2018). More than 80 percent of doctors were unsure about the legality of abortion, in cases of rape (Tong et al., 2013). It is necessary to note that before 1989, many medical practitioners were prosecuted and punished for performing abortions, while such cases were not brought to court after 1989 (Archer, 2018). However, even so, it is known that most doctors take a stand ‘‘pro-life” when it comes to abortion, and among the medical professionals who provide abortion services privately, albeit not illegally, few are willing. Publicly recognised as “abortion providers”, due to the stigma attached to it. This stigmatisation is essentially perpetuated by the State refusing to raise awareness on issues which concern a woman’s reproductive health. Additionally, let alone initiating government-funded campaigns; it does not help that all advertisements advising women on abortion practices and procedures are also banned in Malaysia (Whittaker, 2010; Syadza, 2018 ).
Another issue which contributed to the inaccessibility of abortion services is the Guideline on Termination of Pregnancy in Government Hospitals (TOP), which was published by the Ministry of Health Malaysia in 2012. These guidelines in TOP have laid down that the procedure for medical abortion is allowed until 22 weeks of pregnancy (Malaysian Ministry of Health , 2012). This is a very important clarification for the medical practitioners, since Section 312 of the penal code does not explain or specify ‘when’ nor at what stage of pregnancy can a medical practitioner perform a legal abortion. However, these guidelines in many ways had further restricted the accessibility of abortion for Malaysian women specifically in governmental hospitals. The guideline has stated that in order for women to have an abortion at a government hospital, the presence and approval of two medical practitioners is required. Furthermore, abortion services at government hospitals are only permitted to married women, and women who want to have abortion services have to obtain spousal approval, even though these requirements are not specified under Section 312 (Malaysian Ministry of Health, 2012; Tong et al., 2012).
Thus, due to the fact that abortion access in the public sector is very restricted and limited, most women have to resort to private clinics for abortion services, which are often expensive. There are approximately 240 private clinics offering abortion facilities to women in Malaysia; however, most of them are not inspected for safe abortion services and treatment. Moreover, these facilities are not accessible to women who cannot afford between US $60 to $800, depending on the stage of pregnancy (Archer, 2018).
As a result, women have to resort to other economic substitutes if they cannot afford an abortion in private clinics. Medical abortion pills, such as ‘mifepristone’, are one example. However, they are not easily accessible to women in Malaysia, as they have not been registered by the government (Archer, 2018). Therefore, many women are known to have ordered such abortion pills online in the past. In 2017, the Ministry of Health issued a statement whereby all individuals purchasing abortion pills online would be prosecuted (Archer, 2018). With such increasingly restrictive laws and measures by the government, Malaysian women, until today, do not have easy access to abortion services. Some of them are forced to continue their pregnancies, although the circumstances for requesting an abortion may be necessary in case of rape, underage pregnancy, or fetal impairment ( Kho, 2021). Forcing a woman to complete her pregnancy against her wishes often results in dangerous results in Malaysia, such as child drowning. Child dumping is also a serious problem (Subramaniam and bin Islam, 2021). From 2010 to May 2019, there were a total of 1,010 recorded cases of child dumping. Most of these children were left near residential areas, in toilets, and rubbish bins (Subramaniam and bin Islam, 2021).
Conclusion
Women’s access to safe, legal abortion in Malaysia will not be reached until the Malaysian abortion law is liberalised and gives women the full right to decide whether they want to carry a baby. Amending the national law in this way is needed not only for Malaysians to comply with their obligation under international law but also to prevent women’s death that is caused each year due to unsafe abortions and will stop the practices of dumping babies caused by force continuing pregnancy.
Moreover, the lack of awareness campaigns, regulatory bodies, and policies for monitoring and evaluating reproductive health policies in Malaysian legal systems are major issues Malaysia needs to take action toward to ensure women’s accessibility to safe abortions.
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