Based on a leaked draft opinion allegedly written by Justice Samuel Alito, it seems that the U.S. Supreme Court is poised to strike down the decisions made in the landmark cases of Roe v. Wade and Planned Parenthood v. Casey on abortion. If the court goes through with this decision, it would end the half-century long constitutional protection of abortion rights in America and allow each state to decide whether to restrict or ban abortion. The issue on abortion is a sensitive one. It has thus understandably sparked intense discussion online. Although Malaysian law will remain unswayed by this legal development in America, it is prudent to note that abortion is a stigmatised topic in Malaysia as it rife with ethical, moral and/or religious connotations. Due to the lack of open discussion on the topic, the general belief is that abortion is illegal and is thus not allowed in Malaysia. This is however a misconception. As such, what is the Malaysian stance on abortion?
Firstly, what is abortion? Abortion is the expulsion of the human foetus prematurely (i.e. before it is yet capable of sustaining life). Abortion is governed by s312 to s316 of the Penal Code (“PC”). However, the word ‘abortion’ is not used in our legislation. Instead, the terms ‘miscarriage’ and ‘termination of pregnancy’ are used.
As per s312 PC, 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 explanation to this section states that a woman who causes herself to miscarry falls within the meaning of this provision as well.
For context, when a woman is ‘with child’, it means that gestation has begun. On the other hand, a woman is ‘quick with child’ when the motion of the foetus is felt by the mother (i.e. the woman is in an advanced stage of pregnancy).
With this in mind, s312 is fulfilled if someone has:
- Voluntarily caused a woman with child to miscarry; and
- Said miscarriage was not caused in good faith to saving the life of the woman.
S313 PC also makes the causing of a miscarriage without a woman’s consent punishable while s314 PC covers death caused by intent to cause miscarriage. Besides, an act done with the intention to prevent a child from being born alive or to cause it to die after birth is punishable as per s315 PC. On the other hand, if anyone causes the death of a pregnant woman which amounts to culpable homicide, and by extension causes the death of a quick unborn child, they shall be punished under s316 PC.
Although these sections exist to penalize abortion, it should be noted that s312 allows a medical practitioner registered under the Medical Act 1971 to terminate 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.
As such, the termination of a pregnancy is allowed under any one of the following circumstances:
- There is a risk to the life of the pregnant woman;
- It is injurious to the physical health of the pregnant woman; or
- It is injurious to the mental health of the pregnant woman.
Whether any of these conditions are met is completely up to the discretion of the medical practitioner since the Penal Code does not define the meaning of ‘risk to the life of the pregnant woman’, or ‘injurious to the physical or mental health of the pregnant woman’. So in theory, if a rape victim becomes pregnant due to said rape, and said pregnancy causes her mental anguish, a medical practitioner may terminate the pregnancy as it is injurious to her mental health.
In conclusion, although the Penal Code places restrictions on abortion, abortion is indeed allowed if there is a risk to the life of the pregnant woman, it is injurious to the physical health of the pregnant woman or it is injurious to the mental health of the pregnant woman. However, whether these exceptions should be strictly or liberally interpreted in Malaysia is still up for debate as it is ultimately a matter steeped in personal belief.
