Pregnancy is welcomed when a woman is emotionally and financially prepared to accept a child into her life. The failure of contraception or rape is just two of the many causes of unintended pregnancy that affect millions of women every year throughout the world. Unwanted pregnancies leave women with three choices:
- safe abortion
- adoption or
- embracing parenthood.
Abortion is the termination of a pregnancy by medical or surgical means that result in the death of the developing foetus or its expulsion from the pregnant woman’s body. Some persons who find themselves pregnant without planning to do so may consider having an abortion.
Many people in Malaysia mistakenly believe that abortion is against the law, primarily because of the social stigma that surrounds the topic. Many public discussions on the abortion issue sparked ethical, moral, religious, and legal concerns. People tend to fall into one of two camps when discussing abortion:
- those who are “pro-choice”, or in favour of a woman’s right to make her own reproductive decisions, and those who are
- “pro-life”, or opposed to abortion and view it as the cruel murder of a defenceless human being.
in this article we will discuss the legality of having an abortion in Malaysia.
Laws under the Malaysian Penal Code
Section 312 of the Penal Code, which criminalises abortion in all forms, is the primary legal authority in Malaysia regarding the topic of abortion. However, the Penal Code was revised in 1989 to make an exemption for safe and legal abortion to save the mother’s life and preserve her physical and mental health.
Section 312 states that:
“Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to 3 years or with a fine or with both, and, if the woman is quick with the child, shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine.”
Exception – 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 a medical practitioner believes, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, more significant than if the pregnancy were terminated.
Where abortion stands under the Malaysian law
Abortion, whether voluntary or induced, is against the law in Malaysia. However, Section 312 does have a few carve-outs. According to Section 312, abortion is legal if a medical professional has a good faith belief that the mother’s life or her mental or physical well-being would be jeopardised if the pregnancy continued.
Absent of these grounds, anyone who induces a woman’s abortion with her consent faces up to three years in prison and/or a fine. The mother and doctors may face up to seven years of imprisonment and a fine if they induce labour before the end of the fourth month of pregnancy (also known as “quick with a child”). Meanwhile, Section 313 of the Penal Code stipulates that those who induce an abortion without the mother’s consent may face up to twenty years in prison and a fine.
Only a registered medical practitioner has the authority to determine “in good faith” whether the pregnant woman’s life or health is at risk if she persists with the pregnancy. The medical practitioner must conduct a comprehensive evaluation to determine if the mother’s physical and mental health is at risk during this pregnancy. The decision to abort the pregnancy must be made in good faith, with the mother’s health as the top priority.
Public Prosecutor v Nadason Kanagaligam  2 MLJ 122
An obstetrician was found guilty of performing an abortion not in good faith to prevent a pulmonary embolism in a pregnant patient with enlarged varicose veins. At the time, she was 16 weeks along in her pregnancy. Despite the defendant’s claims that he was acting in good faith by performing the abortion to save the woman’s life, the court found that he failed to provide the matter reasonable deliberation and had not taken sufficient steps to examine the patient further. Court ruled that there was no proof that the patient’s life was at risk or would have been in danger had she continued with the pregnancy.
Does the law allow abortion under exceptional circumstances?
Section 315 of the Penal Code states that:
“whoever before the birth of any child does any act to thereby prevent that child from being born alive, or cause 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 to save the life of the mother, be punished with imprisonment for a term which may extend to ten years, or with fine, or with both.”
Technically, abortion remains illegal in Malaysia even if the pregnancy results from rape or incest, foetal impairment, or other socioeconomic factors. Consequently, in Malaysia, a woman cannot or does not have the option to have an abortion on any other exceptional grounds unless, following an evaluation by a registered medical practitioner, it is determined that the pregnancy poses a grave risk to the mother’s life, as permitted by Section 312 of the Penal Code.
When can legal abortion be performed?
Abortion is defined as “the expulsion or removal of an embryo or foetus from the uterus at a stage of pregnancy when it is incapable of independent survival (500gms or 22 weeks gestation)”, according to the 2012 Guidelines on Termination of Pregnancy (TOP) issued by the Ministry of Health of Malaysia to all Government Hospitals in the country.
Within the purview of the guideline, the pregnancy termination is confined to the removal of an embryo or foetus when the gestational age is less than 22 weeks, or if the gestational age is unknown, abortion is said to be performed when the estimated weight of the foetus is less than 500 grammes.
The National Fatwa Council of Malaysia has issued a fatwa allowing abortions up to 120 days of gestation for Muslims in Malaysia if the mother’s life is at risk or if the unborn child has a deformity.
It is unclear from the Penal Code at what point in a pregnancy a doctor may legally terminate the pregnancy. However, most approved clinics and government hospitals in Malaysia offer terminations up to 12 weeks in length under the TOP. After the 22nd week of the pregnancy, the foetus is legally considered a human being, and abortion of the pregnancy could be illegal. Only if the mother’s life is in grave danger would a termination of pregnancy after the 22nd week be considered.
Development of abortion laws in Malaysia
A Nepali lady, Nirmala, had an abortion when she was six weeks pregnant in 2014 because she was worried about losing her job in a factory. She was arrested and charged with “an act done with intent to prevent a child from being born alive” (Section 315 of the Penal Code). The doctor claimed that he had taken into account the possibility that Nirmala might lose her job, be forced to pay compensation to her employer and be deported to her home country if her pregnancy was discovered. The doctor decided that Nirmala had a legal right to an abortion, and that decision was made in good faith.
In the court proceeding, Nirmala was accused and convicted without legal representation, despite the argument presented by the doctor. She then became the first woman in Malaysia to be imprisoned for having an abortion, receiving a sentence of one year in jail because of the crime. Her case received great attention from women’s rights advocates and movements who fought to legalise abortion.
The conviction was overturned, and she was released and acquitted after an appeal was filed by the pro-bono legal team. An application was made in High Court to reconsider and review the law of abortion in Malaysia. The court ruled that there was not enough evidence to warrant further investigation. Many people have voiced their disapproval of the case, claiming that the abortion rules in Malaysia are still unclear and not being consistently enforced.
From the above-mentioned two court cases, it can be deduced that Malaysia’s abortion laws are pretty restrictive, and many Malaysians, including healthcare professionals, believe that abortion is illegal under all circumstances. This is because, in a religiously conservative nation like Malaysia, the topic of abortion is highly taboo if brought up in a conversation. A lack of public education regarding the legal implications of abortion in Malaysia forces the majority of women with unwanted pregnancies to resort to back-alley abortions, which are likely to be risky and unsafe. However, despite the restrictive laws, it must be understood that women still have the legal right to abortion as provided under the exception of Section 312, where abortion would be lawful if performed by a licensed medical practitioner in good faith to preserve the physical and mental health of the mother.