ABORTION- AN INSIGHT INTO SECTION 312 OF THE PENAL CODE

Abortion is defined as the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman’s uterus whereas safe abortions were defined as those that meet legal requirements in countries with liberal laws, or where laws are liberally interpreted such hat safe abortions are generally available.  However, in Malaysia the law on abortion would not enable one to terminate pregnancy as wished as our laws only permits abortion under certain circumstances that will be further discussed below.

The original the law on abortion in Malaysia stated that abortion can only be carried out to save the woman’s life and if the abortion is not performed for that purpose, the doer shall be punished with imprisonment of up to three years and fine or both. In the event which the woman is quick which child, the doer will then be imprisoned up to seven years and be liable to fine or both. Quickening happens at different periods of pregnancy in different women but the time duration is usually about the 15th or 16th week after conception.

Amendment was made in the year of 1989 to extend the section to allow medical practitioners who are of the opinion that the pregnancy might bring upon injury to the mental or physical health of the women.  This amendment to the law allows pregnancy to be terminated in the event which the pregnancy brings harm the mental health of the mother, namely depression or trauma that might arise from unwelcomed sexual intercourse.

According to Parliamentary debates, as recorded in the parliamentary debates, the change of law was initiated by Dato’ Dr Siti Zaharah who was one of the Deputy Ministers at the Prime Minister’s Office. She proposed that it’s essential that amendments are made to the law due to a rapid rise in sexual offences, whereby in 1988, there were 611 rape cases as opposed to only 368 cases in 1980. The increase in the percentage of the offences lead to a rise in the number of victims suffering from those malicious, sex offences. Hence, she proposed that it would wise to revise the act in order to protect the rights of victims suffering from the crime to improve to quality of their lives after the painful occurrences. 

As per the case of Public Prosecutor v Dr Nadason, the accused’s patient, 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. However, it was held the accused had not given reasonable thought and had not taken enough steps to examine the woman further. He was imposed a fine of RM 3500 and was imprisoned for four months.   It is hereby evident that the law of Malaysia strictly permits the usage of the liberty of Section 312 of the Penal Code only when the life of the woman is endangered and if there is a possibility that termination may be avoided, it would mean that the code has been violated.

Although abortion is unlawful in Malaysia, abortion is allowed upon request during the first 24 weeks of pregnancy in Singapore. Legal abortion is restricted to Singapore citizens, spouse of Singapore citizens and women that have resided in Singapore for a minimum duration of four months.  Before 1969, abortion legislation in Singapore was derived from British law and abortion was permitted if it was carried out with good faith to save the life of the pregnant woman.  The law enacted requires consent of the women if she is married and consent from parents of unmarried women under age of 18. The Abortion Act 1974 further liberalizes Singapore’s abortion law as the act says that no one can be found guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered doctor acting on the request of a pregnant women with her written consent.  Mandatory counselling is carried out but it is not applicable to certain women, namely foreigners, rape victims, those who passed PSLE or those who have three or more children.

    Abortion is legal in England, Wales and Scotland when two registered doctor certify that the situation meets the requirements set in Abortion Act 1967. The consent of spouse is not required.  However the Abortion Act of 1967 permits abortion if two registered doctor are of the opinion of the pregnancy might harm the mother physically or mentally or the child might be born with abnormalities. Counselling for mother is provided but is not mandatory.

In present times as it was it the past, many people are not aware of the amendments that have been made to Section 312 of the Penal Code. Yet, the access to affordable, safe abortions remains a huge issue in Malaysia, even for those women who satisfy the legal criteria for abortions.  People still believe that abortion is totally illegal and they opt to undergo abortion secretly in private clinics. It has been reported that obstetrics and gynaecology clinics in Klang Valley charge between 1200 Ringgit Malaysia to 2500 Ringgit Malaysia for abortion service.  Many private clinics give the impression that abortion is illegal without saying those actual words with the intention to exploit people with high charges. Dr. Choong Sim Poey said that there was lack of awareness of the provision of section 312 of the Penal Code in the society and some doctors were making use of their discretion to overcharge.  Public misconception with the misrepresentation of the media has contributed in the skyrocketing charges on abortion service by some doctors. In a survey conducted by RRAAM showed that out of 120 doctors and nurses, 43% of them responded incorrectly about the legalities of abortion in Malaysia.  

Most Malaysian are against abortion as the mainstream religions of Malaysia do not support the act of pregnancy termination. For example, Islam regards abortions carried out after four months of pregnancy as “haram” as Muslims are of the belief that the foetus has become a living soul by them. Buddhism does not support abortion as well because it violates one of the five perceptions of virtue, which is do not kill. Abortion, in the view of a Buddhist, is considered as a form of murder and it may still be seen as a deed with negative moral or karmic consequences. In the Holy Bible of Christian, the Hebrew word yeled is usually used to refer to children - a child, a boy, etc. but in Exodus 21:22, it is used of a child in the womb. Therefore, a foetus, in the view of Christianity, should

     As a conclusion, the fact that Malaysian apparently has a little known provision that allows for abortions under certain circumstances, even though it is subjected to a clause which qualifies the legality of the abortion, means that no matter what opinions one may have of the ministers of parliament, the lawmakers have already put in place a system that allows women access to safe and affordable abortions under certain circumstances. However, the execution of the law is not entirely complete. Many women went for unsafe abortion in private clinic because there is no abortion service accessible in government hospital, especially for those who did not meet the requirement of legal abortion under the provision. For example, teenage girl who was pregnant due to pre-marital sex usually go for unsafe abortion in private clinic or even lead to the issue of baby-dumping. However, further legalizing abortion in Malaysia may require more effort to be made as most of the Malaysian is still against abortion.