The abortion debate in Malaysia

When discussing abortion reform in Malaysia, the rhetoric is far from the “pro-choice” or “pro-life” dichotomy. The crux of the abortion debate – or the lack of it – is usually said to be religion, the belief that there is sanctity in all life, that a higher power gives life and is the only one that takes it away. The abortion debate instead, as in most of Southeast Asia, is usually approached through the consequences of not being able to obtain safe abortion services, seen in the emergence of underground abortion clinics and the baby dumping problem.

Abortion is technically legal under civil law to save a woman’s life or to preserve her physical and mental health, although regulated under the Penal Code, Section 312-316, originating from the British Empire’s Indian 1871 Penal Code criminalising abortion. Under shariah law, abortion is allowed to be carried out for a foetus under 120 days of gestation if the mother’s life is under threat or if the foetus is abnormal. With these restrictions, access to such services remain limited and voluntary abortions remain illegal. Even if the pregnancy resulted from rape or incest, this is sometimes not enough grounds to terminate the pregnancy as it does not threaten the mother’s life.

Nirmala Thapa, a factory worker from Nepal who was 24 years old at that time, became the first woman to be sentenced for abortion on Nov 12, 2014. Her case received significant media attention in Malaysia and Nepal, causing considerable controversy as she was tried under Section 315 of the Penal Code for an act done with the intent to prevent a child from being born alive or to cause it to die after birth. She was later exonerated of her conviction, and the charges against her physician were also dropped. In fact, medical practitioners in Malaysia have rarely been criminalised since the 1990s for carrying out termination services.

Nirmala is but one of the many migrant workers whose work permits would be revoked in the event of a pregnancy. An Indonesian domestic worker who could not obtain access to abortion services was sentenced to eight years in prison for baby dumping in hopes of retaining her job. The judge who ordered her to jail said, “Killing your own child will not solve your problems. Let this punishment be a lesson to you.” Hence, although abortion may not be as talked about, baby dumping cases often make headlines and there is little sympathy for infanticide, usually with extremely dismissive reactions online and little to no leeway given in court.

It is common for desperate college students wanting to conceal their pregnancies to be unaware of the harsh penalties that come with infanticide. A 19-year-old was charged for baby dumping with 12 years imprisonment after throwing her baby out of the window. Meanwhile, another 19-year-old whose baby was born prematurely and who buried it also received a punishment of 12 years’ imprisonment.

Abortion services are available in the private sector – clandestinely, of course – but at high cost. Due to socio-economic reasons, the online sale of illegal abortion pills has skyrocketed as a cheaper option for terminating pregnancies. As these pills are unregulated, there are significant health risks that come with misoprostol and mifepristone, which can also lead to offences under Section 312-316 of the Penal Code.

A woman in Kudat, Sabah, who was rushed to the hospital for allegedly taking 20 abortion pills, was immediately investigated under Section 315 of the Penal Code. A similar case took place with an Indonesian and Bangladeshi factory worker couple where the woman had a miscarriage after consuming the pills. She was rushed to hospital and the baby was stillborn. The couple was subsequently investigated under Section 312 of the Penal Code.

Some have called for the sale of abortion pills offering supervision for intake to be legalised as a way to prevent online sales, but this is seen as an instant fix for unwanted pregnancies, and abortions should only be handled by a medical practitioner.

Another popular way of indirectly approaching the abortion topic is through educating people about the “consequences”. Hence, abortion is the result of poor choices that the individual will have to bear.

Blaming women for a lack of knowledge about preventing pregnancies is how sex education continues to be taught. There is little said about their partners when they are criminalised for abortion. Partners are only held equally liable under Section 309 of the Penal Code as far as baby dumping is concerned, with the possibility of up to 20 years’ imprisonment.

It is safe to say that most mentions of abortions are only reports on the degree of punishment that accompanies the act. This finds support on national television, where every so often, images are shown of police raids of underground abortion clinics – unassuming shop lots filled with girls sitting around in shame. At other times, buried foetuses are featured as well, marking the spot as a crime scene. These regular displays of law enforcement provide effective proof that the girls have committed a crime in seeking an abortion.

There was a programme by Harian Metro, accompanied by ominous-sounding music, in which they went “undercover” to find out how easy it was to get an abortion, and how much it would cost. At one point, there was an exchange on how the clinics dealt with the illegal nature of abortions.

A: Jadi saya boleh ambil mayat bayi tu bawa balik?
B: Awak mana boleh bawa balik? Kita tanam. Kalau awak ambil bawa balik awak mesti buat laporan polis.
A: Jadi pihak awak yang akan tanam kan? Habis tu mayat bayi siapa yang aka tanam?
B: Ada orang dari hospital buatkan.

Medical practitioners are portrayed as having to deal with bodies – “mayat bayi” – that need to be buried in order to hide evidence of what is seen as inhumane because it is prohibited.

At the end of the interview, the video cuts to the title “Mudah gugur janin”, showing the model of a skeleton and a screen displaying an ultrasound of a baby. Family planning and national development go hand in hand in discussions of matters to do with contraception, fertility and abortion, thus immediately making it a sore spot, politically.

Decriminalising abortion and reducing restrictive legislation remains within NGOs and CSOs and far from the mainstream debate on the matter. Moving away from seeing abortion through the lense of law enforcement through the media might be a step in normalising discussions on the matter. However, as abortion is governed by the Penal Code, we will only be able to get a glimpse of the trauma and distress of dealing with unwanted pregnancies.

Yvonne Tan is part of Projek Dialog where this article first appeared.