Written by: Averroes
(1.0) Introduction
Many experts and interested parties are advocating that public clinics and pharmacies should make abortion pills accessible and legally registered. Many concerns had raised over this matter, including mix reactions from social and religious apprehension.
In Malaysia, there is no clear guideline or policy or abortion by the Ministry of Health, especially in the TOP Guidelines 2012, the practice of abortion depends on the views of medical practitioners in health institutions. There are abstract laws on this matter, from common law and precedents.
Misoprostol and Mifepristone pills are not registered with the Drug Control Authority of Malaysia. Those pills are frequently used, rather than visiting the hospital for surgery. Teenage girls and women would endure judgmental doctors or healthcare providers. It is also to avoid detection from the authorities and family.
Misoprostol for now is only registered for the use as a treatment for gastric ulcers. Moreover, abortion services cannot be advertised as under the Medicine (Advertisement & Sale) Act 1956.
Malaysia is a member of the United Nations General Assembly Special Session (June 1999) and pledged to the Convention on the Elimination of Discrimination against Women (CEDAW) and the International Conference on Population and Development (ICPD) Programme of Action.
This is to ensure abortion is safe and accessible to women.
(1.2) Why the concern?
(1.2.1) Medical complications and non-supervision
According to Reproductive Rights Advocacy Alliance Malaysia (RRAAM), the hotline coordinator Dr Sim (Dr. Sim) Poey Choong agreed with the Health Ministry on the issue of overdose.
The Health Ministry provides that the overdose of abortion pills are one of the risks, however it is suggested that this could not be a valid reason to prohibit the sale of abortion pills. Instead, supervision from doctors are required.
Last year, on 27th December, the Health Director-General Datuk Dr Noor Hisham Abdullah commented that there is an increasing trend of online banned abortion pills. Any young person intending to solve unwanted pregnancies would know of the source online.
These banned substances include (poses serious health risks without supervision and overdose - though, its effectiveness rate for complete abortion is up to 95% in early pregnancies);
(i) Misoprostol (was legal until product's registration cancelled and sale banned in 2016)
(ii) Mifepristone (RU486, administered before misoprostol)
Apart from possible health risks, without the supervision from doctors and overdose, various ailments would follow. These are the uterine ruptures, abnormal bleeding and fatal infections if left unattended. Moreover, those selling the pills online remain anonymous and it would be taxing to find and to take legal action for the quality or lethality of the pills sold.
Hence, could online sales of abortion pills and consumption without prescription by doctors be mitigated by having public clinics allowing easy access?
(1.2.2) Religious, social and political stigmas
Politics of religion and race always stands in between. According to Head Associate Professor Dr. Nobaya Ahmad of UPM said that, permitting easy access encourages couples to practice unprotected sex and find quick ways to rid of unwanted pregnancies.
More couples would be involved in sexual activities and consequently become pregnant. The fetus are aborted and person with plans to abort would buy these illegal pills without thinking about the health implications onto them.
Not many societies, communities or religions tolerates abortion. Abortion could only be done if, the omission of abortion would cause detrimental effect on the woman's health.
Under Syariah Law, abortion is only allowed and applicable to Muslims, if the Fatwa recognizes it. Abortion is allowed if the fetus is under 120 days of gestation, if the mother's life is under threat or if the fetus is abnormal.
According to Muslim Scholars, the fetus is considered alive from the beginning of pregnancy and his life is respectable in all stages especially after the soul is breathed into the fetus (after the fourth month). Scholars hold view that induced abortion is prohibited except with legitimate reasons, before and after the soul is breathed into.
(1.3) To be or not to be banned
Supposedly, both Misoprostol and Mifepristone are safe, unless advice are approved by established medical authorities. This is in line with the World Health Organisation, the International Federation of Gynecology and Obstetrics, as well as the International Planned Parenthood Federation.
The Health Ministry also acknowledged those international guidelines from those international bodies in 2012. Despite the acknowledgement, the Ministry did not take reasonable or rational steps to register the two pills. Hence, the existence of the sales online.
There is a middle-ground as whether to allow public pharmacies or clinics to make abortion pills open to the community or not.
(2.0) Legal analysis (legality of abortion in Malaysia)
We shall adumbrate a few case laws and provisions related to abortion before arriving at a specific conclusion
(2.1) Section 314 of the Penal Code
In Mary Shim v Public Prosecutor [1962] 1 MLJ 132, the appellant was convicted under section 314 of the Penal Code, with an act and intent to cause miscarriage of Lily Tan, that caused the death of Lily Tan. The accused caused abortion by inserting a stick into the womb of Lily Tan.
She later died from inflammation of the uterine with septicaemia. Was the death by the stick insertion or uterine inflammation?
Court decided that the mother was an accomplice and wanted to abort her child too. Hence the accused was guilty for abortion when she inserted the stick which consequentially caused the inflammation of uterine. There was intention
The offence under section 314 has a heavier sentence which is ten years as compared to section 312 of the Penal Code as described below.
(2.2) Section 312 of the Penal Code (Year 1958)
In Munah binti Ali v Public Prosecutor [1958] 1 MLJ 159, the accused was alleged to have voluntarily caused a mother to miscarriage, without good faith of saving the life of the mother, which is punishable under section 312 of the Penal Code.
Section 312 provides an exception that, it is not an offence of the medical practitioner registered under the Medical Act 1971 who terminates the pregnancy of a woman if... of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the woman, injury or physical health of the pregnant woman, greater than if the pregnancy were terminated.
The court held that the President was satisfied that there was evidence that the accused used an instrument on the woman which caused the miscarriage and substantial hemorrhage. However, his lordship was not satisfied that the woman was pregnant at the moment.
The accused was then charged for attempted miscarriage instead under section 511 of the Penal Code. In order to satisfy section 312, there needs to be the child inside the womb.
The accused was convicted under section 511, since there was no baby and there was an attempt. An attempt is a criminal offence itself. The case referred to Peggy Anderson (1928) JC 1, where one cannot cause abortion if the womb be empty, which in view taken was an attempt instead.
Section 511 is fulfilled with the following statutory elements;
(i) There must be an attempt to commit an offence punishable by the Code or any other written law
(ii) There must be an act towards the commission of the offence
Applying these elements, the accused did insert an instrument to cause abortion or miscarriage of child under section 312 and caused hemorrhage. It was an act towards and not the actual offence, because the baby did not exist yet in the womb.
(2.3) Section 312 of the Penal Code (Year 1985)
In Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122, the accused was an obstetrician and gynaecologist was charged under section 312 of the Penal Code. To fulfill the statutory elements, three of them must be fulfilled which are;
(i) The woman who was caused miscarry was pregnant
(ii) The accused voluntarily caused her to miscarry
(iii) The miscarriage was not caused by the accused in good faith for the purpose of saving the life of the woman
The accused was fined $3,500, in default is four months imprisonment. The court focused on the third element (iii) where regardless of support and approval by Prof. Sinnathuray, the abortion was not supported by reasonable explanations.
No reasonable person, whether a qualified surgeon or not would perform abortion in the circumstances of this case by taking the law at his own hands. Abortion is a serious matter, it should be done as a last resort to save the life of a woman or to save a woman from mentally wrecked.
(2.3) Abortion allowed, but the method is negligent and in dire situations
In Norizan bt Abd Rahman v Dr. Arthur Samuel, the mother discovered that she was pregnant again and requested the defendant an obstetrician and gynaecologist to terminate the pregnancy and to insert an intrauterine contraceptive device (ICUD).
However, during procedure, the plaintiff's right uterine wall and right artery of the uterus necessitated an emergency life-saving operation to remove womb and right ovary. The plaintiff sued that defendant failed to advise her beforehand of risks of procedure.
The effect of procedure was that, she could no longer bear children, suffered pain and emotional distress and lost sexual intimacy with her husband. The operation caused multiple ugly scars and degloving injury.
The court held and allowed the claims amounting the plaintiff RM220,000 in general damages and RM3,000 special damages with interest on both sums. Based on balance of probabilities, negligence had clearly been established which was not in accordance with the standard of care expected.
(2.4) General Comments
Abortion is allowed in Malaysia unless it involves health risks and life at danger or peril. Though, those performing the abortion must attain the consent of the mothers as well, or their punishment would extend to 20 years imprisonment under section 313 of the Penal Code.
Even when abortion done, it has to be reasonable and done on good faith. That would mean, the doctor or medical practitioner must conform to the standard of care, to ensure that the abortion saves the woman, not further cause harm to her.
(3.0) Solutions
Solution 1 (Availability of pills at clinics and pharmacies): Having CyberSecurity Malaysia to hunt down and block online sellers, while the Customs Department identifying and confiscating abortion pills are obsolete. There will always be online sources of underground methods to procure abortion pills.
If easily accessible through public clinics or pharmacies with doctors regulating the use and access, then there would no longer be online sales. The risk of health complications are reduced.
Solution 2 (Differentiate between morals and logic): The policies of abortion pills should be based on the Penal Code, not religious or moral conscience. According to All Women's Action Society program and operations manager, Nisha Sabanayagam stated that, online sale of pills is a veiled way to avoid social ostracism or scrutiny. Abortion should not be a taboo topic, especially when it affects the lives and health of the woman at stake.
Conspiracy and hoaxes concerning contraceptive and sexual rights must be extinguished. It is part of human basic rights and needs, particularly women and girls. These groups must be given the appropriate attention in terms of emotional, physical and financial support, not discriminated.
Solution 3 (Laws): Laws should be amended or created in order to cater to the problem of abortion and its related instruments, including the said pills. According to article 5(1) of the Federal Constitution, where "no person shall be deprived of his life.."
This should be taken into a prismatic interpretation and not be read pedantically as stated by Raja Azlan Shah in Dato' Menteri Othman bin Baginda & Anor v Dato' Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29.
Women are free to express rights over their bodies, which includes unwanted sexual activities, without their consent or defective or the absence of contraceptives. They should also be allowed the option of safe and medically supervised abortion, especially when it encroaches upon their mental and physical health.
Tweaking laws and policies for additional numbers of counsellors, social workers and amenities for childcare, allowances for single mothers and tax incentives for employers supporting childcare is important. In turn, the number of abortion would decrease.
The ban on Misoprostol and Mifepristone should also be revised.
Solution 4 (Sex Education): Campaigns and educational drives of reproductive rights should be made on large platforms and in different languages. This emphasis could be done on the internet, since it is a great and feasible tool to spread awareness.
Reproductive rights involve both genders, men and women. The society should be taught about the consequences and what are the outcomes within a sexual relationship. The root cause or problem of unwanted pregnancies comes from rapists, forced marriages or migrants and sex workers exploited by irresponsible men. It is unfair to put the blame on women since men contribute to the problem.
Dr. John Teo, medical committee member of the Federation of Reproductive Health Association of Malaysia, explained that "behind every abortion is an unplanned pregnancy. The usage of contraceptive clearly prevents unplanned pregnancy and, thus, abortion.
In Malaysia, our use of modern contraceptive method is neglected at 35% over the past few decades.
Vice President of Muslim Doctors Association, Dr. Wan Julia Sham Ariffin states, prevention is better than cure. She disagreed that both online sale and availability at the counter of the abortion pills should be a solution.
This includes educating men of the responsibilities and liabilities that they carry when unwanted pregnancies occur. Prevention is better rather than looking at the problems which had already occurred.
(4.0) Conclusion
To conclude, abortion in Malaysia is allowed if it adversely affects the well-being of the mother. There needs to be better reproductive education for both boys and girls and that our abortion practices should be safe, including the possible uplifting of the misoprostol and mifepristone pills. Our laws and policies as well as social-cultural negative perceptions should be something to consider.
(5.0) References
Low, W., et al. (2014) Access to Safe Legal Abortion in Malaysia. Asia-Pacific Journal of Public Health. pp 1-6, Retrieved from, : https://www.researchgate.net/publication/269178880
Husni, A. (2013) Abortion in Malaysian Law: A Comparative Study with Islamic Jurisprudence. Advances in Natural and Applied Sciences, 7(1): 39-50, Retrieved from, http://www.aensiweb.com/old/anas/2013/39-50.pdf
Wen, T. et al. (2012) Exploring pregnancy termination experiences and needs among Malaysian women: A qualitative study. BMC Public Health 2012, 12:743, Retrieved from, https://bmcpublichealth.biomedcentral.com/track/pdf/10.1186/1471-2458-12-743.pdf
Yusof, T. (2020, January) Expert: Find solution to curb rise of online abortion pills. Retrieved from, https://www.nst.com.my/news/exclusive/2020/01/553837/expert-find-solution-curb-rise-online-abortion-pills
Yusof, T. (2020, January) 'Make abortion pills available at clinics, pharmacies'. Retrieved from, https://www.nst.com.my/news/exclusive/2020/01/553841/make-abortion-pills-available-clinics-pharmacies
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