Unfinished Business with Abortion Rights
Authored by: Belinda Chow Jia Hui
Edited by: Aisha Husna binti Hapidra and Malcolm Gan
I. General Overview of Abortion
This month, THURights with HaKita focuses on one of the most controversial topics of discussion; The Right To Life and abortion. We were pleased to have Miss Lahvee and Miss Laxmi, both of whom are passionate about Medical Law and raising awareness of women’s right to abortion.
Until the end of the 19th century, abortion was legally prohibited in the majority of countries around the world. Imperial countries played a crucial role as sources of abortion laws, which include European countries such as Britain, Italy, Portugal and France. All of which prohibited abortion in their territories. Abortion was restricted on three main grounds:
1. The protection of women by regarding abortion as dangerous.
2. Abortion was considered a sin or transgression of morality.
3. To protect the life of a foetus under all or certain circumstances.
There are two methods of abortion which are:
1. Medication abortion: the use of pills and medicines to end the pregnancy.
2. Surgical abortion: undergoing a medical procedure to remove the foetus and pregnancy materials from the uterus.
II. Right to Abortion under International Law
According to the World Health Organization (WHO), abortion is regarded as a common health intervention that is safe to conduct using methods recommended by WHO under professionals' assistance given that the methods are appropriate to pregnancy duration. Although there are no international instruments directly addressing the right to abortion, states are still obliged to respect, protect and fulfil the right of everyone to sexual and reproductive health, which includes having access to abortion care if the pregnancy would result in the woman experiencing substantial pain or suffering or if the pregnancy itself places her life or health at risk.
The European Convention on Human Rights (ECHR) laid down that an unborn child is disregarded as a person protected under Article 2 of ECHR as it would implicitly limit the rights and interests of a pregnant woman. However, the ECHR did not rule out the possibility that safeguarding the foetus' right to life can be extended under certain circumstances. The court had distinguished between said safeguards and the right to life. Nonetheless, the court of ECHR does not regard the unborn as a holder of the right to life but as a beneficiary of some safeguards under certain circumstances.
The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to life under Article 6(1). However, it is rejected that the said right extends to prenatal life. The document's drafters had specifically rejected the proposal to amend the said article to include "the right to life is inherent in the human person from the conception moment". This is to protect pregnant women from being exposed to the risk of death from unsafe abortion due to restrictive abortion laws. It is decided in K.L. v Peru that the denial of therapeutic abortion constitutes a violation of the women's right to not be subjected to cruel, inhuman or degrading treatment if the continued pregnancy would pose a significant risk to her life and mental health.
In this article, we shall analyze and observe the legal framework for the right to abortion in several jurisdictions, such as Malaysia, Singapore, and Canada.
III. Right to Abortion in Malaysia
The Health Ministry of Malaysia published the Guideline of Termination of Pregnancy (TOP), defining abortion as removing or expulsing an embryo or foetus from the uterus at the pregnancy stage during which the foetus is incapable of independent survival. Usually, up to 22 weeks gestation where the foetus weighs around 500 grams.
In general, voluntary abortions are illegal under Section 312 of the Penal Code ('PC'), which criminalizes any person, including the pregnant woman herself, from voluntarily causing a miscarriage. This is punished with imprisonment that may extend to 3 years or a fine or both. However, this section does not extend to medical practitioners that caused miscarriage in good faith if the pregnancy continuance would risk the woman's life or damage her mental or physical health.
Section 315 of the Penal Code laid down the exception that abortion is lawful if it is done to save the mother's life. However, the written consent of the mother must be obtained. In cases involving Muslim couples, it is crucial to recognize that the husband's consent holds significance and must also be taken into account. In Malaysia, abortion is prohibited when the pregnancy resulted from rape, sexual assault, or for socio-economic reasons, as these grounds were excluded under the provision. Health professionals are also allowed to refuse to terminate a pregnancy on the grounds of personal values according to Section 312 of Penal Code or religious beliefs.
Nevertheless, a confusion remains regarding which expert opinion should be relied upon when determining whether a particular condition poses a threat to the life of a pregnant woman if she carries a pregnancy to term. The court’s own perception of severity played a major role in its verdict in the case of Public Prosecutor v Nadason Kanagalingam, rejecting both the accused and the court’s expert testimonies as to the necessity of the induced miscarriage to save the 14-weeks pregnant woman’s life. Additionally, anyone who assists or causes a voluntary abortion would also be held criminally liable under this section. In a similar case, Public Prosecutor v Wong Ah Kean, it was established that a clinic assistant played a role in causing the miscarriage of a woman who was three months pregnant and was sentenced to two years of imprisonment.
In cases where abortion is induced without the woman's consent or with the intention to cause her to miscarry which subsequently lead to her death, the offender can be held liable under Section 313 or Section 314 of the Penal Code. It becomes irrelevant whether the offender was aware that their act would result in the death of the woman, as explained in Section 314 of the Penal Code. A clear example of this can be seen in the case of Mary Shim v PP, where the accused was found guilty of causing a miscarriage by inserting a stick into the pregnant woman's womb. Consequently, she developed septicaemia, suffered a miscarriage, and eventually died due to septic abortion.
As highlighted by Ms. Lahvee, there are still ambiguous aspects within Malaysian abortion laws. For example, the Malaysian Penal Code neglects to address scenarios in which the pregnant woman has surpassed 24 weeks, creating a legal loophole for abortion.
IV. Right to Abortion in Singapore
In Singapore, abortion is allowed on request or for health purposes. Singaporean abortion laws are encapsulated in the Termination of Pregnancy Act 1974 (TPA), specifically Section 3(3), which prohibits medical practitioners from carrying out the termination of pregnancy unless it is immediately necessary to save the life of a pregnant woman. At the same time, abortion is allowed on request provided that the pregnant woman is a Singaporean citizen or wife of a Singaporean citizen, holder or wife of a holder of a work pass issued under the Employment of Foreign Manpower Act 1990 or had been a Singaporean resident for at least four months before the treatment is to be carried out. Failure to comply with Section 3 would render the offender liable for a fine or imprisonment on conviction pursuant to Section 3(4) of TPA.
Abortion is prohibited if the pregnancy exceeds 24 weeks except in emergencies to save life or prevent grave permanent injury to the physical or mental health of the pregnant woman. It is also prohibited under circumstances where the pregnancy is more than 16 weeks but less than 24 weeks unless the abortion is performed by a registered medical practitioner with prescribed surgical or obstetric qualifications or who possesses professional skill in abortion either in practice or holding appointments in approved institutions over the specified period.
V. Right to Abortion in Canada
The criminal statute regulates the Canadian abortion law. Canada is one of the fewest countries that grants absolute abortion, which is treated as any other medical procedure governed by provincial or territorial medical regulations. Initially, the Criminal Code of 1969 was amended to permit abortion under certain circumstances.
But with the enactment of the Charter of Rights and Freedom in 1982, restrictions imposed on abortion were unconstitutional as they violate Section 7 of the Charter, which safeguards the life, liberty, and security of all individuals, including women.
In 1988, the Canadian Supreme Court rendered a landmark decision in the case of R v Morgentaler, declaring the existing abortion law unconstitutional for being in violation of Section 7 of the Charter. However, the court abstained from determining whether the fetus's right to life was infringed upon in such circumstances. Chief Justice Brian Dickson articulated that women carrying a fetus under the threat of criminal punishment impinges upon their security and constitutes a significant interference with their bodily autonomy.
VI. Improvements and Empowerment
According to Ms Lahvee, several improvements can be made to Malaysia's abortion laws. One suggestion is to broaden the criteria for allowing abortions on special grounds rather than restricting it solely to physical and mental health reasons. This expansion would provide individuals with a greater degree of choice and agency. Ms Laxmi shares a similar viewpoint, emphasizing that abortion is influenced by personal beliefs and the emotional significance attached to individual values. Therefore, the legislation should take into account the collective public opinion and carefully evaluate the weight that different perspectives carry.
It is crucial to highlight that promoting an “agree to disagree" mindset is essential when engaging in discussions about abortion. This approach fosters respectful dialogue while also allowing for public education. To facilitate these conversations in a controlled environment, it is important to establish avenues where sensitive topics like abortion can be openly discussed. Furthermore, raising awareness and implementing comprehensive sex education in schools play a vital role in ensuring that individuals develop a more informed perspective on abortion.