January 1, 2012

The Legal Aspect of Therapeutic Abortion in Malaysia

A 16 weeks of gestation fetus who was terminated through cervagerm insertion due to severe uncontrolled chronic hypertension that is exacerbated by pregnancy.




As a general rule, abortion is illegal in Malaysia and both parties; the mother and the provider of the service can be charged according to penal act. Exception to this is for the medical cause in which a registered doctor formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated. Apart from this cause, it remains illegal.


As for example, a rape case alone is not an indication for the legalization of abortion. However, if the pregnant mother of a rape case develop severe mental distress in which according to medical doctor could harm her in any aspect, therefore it is legal to perform abortion.


Another issue is whether should the abortion needs consent from the patient. As a general rule, abortion performed without consent from the mother deserves a penalty charges. However, another section (section 92) can be applied to save a doctor who performed abortion with a good intention to save the mother’s live.


The indication of legal abortion in Malaysia including 1) Any medical condition that can be worsened by pregnancy. 2) A pregnancy with fetus that is unlikely to survive like anencaphaly. This is not applied to any syndrome or congenital malformation in which the baby could survive like Down syndrome. 3) A rape case in which the pregnancy causing the mental distress to the patient.


The Malaysian Medical Council regards induced non-therapeutic abortion a serious infamous conduct and if proved to the satisfaction of the Council, a practitioner is liable to disciplinary action. A criminal conviction in Malaysia or elsewhere for the termination of pregnancy in itself affords grounds for disciplinary action. (Code of Medical Ethics, Malaysian Medical Association)
 
 

Below is some penal act regarding abortion in Malaysia.


Causing miscarriage


312. Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.


Explanation—A woman who causes herself to miscarry is within the meaning of this section.


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 medical practitioner is of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated



Causing miscarriage without woman’s consent


313. Whoever commits the offence defined in section 312, without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine. Death caused by act done with intent to cause miscarriage. If act done without woman’s consent


314. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the act is done without the consent of the woman, shall be punished with imprisonment for a term which may extend to twenty years


Explanation—It is not essential to this offence that the offender should know that the act is likely to cause death


Act done with intent to prevent a child being born alive or to cause it to die after birth

315. Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive, or causing 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 for the purpose of saving the life of the mother, be punished with imprisonment for a term which may extend to ten years or with fine or with both.



Act done in good faith for the benefit of a person without consent


92. Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are  such that it is impossible for that person to signify consent, or if that personis incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided that this exception shall not extend to—


(a) the intentional causing of death, or the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
(d) the abetment of any offence, to the committing of which offence it would not extend.


ILLUSTRATIONS


(a) Z is thrown from his horse and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.


(b) Z is carried off by a tiger. A fires at the tiger, knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence.


(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.


(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.


Explanation—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.

3 comments:

  1. Hello, Jack/Naim.

    I am Jee San, a second year law student of University Malaya. You actually mentioned an exception to abortion, which is the termination of pregnancy could be performed if the fetus is unlikely to survive, i.e. a anencephalia fetus. But there is nothing about this being laid down in the Penal Code or elsewhere. Can I know your reference or authority to this?

    Thank You.

    ReplyDelete
  2. Dear sister.. I'm not a well expert person too but i can give some idea n hope it will enlighten both of us

    the law of abortion differs from country to country.. like in india, fail contraceptive is considered as indication for abortion.. as well as family planning in certain country (to minimize birth)

    in case of anancephaly, my argument would be that the baby is incompatible of life.. even if birth, it wont stay alive long.. the longest that i've ever heard of is 3 days..

    i elaborate it based on clause 92 "Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith"

    prolonging the pregnancy would even stress the mother in term of psychological aspect.. in which the mother carrying a baby in which they know wont survive...

    secondly, aborting the anancephaly baby is not in the act of attempting to cause death, as the baby itself have a poor prognostic factor.even without abortion, risk of miscarriage also high in this pregnancy...

    therefore, i did not seen any part that it is not applicable for the abortion of baby with anancephaly...

    ReplyDelete
  3. Our laws are actually silent on the definition of person. It does not define whether a fetus or embryo is a person, but the court has taken an approach of only those born babies, which are out of their mom's bodies will be deemed as a person. Meaning the word person in s92 will not be applicable to an unborn. It probably refers to the mother, if that is the case.

    And to prove that the mother will be suffering in the aspect pf psychology is also a very heavy burden of proof. Even the act of aborting a baby out of a result of raping will not be necessarily covered by the provision. That's why the provision does not expressly state so.

    And as far as I am concerned, an intention of causing death will not be set aside by the court even if the person is actually dying. Your intention to cause death will still be a contributing factor to the death.

    I am actually doing a research on the legal status of human cloning in Malaysia, and have come across a question, which is, whether to terminate a go-wrong cloning process is considered as abortion or even murder.

    Thanks for the reply anyway!

    ReplyDelete

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