The Legal and Policy Environment of Safe Abortion in Malaysia

by the Reproductive Rights Advocacy Alliance Malaysia (RRAAM), 30 August 2016 the 21 March 2016, RRAAM in collaboration with the Joint Action Group for Gender Equality (JAG) held a policy discussion on “The Legal and Policy Environment of Safe Abortion in Malaysia”. The discussion was attended by the various stakeholders including the government sector, namely from the Ministry of Health and Attorney General Chambers, representatives from the Malaysian Medical Association (MMA) and Obstetrical and Gynaecological Society Malaysia (OGSM), international participants, health advocates, UNFPA Malaysia Country office, JAG and RRAAM representatives.Among the many key discussion points listed in the introduction were the following:

  1. It is timely for the Malaysian Medical Council to review the Code of Professional Conduct as its language creates unnecessary difficulties. The meaning of the term non-therapeutic abortion applies to abortions on demand. However, if a doctor can clearly document the grounds for the abortion, the doctor has performed a lawful abortion as the law overrides any professional code.
  1. Doctors should take comfort in the fact that Parliament considers doctors reliable enough to entrust the burden on them. Doctors have the knowledge and training to assess each case and see if it is medically justified as falling within the framework of the law.
  1. The Penal Code is a directory of criminal offences and ideally the section on abortion shouldn’t be there. However, even in India, they didn’t delete the similar section from their Penal Code but drafted new law which clarified the role of the doctor and superceded the provisions of the Penal Code by laying out certain presumptions that amount to injury to a women’s mental or physical health. This has made it easier on the doctors.
  1. On the point of the mental health exception, it was shared that what the doctor has to go on is what the woman says in the consultation. It is not the responsibility of the doctor to find out if the woman is in fact telling the truth. What a client tells the doctor is their truth. The idea of carrying an unwanted pregnancy is commonly considered mental stress and in some cases should require no further consideration.
  1. A question was raised as to the rights of the fetus. The first response was that this is a debatable issue. It was acknowledged that Article 5 of the Federal Constitution does not mention the word ‘fetus’. Section 312 of the Penal Code does refer to the woman being quick with child, which could lead to some confusion that when the fetus is quickening the right to life should be more considered. However, another opinion that was shared was that the fetus of itself has no rights. The reference to quickening in section 312 goes to the degree of punishment to be given out with reference to the stage of pregnancy.
  1. The discussion was brought back to the lived realities of women and how confusing the legal position might seem to them. To say abortion is allowed in the name of “a lesser evil” just adds to an already distressing situation for women, especially those who do not have social support. The main objective of the law is to protect the medical health of the woman and it is positive that a termination of pregnancy is viewed as something that can be performed as a medical service.

In the discussion on clinical guidelines during the meeting, it was noted that: It was questioned why medical abortion is not easily available as there is so much evidence on its safety especially in early pregnancies. In Malaysia, the MOH has not registered Mifepristone as there has not been a request for this, but there have been requests for the combination drug. Doctors have been using what is available. The RRAAM Rapid Appraisal study shows an increased demand for medical abortion. It has also been one of the strategies of FIGO to mainstream medical abortion services. The question remains what are the barriers to applying this and why it is not being registered?Comparing Malaysia and Thailand:The third speaker, Prof Kamheang Chaturachinda, Professor Emeritus at the Department of O&G Mahidol University, began by stressing that personal beliefs of providers can damage the patient care especially in the area of O&G. The law in Malaysia and Thailand is quite similar in that medical practitioners can perform abortions for the sake of women’s health or on account of sexual crimes. The Thai Medical Council Regulation 2005 also redefined health to include mental health. It is therefore clear that Thai law permits abortion services. He explained the available methods in Thailand, sharing how simple the procedure of vacuum aspiration is that it can be done as an outpatient procedure. He in fact regards a metal curette as a dangerous instrument which should be in a medical museum. For medical abortions, misoprostol and mifepristone are registered in Thailand and will be listed in the essential drugs list this year which allows its distribution to women in Thailand.