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Abortion, the battle between women’s rights and a doctor’s conscience – Dr Sharifah Halimah Jaafar

February 20, 2016

A woman walked in to my clinic after discovering herself pregnant and she said, “Doctor, I am pregnant but I am not ready to have this baby. I want an abortion! Can you do it for me?”

The abortion law

Abortion is considered a taboo subject in Malaysia even though it is a commonly encountered problem.

According to a survey done by the National Population and Family Development Board, statistical estimation, in 2012, showed that more than 90,000 abortions were done annually, and the majority was done in “ill-equipped, unsafe environment”.

As a general rule, abortion is illegal in Malaysia and both parties; the mother and the healthcare provider providing the service can be charged according to Malaysian Penal Code section 312-315.

Exceptions is however granted based on medical consideration, “… where 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”. (The Penal Code (Amendment) Act 1989 (Act 727).

Apart from this cause, it remains illegal.

Although termination of pregnancy is permitted, the law is nevertheless limited.

Under the Penal Code Act 1989, it is the doctor alone who makes the decision as to whether a termination should be carried out based on his assessment that “continuation of the pregnancy would endanger the mother’s life and her mental health”.

Therefore, legally speaking, the woman’s wishes and her rights to her own body alone holds no legal ground for her to choose to have an abortion done.

Under the Code of Medical Ethics, Malaysian Medical Council (MMC), abortion done for non-medical reasons by a registered doctor is a serious infamous conduct and if proved to the satisfaction of the council, the practitioner is liable to disciplinary action.

Abortion and women's reproductive right

Nirmala Thapa, a Nepalese migrant worker was the first woman in Malaysia who was charged and convicted for having an abortion done at a private clinic and was sentenced to one-year imprisonment by the Session Court in Penang last year.

She was convicted under Section 315 of the Penal Code for an act to prevent a child being born alive or to cause it to die after birth.

The doctor who performed the procedure too was charged separately and referred to Medical Ethics Committee, MMC.

Human rights and women’s groups had taken up her case, arguing that Nirmala’s conviction was a miscarriage of justice against a migrant worker and violation of her reproductive rights.

The case was later retried at High Court and Nirmala was acquitted and released after spending four months in prison.

Women’s rights group had argued that a woman should not be criminalised for having an abortion as she has her rights to her own body; thus its her statutory right to decide what to do with her own body, and had demanded that safe abortion services should instead be made available and easily accessible in established government and private healthcare facilities.

They argued that denying the woman’s wish for abortion is denying her reproductive rights, i.e. the rights to her body whether to have or not to have the pregnancy.

They opined that even if the continuation of pregnancy would not bring harm the mother, safe abortion facilities should be made accessible and available to any woman who choose not to continue her pregnancy.

They further argued that if a woman is to be prosecuted for having an abortion, then they will have to prosecute 90,000 women each year.

Does the unborn fetus has any rights?

The pro-life group opposes abortion practice in defence of the rights of the unborn fetus to life.

Fetus is considered a potential human being, a life, and should not be considered as part of a woman’s body eventhough the fetus relies on the state of maternal body to survive especially in the early part of pregnancy.

The mother is a guardian and provider of nutrients until the baby is born.

To terminate the pregnancy without medical reason means to deny the rights of the unborn child to life.

However, the question of whether or not the unborn child has any legal rights of his own, is still an area of uncertainty under the legal framework. There have been differing interpretations of whether the right to life applies to the unborn child.

The conscience of the doctor

The law has clearly spelt out that on medical grounds, termination of pregnancy will be granted and deemed legal.

Next, comes the doctor’s discretion and assessment, whether or not the pregnancy brings harmful effects to the mother, be it physically, mentally or emotionally.

The Health Ministry in its guidelines of termination of pregnancy has listed down the indications for permissible abortion, which includes: 1) Any medical condition that can be worsened by pregnancy, 2) A pregnancy with foetus that is unlikely to survive like anencephaly or lethal congenital abnormalities. However, this does not apply to any syndromic or congenital malformations where the baby could survive, like Trisomy 21 (Down’s syndrome), 3) A rape case in which the pregnancy causing the mental distress to the patient.

Those are clear cut indications for termination of pregnancy due to the harmful effects of continuance of pregnancy has on the mother’s health and the doctor’s conscience is clear.

However, to abort an unplanned pregnancy in instances where a woman herself or her partner has failed to take reasonable precautions for contraception when contraceptive medications and devices are easily and conveniently available and accessible to her and her partner could be a matter of great concern to some doctors having the understanding, experience and evidence to support that abortion procedure should not be taken as a form of family planning method as the procedure itself is not without risk eventhough it is done in safe environment.

Furthermore, it could potentially pose further complications for future pregnancies which might not be immediately apparent at the time when the procedure was being carried out.

Abortion procedure eventhough done in best hands, still carries specific risk of uterine perforation and haemorrhage which may endanger the mother’s life ad health.

Vigorous curettage of the uterus may cause scarring of the uterine wall which may affect fertility and future chances of pregnancy.

Force dilatation, however gentle it may be, of the cervical opening during an abortion procedure may result in relative cervical incompetence, potentially causing repeated spontaneous miscarriages and early fetal loss in future pregnancies. There is also incidence, though very rare, of maternal death from the abortion procedure.

The danger of abortion procedure to the mother increases in proportion to the advancement of the duration of pregnancy or gestational period.

Termination of pregnancy before 10 weeks gestation is considered low risk. Beyond 10 weeks, the risk and danger of undergoing an abortion in comparison to the risk of continuation of pregnancy on the mother’s health are of no difference.

Thus, to undertake the abortion procedure simply to uphold women’s claim for their own reproductive rights does pose some challenging ethical considerations underpinning the conscience of doctors who have swore under the oath to save and preserve life and against the ethical principle of “first, do no harm” (primum non nocere).

While I personally support women’s rights movement, I do urge women to empower ourselves with adequate knowledge and wisdom as in the process of our struggle for gender equalities, more rights comes with greater responsibilities.

If the right of abortion is to be taken solely as women’s reproductive rights alone without any restraint, we might be opening up the Pandora box, when the number of abortion requests would be doubled or tripled over time, which will definitely resulted in correspondingly higher rate of obstetric complications and possibly increase in number of maternal deaths in the future.

Contraception, not abortion is the best method of protection against pregnancy

For the majority of women, pregnancy is a consequence of failure on their part as well as their partners’ to undertake adequate contraceptive precautions.

In Malaysia, family planning services are easily available to women, both in the government and private healthcare facilities.

The contraceptive pills can be easily bought over the counter of all pharmacies across the country. Condoms have even wider network of availbility in their own convenience.

Thus, it is a matter of choice for sexually active women, in consultation with their partners, to work together to choose the appropriate method for contraception of their choice.

Information on contraceptive methods should be part of sex education module taught to teenagers in school to empower mutual understanding and respect over sexuality from both ends, to prevent teenage pregnancy and future unplanned pregnancy as well as to preserve their future fertility potential from harmful effects of having unsafe abortion. – February 20, 2016.

* Dr Sharifah Halimah Jaafar is the founder and adviser to the Perak Women for Women Society.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.