Since the enactment of the Abortion Act, 50 years ago, the British Medical Association (BMA) has highlighted the need to review the law. Hence, in June 2017, the organisation controversially proposed for the complete decriminalisation of abortion – and for women to have access to terminations on demand.
The British government has subsequently been urged to abandon the current legal framework – which requires an expectant mother to convince two doctors that an abortion is necessary to protect her long-term health.
Abortions are an offence in almost all other circumstances under the current British 50-year-old law. Nonetheless, the BMA is suggesting that the issue should be purely medical, rather than criminal.
We reached out to several medical experts and lawyers – to gauge their professional views, as they provide further insights into this issue – particularly, if it would ever translate into a local setting.
Any possible change in law depends on cultural and social issues
"It is a very fine line," expresses Dr Tang Boon Nee, an obstetrician and gynaecologist at Ramsay Sime Darby Hospital. "Abortion is like a miscarriage... Termination of a viable pregnancy."
"We have always followed the British laws, which state that if a mother is in danger, and that the pregnancy can do harm to her – (it is allowed) but the definition is very vague," she elaborates. The danger that is posed to the mother is also very subjective – ranging from psychological harm to physical harm – leaving much of the interpretation to the doctor or the institution.
"In the UK, it is subjected to the doctor or nurse who sees the patient. A lot of it is psychological harm. For instance, the patient is too depressed, or she is not ready, or the family feel they lack support. If after counselling, they still feel the same way – abortion is generally allowed under the NHS," explains Dr Tang. "The patient is entitled."
Unsurprisingly, Malaysia is not as ‘open’ as the UK. There are no widely known clinics that offer abortions-on-demand in the private sector – and certainly not in the government sector – unless the patient is of high-risk. For example, being pregnant whilst having complicated heart diseases or cancer.
"It does not exist in a clinical setting, like how it is available in the NHS. Over here in Malaysia, there is no such service; whether in the private or government sector," iterates Dr Tang.
Cultural and social issues also play a role, whether the law would translate over.
"It is difficult in Malaysia. As it is a multicultural and multi-region country, there is a lot of ‘hush-hush’ about how things are or should be. That is the problem," expresses Dr Tang. "We are not even open to be talking about sexual education—although, we should be."
Pro-life and concerned practitioners express outrage
The unprecedented move has provoked outrage among British pro-life groups as well as concern from practitioners. They believe that decriminalisation could "open the floodgates" to sex-selective terminations – as well as putting women in abusive relationships at risk of coercion to end their pregnancies.
More than 1,500 British doctors and medical students have signed an open letter in opposition to the move. Lawyers’ Christian Fellowship (LCF)’s sister group, Christian Concern also expressed that the motion showed "shocking disrespect for human life."
"No law can protect a woman completely," Dr Tang lays it down as a matter-of-fact.
"If both mother and child are healthy, and the woman intends to terminate her pregnancy – honestly, as a doctor, I find that very difficult to accept – especially when it is at a viable stage. I personally do not agree with that decision (of BMA's)," she adds.
Birth rights belong exclusively to the mother, says expert
Another expert, an ob-gyn from Melaka (who prefers to remain anonymous), shares differing opinions.
"A woman has total rights to what happens to her body and this is not ruled by any external ethical or moral constraints," he says. "A 'foetus' – whether potentially viable or not – is a 'foetus' especially a very premature one. A foetus is not a grown human; (therefore it) does not have birth rights.”
"Birth rights belong to the mother who carries it, not anybody else – not even the father," he remarks.
In Malaysia, two differing laws – the civil law and the Syariah law – simultaneously govern the issue, giving rise to many complications.
“Questions arise if a non-Muslim provider terminates the pregnancy of a Muslim patient, or vice versa – how would these confusing scenarios be handled?” he asks.
“I hope our country only has one law that governs this issue. Political and religious opinion should not be entertained,” he adds.
In order to understand the issue from the legal perspective, we have also reached out to prominent medical lawyer, Mr P. S. Ranjan.
“At one time, in our Penal Code in Malaysia, anyone could perform an abortion – if it was for the purpose of saving the life of the mother. It was worded this way once upon a time,” explains Ranjan.
“Then they amended the law to say that if it was performed by a registered medical practitioner on sufficient medical grounds – it would be alright. Thus, they medicalised it and loosened the medical criteria for an abortion in Malaysia,” he elaborates.
Nonetheless, this is based on medical grounds only – a woman still cannot have an abortion on demand.
Termination of pregnancy: Which law applies?
The abortion process is free in Malaysia if it’s performed in government hospitals, provided that the procedure must be done before 22 weeks of pregnancy – under the civil law – with the consent of the pregnant woman.
Under the Syariah law, abortion is however not encouraged for up to 40 days; but permissible for up to 120 days of pregnancy – with the consent of the pregnant woman. Doctors who perform the abortion without consent, would be punished. On invalid medical grounds, the doctor of the pregnant woman or both may be imprisoned for three years or fined, or both.
Past 120 days of pregnancy, imprisonment of the accused – the pregnant woman or doctor – can be sentenced up to seven years. For the doctor who performs the abortion without the consent of the pregnant woman, he or she would be imprisoned for up to 20 years, or fined, or both.
If the abortion leads to the death of the pregnant woman, the doctor who carries out the abortion without the pregnant woman’s consent could also face an imprisonment of up to 20 years.
There are exceptions to the grounds of abortion under section 312 of the Penal Code of Malaysia. Termination of pregnancy can be carried out if:
• it involves a risk to the life of the pregnant woman, or
• it brings injury to the mental or physical health of the pregnant woman, or
• it is carried out by a registered medical practitioner.
However, it still means, termination of pregnancy is prohibited even:
• if it was a result of rape or incest,
• in cases of foetal impairment,
• for other economic or social reasons.
The grey area exists as the Penal Code applies to all citizens in Malaysia, both Muslim and non-Muslim. But, if there is any conflict with the Syariah law, the Penal Code would have to be amended.
The 50-year-old British law is similar to the Malaysian civil law. It states that abortion will not be a criminal offence if done before 24 weeks’ gestation where two doctors are of the same opinion, formed in good faith. Good faith being “an opinion made in all honesty and with total integrity” – and only with the patient’s interest in mind.
A matter of turf war between the legal and medical profession
The similarities hint that changes in the British civil law may translate to Malaysia. Mr Ranjan said, “Whatever happens in Britain can have its impact in Malaysia, but it will take time. I have a feeling that even though they decriminalise abortion, they will retain this point: If it is performed by a non-medical person, it shall be an offence.”
He echoes the concerns of the British pro-life groups and ob-gyns that “If it is to be decriminalised, there should be some safeguards, such as it should not be done for an improper reason; like sex selections or perfect babies, for example.”
“To be honest, it is a matter of turf war sometimes,” says Ranjan, with a laugh. “I’m not surprised if the medical profession says “leave it in our hands, nobody else’s hands – and don’t make it a criminal offence”.”
According to the BMA, indeed, the decriminalisation of the law is to ensure that doctors who carry out abortions, do not face criminal sanctions. It aims to make sure that doctors and women will no longer face the threat of imprisonment for procuring or performing abortions.
However, they did assure that “providers will be regulated by the General Medical Council’s standards of good medical practice, including consent and confidentiality.”
But to what extent, and how?
Ranjan reminds that the BMA is currently only proposing the changes and it would be difficult for any changes to occur as it will meet with opposition, particularly from the Catholic Church.
“Even non-Catholic groups, such as more conservative Presbyterian organisations or bodies will be against it; the Islamic bodies as well. So, we have to see what kind of reaction there will be,” he points out.
“I’m afraid that the subject can be quite complex,” he adds.
Whether the British government would accept the proposal remains to be observed. MIMS will be following this topic closely, and will provide updates accordingly. MIMS
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