Azalina: Protect, Not Punish Women And Girls With Unintended Pregnancies

Azalina Othman Said says Malaysia’s restrictive abortion-related law under the Penal Code disproportionately burdens rape victims who fall pregnant, creating “unimaginable harm”.

KUALA LUMPUR, May 20 – Women and girls should be protected, not “disproportionately penalised” for unintended pregnancies, says Pengerang MP Azalina Othman Said.

Azalina, who is chair of the parliamentary select committee on women and children affairs and social development, said Malaysia’s restrictive abortion-related legislation harms and disproportionately burdens rape victims who fall pregnant.

Section 312 of the Penal Code – which punishes causing miscarriage, including by the pregnant woman herself, with up to seven years’ jail – only permits abortion by a medical practitioner if the doctor believes that continuing the pregnancy poses a greater risk to the woman’s life or greater harm to the woman’s mental or physical health than terminating the pregnancy.

Azalina highlighted that infant abandonment, infanticide, and abortion as a result of unintended pregnancy leads to society disproportionately penalising women and girls: “We never hesitate to punish women or girls who have committed an act out of desperation or panic, such as abandoning the baby.”

“Protection solves issues, not penalisation,” Azalina said in her keynote address at the “Tackling Unintended Pregnancies In Malaysia” conference organised by the Galen Centre for Health and Social Policy, with the support of health care company Organon Malaysia, here today.

“At present, we don’t even explicitly allow abortion for victims of sexual crimes, although in 2022, the National Fatwa Committee had issued a fatwa which permits abortion up to 120 days of gestation for cases involving rape victims.

“However, the fatwa is not gazetted, and the Penal Code still applies. The Penal Code only allows for abortion in two situations – lack of physical safety and mental soundness. 

“This puts a disproportionate burden on the victims, creating unimaginable harm to the lives of these vulnerable women and girls.”

Azalina cited a case involving a 15-year-old girl who was investigated and prosecuted for allegedly killing her newborn baby in Terengganu in February 2022.

“Disturbingly, the immediate action taken by authorities was to detain the child while the child was still in the neonatal ward and recovering from postnatal shock.

“The child was detained and charged with murder under Section 302 Penal Code and was not accorded the benefit of any legal representation, or psychological assistance until much later. Much debate on this case ensued. 

“Civil society organisations highlighted that even if she is to be charged, Section 309A (infanticide) would have been a much suitable course of action, instead of the non-bailable offence of murder, as it deals with the intentional killing of infants by reason thereof the balance of her mind was disturbed,” Azalina said.

Azalina, who is special advisor to Prime Minister Ismail Sabri Yaakob on law and human rights, said this again highlights the adverse impacts brought about by gaps between legislative intention and the implementation of it. 

“This particular case exemplifies the traumatic consequence of an unintended pregnancy. The cause of this lies in the society’s perception towards these women and girls, treating them as offenders instead of victims.”

The Umno lawmaker also touted reforms to improve access to contraceptives as the lack of reproductive health options should not cost a woman her life.

“Unintended pregnancies are often the consequences of women having no right or say on their own bodies. If we can give girls and women the right to own their bodies, they can own their future,” Azalina said.

“We need to identify and review existing legislation which currently create an environment of stigma and discrimination towards those experiencing or dealing with the consequences of unintended pregnancies. 

“Reforms both in terms of legislation and strengthening of human rights frameworks are needed to protect and improve access to contraception so that women can choose and plan their pregnancy.”

A 2014 study by the National Population and Family Development Board (LPPKN) showed that Malaysia’s contraceptive prevalence rate (CPR) is only 52.2 per cent – this is just for married women. Only 34.3 per cent use effective modern methods of contraception, such as birth control pills, barriers, injections, tubal ligation, intrauterine devices or implants.

Azalina described unintended pregnancies as a “silent ongoing crisis”, noting that 14 in every 1,000 girls below the age of 18 are pregnant, amounting to an estimated 18,000 annual pregnancies, of which 4,500 pregnancies are out of wedlock. An average of nine babies are reportedly abandoned every month.

“We are faced with an ongoing challenge of teenage pregnancies, underage marriages and children born to mothers who are children themselves,” she said.

“We are not here to judge these girls. We are here to find solutions to better support them and women who have unintended pregnancies. 

“While we might find the thought of a family producing enough children to comprise half or even an entire football team amusing, the fact is that women who are unable to plan their pregnancies are often socio-economically disadvantaged and put their health and wellbeing at risk.”

Azalina noted that a girl-child from lower-income families often loses out when parents are forced to choose which child to send to school or to stay home to help the family; sometimes, she is married off to a much older man.

The former law minister also said although she was proud of getting Malaysia to be the first Southeast Asian country with a Sexual Offences Against Children Act and a Sexual Crime Court Against Children, “I am not so proud of the fact that implementation of the law is not yet at the level where we can all be assured that all children who are victims of sexual crimes will get timely legal redress.”

Azalina, who is a lawyer by training, called for non-judgmental legal and social support services that do not moralise or prosecute individuals under their care for actions that lead to unintended pregnancies, like premarital sex.

The Attorney-General’s Chambers and the judiciary, she said, should be sensitised to provisions under the Child Act 2001.

“Reproductive rights are fundamental to gender equality and women’s empowerment.”

Unintended Pregnancy Affects All Segments Of Society

Galen Centre for Health and Social Policy chief executive Azrul Mohd Khalib, in his welcoming address, stressed the importance of planning pregnancies.

“Being able to plan or decide one’s pregnancy enables women to take control of their futures, so that they can finish their education. get better jobs, but also to plan for their families – rather than being trapped in a cycle of grinding poverty and deprivation,” he said.

“Unintended pregnancy is not just a problem of teenagers, unmarried women, or poor women from disadvantaged backgrounds. It affects all segments of society. Unintended pregnancies are a national concern.”

“Family planning, reproductive health is not a nice-to-do or nice-to have, it is an essential investment and part of a strong, robust and resilient health system.

“New technologies and methods of contraception are being developed, rolled out and scaled up. But they are of little use if we do not recognise the need and urgency for contraceptives to be readily available and accessible for those who need it.”

Andreas Daugarrd Jorgensen, managing director of Southeast Asia cluster for Organon, emphasised the need to distinguish that “unintended” pregnancy does not always mean “unwanted”.

“The term includes both unwanted and mistimed pregnancies, mistimed meaning it is not wanted at the current time, but desired at some future point,” Jorgensen said.

He also highlighted the need to ensure that cost did not become a barrier for access. 

“Cost should not be a barrier to family planning, and therefore not inhibit women of any reproductive age from being able to access the contraception of their choice due to worries.”

Jorgensen highlighted the need to ensure properly properly trained and equipped health care providers, which will help ensure access to contraception required to prevent unintended pregnancies.

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