Doctor Clarifies Abortion Is Legal In Malaysia

O&G specialist Dr Jamiyah Hassan describes abortion laws in Malaysia as generally grey.

KUALA LUMPUR, Oct 12 – Contrary to popular belief, termination of pregnancy or abortion has been legal in Malaysia for nearly half a decade, which has kept the number of unsafe abortions “low” in the country, according to an obstetrician and gynaecologist.

Abortion in Malaysia is generally governed by Section 312 of the Penal Code, where the law provides for safe abortion to save a woman’s life and to preserve a woman’s physical and mental health, said Prof Dr Jamiyah Hassan from Universiti Teknologi MARA (UiTM) at a recent conference.

Under syariah rulings (fatwa) issued by the National Fatwa Committee, abortion is permissible within 120 days of gestation in cases where the woman’s life is at risk, or if the foetus is found to be seriously abnormal. 

However, the fatwa was not publicised when it was issued in 2002 for fear that it could be misused, according to a report in The New Straits Times, cited by the Asian-Pacific Resource and Research Centre for Women (Arrow).

A check on the Department of Islamic Development Malaysia’s (Jakim) fatwa database on ‘abortion’ (or ‘pengguguran’ in Malay) showed at least 15 different fatwa on abortion for different states, including Selangor, Sarawak, Sabah, Negeri Sembilan, Pahang, and Johor, as Islamic law falls within state jurisdiction.

Some fatwa covered the supply of contraceptives to high-risk individuals and others on various diseases such as tuberculosis, Zika, and thalassemia, as well as for rape victims. However, only two fatwa appear to have been gazetted.

In Pahang, a fatwa issued in 2010 on the termination of pregnancy and the supply of contraceptives to high-risk groups has been gazetted.

The fatwa permits abortion within 120 days (four months) of gestation for rape victims, HIV patients, as well as people with mental and physical disabilities. Termination of pregnancy after 120 days is forbidden unless on the advice of an “upright” Muslim medical practitioner for the purpose of saving the woman’s life. 

Abortion is also forbidden for pregnancies from out-of-wedlock relationships unless it affects the woman’s wellbeing. The supply of contraceptives for extramarital sex is not allowed.

In Sabah, a fatwa issued in 2017 on the termination of pregnancy for Zika patients has also been gazetted. It generally disallows abortion, even for pregnant women infected with the Zika virus, unless the woman’s life is at risk – which must be verified by “trustworthy” medical practitioners. 

Zika is mainly spread from the bite of an infected Aedes mosquito. The virus can be passed from a pregnant woman to her foetus; infection during pregnancy can cause certain birth defects, according to the United States’ Centers for Disease Control and Prevention (CDC).

Sabah’s fatwa stipulates that the woman’s partner must also agree to the abortion. In such circumstance, the abortion must be carried out within 120 days of gestation.

Unsafe Abortions Very Low In Malaysia

Despite the general lack of public awareness on the legal aspects of abortion, the law allows for access to contraceptives at health care facilities across the country, with the Penal Code permitting abortions to be carried out safely through registered medical practitioners, Dr Jamiyah told 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, held here in May.

“If you read the law of the country, termination of pregnancy is legal if [it is] provided by a registered medical practitioner. It didn’t even say, provided by an obstetrician-gynaecologist – it only said provided by a registered medical practitioner. [That means] even a general practitioner can provide safe abortion. It is there. 

“Of course, we have to comply with the restriction or the criteria of the Act – the physical, emotional,” Dr Jamiyah said, adding that, however, the law is generally grey. 

Malaysia does not have an abortion registry, said the professor from the obstetrics and gynaecology department at UiTM Sungai Buloh’s faculty of medicine, though it is generally estimated that about 90,000 abortions are done each year.

“We know it occurs. But we also know it occurs safely, but a lot of people go undercover because of the sensitivity of the issue,” Dr Jamiyah said.

“When we look at the Confidential Enquiries Into Maternal Deaths (CEMD), if I can remember, in 2011, the cause of maternal death from abortion was only about 1.5 per cent, [sic] so the amount of unsafe abortion is still very small, meaning the provision is there. It’s just that it’s undercover.

“The question we should ask today is, what can we do more? We have provided awareness on contraception, not that we haven’t provided.

“I was involved in this education [programme] on reproductive and sexual health in universities and colleges in 2008, and that was supported by pharmaceutical companies. Pharmaceutical companies have a corporate social responsibility to help us in combating that. So, we have to do more,” Dr Jamiyah said.

Unreliable Data Hobbles Unintended Pregnancy Response

Dr Narimah Awin, former chairwoman of the National Population and Family Development Board (LPPKN), speaks at a conference on unintended pregnancies organised by the Galen Centre for Health and Social Policy, with the support of Organon Malaysia, from May 20-21, 2022, in Kuala Lumpur. Picture by the Galen Centre for Health and Social Policy.

Dr Narimah Awin, former chairwoman of the National Population and Family Development Board (LPPKN) and former director of family health development at the Ministry of Health (MOH), also highlighted the issue of unreliable data on pregnancy and abortion at the national level during a plenary session at the event.

Dr Narimah said pregnancy rates for women of reproductive age are not published in Malaysia, with public health researchers and civil societies often relying on vital statistics such as live births and deaths as proxy indicators, in addition to conducting their own surveys.

“There are so many different types of data [on burden of unintended pregnancy].

“In Malaysia, we do have vital registration but it’s still not good enough. So much so that when I was director at MOH, whenever I reported to the World Health Organization (WHO) that our maternal death this year is so and so, the WHO would say, ‘No, we will multiply it by 1.5’ and [the former Health Minister] Chua Jui Meng used to get very angry.

“He would say, ‘Narimah, you tell them that our register is 39. Why is it almost 50?’ And I would say, ‘They (WHO) multiplied it by 1.5’ because our vital registration, whilst our coverage is very good – every birth and almost every death is registered – we are one of the worst in the world in giving the cause of death.

“Our cause of death in the death certificate is not accurate. So, our coverage is good, but our quality is poor,” Dr Narimah said during a plenary session. Dr Narimah was a physician and former reproductive health advisor at WHO. 

“I used to analyse maternal deaths in Myanmar, and they told me they had 2,000 deaths or so in a year. When they did the census, it was about 10 times more. So, vital registration, the Health Management Information System (HMIS) alone are not reliable. The census showed that it is really a lot more than what it was.”

The HMIS is MOH’s central information system used to monitor disease incidence and prevalence through health records obtained from state and district health offices.

“If only we can have the number of pregnancies, out of those pregnancies, how many were married, how many were unmarried – of those who were married, how many were planned, and how many were unplanned or unintended… and of course, [among the] unmarried,” Dr Narimah said. 

“If we can have those figures, that would be ideal but I know this ideal situation is almost impossible to get.”

Unintended Pregnancy In Married And Unmarried Women

Dr Narimah also spoke about the consequences of unintended pregnancies in both married and unmarried women. 

Citing her experience working on a safe abortion programme in Bangladesh under the WHO, Dr Narimah said “almost all” unintended pregnancies in the Muslim country involved married women.

“These were married women. They became pregnant but didn’t want the pregnancy, either because they could not get family planning plans or some methods failed – not all family planning methods will be effective.

“They don’t want to be pregnant but now that they are they say okay, we will just go ahead. After all, we are married, let’s have another child. So, you get big families in Bangladesh,” Dr Narimah said.

It is also common for unmarried girls who are pregnant to marry instead of seeking an abortion for her unintended pregnancy.

“Some of these unmarried, poor girls, may end up having an unplanned pregnancy because their mothers would say, ‘We are Muslims, we can’t have an abortion.’ So, you might as well ask the guy to marry you. You get pregnant without intending to, and you just get married to have this pregnancy. 

“The outcome is not always positive. We hear a lot of tragic stories following that,” Dr Narimah said.

“So most unintended pregnancies among the unmarried are unwanted. But some of the married women also do not want their pregnancy and they want an abortion,” she added.

Men’s Role In Unintended Pregnancies

Dr Asa Torkelsson, the United Nations Population Fund (UNFPA) country representative for Malaysia and country director of Thailand, speaks at a conference on unintended pregnancies organised by the Galen Centre for Health and Social Policy, with the support of Organon Malaysia, from May 20-21, 2022, in Kuala Lumpur. Picture by the Galen Centre for Health and Social Policy.

Speaking at the same conference, Dr Asa Torkelsson, the United Nations Population Fund (UNFPA) country representative for Malaysia and country director of Thailand, said men also have a role to play in preventing unintended pregnancies.

Dr Torkelsson said the UNFPA’s “Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancy” report released earlier in March, found that shame, stigma, fear, poverty, and gender inequality undermine women and girls’ ability to exercise choice, to seek and obtain contraceptives, and to negotiate condom use with a partner, among others.

According to the report, data on partnered women of reproductive age in 64 countries show that 23 per cent are unable to say no to sex, 24 per cent are unable to make decisions about their own health, and eight per cent are unable to make decisions specifically about contraception. 

This means that only 57 per cent of women are able to make their own decisions over their sexual and reproductive health and rights.

“I think it’s all embedded in power dynamics,” Dr Torkelsson said.

“Now how can we engage men? I think we got some good views from the previous session that was new knowledge to me, for example, around this shyness [in men having to buy condoms over the counter], or individual barriers. 

“I guess we need to dig more deeply into this to unravel the barriers for men or power relations in households that make it difficult for women to negotiate our bodily autonomy,” Dr Torkelsson added.

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