The acts of getting pregnant, pregnancy, and giving birth should not be criminalised.
Terengganu’s amendment to its Shariah Criminal Offences Enactment 2022, specifically Section 29A, which criminalises out-of-wedlock pregnancy and birth, threatens and weakens the protections and rights of women and girls to health care.
This amendment is just the latest in a long list of pieces of shariah legislation related to pregnancy in different states which may do the following: use the pregnancy as evidence or statement of out-of-wedlock sex (Selangor, Negeri Sembilan), declare a child as being born out-of-wedlock if born less than 6 months of marriage (Kedah) or criminalise out-of-wedlock pregnancy and childbirth outright (Negeri Sembilan, Kedah, Perak and Terengganu).
Some of these laws place the burden of disproving such allegations on the shoulders of the women themselves. This is an appalling state of affairs which has a direct impact on the health and wellbeing of women and girls in Malaysia. It undermines our health system.
Terengganu’s state Shariah Implementation, Education and Higher Education committee chairperson, Satiful Bahri Mamat, was quoted saying that these amendments which includes penalties of up to RM5,000, imprisonment for no more than three years, caning to a maximum of six strokes, or a combination of them, were made to maximise punishment.
They appear to be unusually cruel. There appeared to be neither thought nor consideration given for the health, protection or welfare of the woman or her child. What does this say about our society?
Such laws potentially put our health care workers in a difficult and impossible situation. The dictum of “first do no harm” is embedded into the code of conduct of all health care professionals.
Are they expected to report out-of-wedlock cases to the religious authorities when a woman or girl seeks antenatal, perinatal and postpartum care for their pregnancy? Will women and girls feel that health care facilities, such as women’s clinics, are no longer safe spaces, as their treatment and care can be used as evidence against them? Will access to contraceptives be jeopardised?
Will women and girls be forced to seek out unsafe abortions due to a hostile climate? What if her pregnancy becomes life-threatening and it becomes a choice between getting prosecuted after seeking treatment or risking her life?
During the Galen Centre’s conference on “Tackling Unintended Pregnancies in Malaysia” in May, YB Dato’ Sri Azalina binti Othman Said, former Chair of the Parliamentary Special Select Committee on Women and Children Affairs and Social Development, pointed out that a lack of reproductive health options should not cost a woman or girl 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,” she had said.
She also emphasised on the 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.
Sexual and gender based violence are a reality for many women and girls in Malaysia. Look at our health data on pregnancies, maternal health and infant mortality.
Wanted, unwanted and unintended pregnancies occur every day. Evidence and studies from this country and others, clearly show that punitive measures do not work and ignore realities.
Such legislation instead creates unnecessary suffering, pain or humiliation for the woman and her child. Instead of punishing women and girls, we need to protect and improve access to contraception so that women can choose and plan their pregnancy.
Azrul Mohd Khalib is the chief executive of the Galen Centre for Health and Social Policy.
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