FAQ on Law & Policy

These are questions asked at state seminars held by RRAAM from 2007 thru to the present, primarily for health care providers serving in hospitals and clinics. The answers provided are by RRAAM presenters at these seminars. Some questions were asked only once but they are deemed important enough to be published here. Since laws, policies and guidelines evolve with time and changing social conditions, the answers provided here are necessarily time-bound. Wherever and whenever possible, we will strive to keep these answers accurate and updated. However, we cannot assume liability for the veracity of information provided.

Questions of law
Syariah law provisions on abortion
Government health policy
Strategies and statistics

Questions of law

Is it risky for doctors to openly tell people that they perform legal abortions since they may get prosecuted?
No. The Penal Code 574 (Amendment) Act 1989 in Malaysia effected a change in the law relating to abortion. It is legal if:

  1. a medical practitioner registered under the Medical Act 1971 undertakes the procedure; and
  2. the practitioner is of the opinion, 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.

A doctor performing an abortion may lawfully do so only if he or she acts in good faith, and exercises sound clinical judgment in accordance with the principles imposed by the law (see Note).

Many, if not most, medical practitioners providing abortion services do not do so openly, relying on the local grapevine for women to approach them if such services are needed. Provided that they operate legally within the context of the law, there is no reason for them to be prosecuted. Practitioners’ silence and unwillingness to expose themselves publicly for fear of prosecution is one more barrier to access for women who need abortions.

If a doctor has conscientious objections, does the law force the doctor to perform an abortion?
No. However, the doctor is bound by a professional ethic of care to provide a referral to another practitioner who can and is willing to provide that service, within a reasonable timeframe. Abortions cannot be performed after 22 weeks gestation, and under syariah law after 120 days (16 weeks), so time is of the essence.

What is the meaning of “in good faith” and how is it determined when a registered practitioner performs the abortion procedure?
The short general answer to the definition of ‘opinion made in good faith’ as applied to health providers would be ‘an opinion made in all honesty and with total integrity’ and with only the patient’s interest in mind.

An example of ‘bad faith’ would be an opinion made and advice given for the doctor’s financial gain or other benefits or to satisfy the doctor’s own personal moral beliefs.

The argument made against ‘liberal’ abortion providers is that it opens the door to allow them to provide abortions ‘on demand’.

However, how this works in practice can best be seen in the UK where the same legal phrase has been used since it was amended in 1957. What is practiced there is actually ‘abortion on demand’, the only proviso being the need for two qualified doctors to sign a form supporting the abortion as being in the patient’s interest for her mental health. (This two doctor proviso is absent in our penal code.)

No one has ever been questioned or prosecuted for making a pro- abortion decision as to whether such an opinion was made ‘in good faith’. If it ever it came to court, it would be difficult for prosecution to prove ‘bad faith’; after all, it is incumbent on the doctor to understand a patient’s distress and to try to alleviate it.

Most doctors who try to limit the interpretation of the penal code see ‘mental health’ as a state of mind that requires psychiatric assesment, medication and prolonged management. There is no justification in international law to support such an interpretation.

Does the law require that a psychiatrist and a medical officer jointly decide whether a woman can have an abortion?
No, according to the 1989 Amendment to Section 312 of the Penal Code, the law only requires that one registered medical practitioner, acting in good faith, determine that.

In the case where two married people have an affair and the woman is pregnant and wants to keep the baby while the man does not, what happens according to the law?
It is the woman’s choice. The law does not require spousal or a partner’s consent either to have an abortion or to keep the pregnancy.

Is the exception to Section 312 too wide, with room for abuse by the medical practitioner?
The exception is wide, giving the doctor the power to decide in good faith if the conditions for an abortion are satisfied.

Is there a mandatory requirement to disclose to your partner if you are HIV positive? 
No, it is not legally required that you inform your partner of your HIV-positive status. There are laws that protect personal privacy, and medical data is confidential. HIV-positive status is only reported to the Ministry of Health by testing sites, which include private labs, for public health data gathering reasons. There are also sites that provide anonymous HIV testing services to encourage individuals to get tested.

Syariah law provisions on abortion

Is there any provision under syariah law that permits/supports abortion and alleviates women’s feelings of guilt?
Yes. Under the fatwa developed in 2002 by Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan, abortion is makruh (not encouraged) for up to 40 days, harus (permissible) for up to 120 days and haram (forbidden) beyond that except to save the life of the mother or if there is fetal impairment. This national liberal fatwa is in keeping with the majority of Muslim countries where abortion is conditionally permitted for health and sometimes social reasons up to the time of ensoulment, usually around four months.

The most reliable indicator of whether a woman will experience feelings of distress after an abortion is her emotional stability before the abortion. Women indicate that the most common feeling after the completion of an abortion is relief. While some women also experience a sense of loss, sadness, or grief, having an abortion is not associated with long-term psychological distress (National Abortion Federation. 2003. “Post Abortion Syndrome“).

Regarding syariah law, will a Muslim woman have a problem, or a doctor have a problem servicing a Muslim woman requesting an abortion?
No. The Penal Code applies to all citizens in Malaysia, both Muslim and non-Muslim. If there is any conflict with syariah law, the Penal Code would have to be amended.

There is no passage in any religious text that forbids women from choosing to terminate a pregnancy, or that condemns those who help them.

Government health policy

What are the Ministry of Health guidelines on abortion?

The provisions given to physicians are: the Penal Code; Guardianship of Infants Act; Child Act; religious fatwa; Code of Professional Conduct; and medical ethics which stipulate beneficence, non-malfeasance, respect for autonomy, and justice. All of these are meant to help medical practitioners in their decision-making.

As of June 2010, there is currently a committee working within the MOH to set up guidelines on abortion. The issues that will be addressed are:

  • evidence-based policies on indications and contraindications for performing abortions;
  • clear gestational limits;
  • facilities and practitioners;
  • procedures, such as consent requirements;
  • quality of care;
  • standardization, e.g. if one or two practitioners are required, or with a psychiatrist;
  • counseling and waiting period requirements, which are tight even in liberal countries, stipulating that counseling has to be from a doctor, with a six-day waiting period aimed at discouraging abortion and changing the mind of the client; and
  • right to information, i.e. client’s right to informed choice, but not the right to information about abortion or contraception.

The religious fatwa permits abortion as part of comprehensive sexual and reproductive health services.

What is the Ministry of Health’s policy on elective abortions in government hospitals?
If there is a legal basis for the abortion, the service should be provided, assuming parental consent has been given for minors. However, some hospitals do not provide this service due to misconceptions about the law or biases of doctors themselves.

Can accredited nurses perform abortions?
No, only registered medical practitioners are allowed to do so by law.

Are hospitals working with Education departments with regards to young people? What steps are the government taking together with other agencies and NGOs?
School health teams have regular meetings with educational and religious groups. At the state level, they are also encouraged to have combined meetings. A few clinics in places identified with a lot of adolescents will have this program, e.g. Putrajaya. School health teams visit schools and identify whether there are lifestle problems. The approach is not to penalize children but to teach them. At the national level, there is also training of trainers on counseling and educating health providers at the ground level. In Kedah, they use younger medical assistants and nurses to run progams.

On what grounds is misoprostol not approved?
Misoprostol is registered as a drug to treat gastric ulcers but it has other significant effects on the uterus. In particular, it causes contraction of the uterus after a delivery (to stop excessive bleeding) and also causes abortions in the pregnant uterus especially in early pregnancy.

Thus, because of its abortifacient effect, its use was officially limited to treatment of gastric ulcers although it is widely used for its uterine action in non-government clinics and hospitals. It is the drug of choice for medication abortion in conjunction with mifepristone (unregistered in Malaysia) or methotrexate.

The Malaysian Medical Association (MMA) has been trying to get it approved for another disease called Benign Prostatic Hyperplasia (BPH).

What steps are being taken by the government to help pregnant teens?
Current contraception guidelines which pertain to medical eligibility criteria are based on World Health Organization guidelines. Adolescents are not currently covered by these guidelines but contraceptive services for teens is a service in the pipeline as the Ministry of Health is aware of the prevalence of teen pregnancy and pre-marital sexual activity. Contraceptives are currently being provided for high risk unmarrieds. “High risk” is defined by extent of sexual activity.

There are some services from the government to help pregnant teens. Darul Saadah Pusat Pertolongan Wanita has been partly run by the government for over twenty years in Kuala Lumpur for pregnant Muslim teenagers. There are other Muslim-based homes mushrooming, usually available on referral by NGOs and welfare officers. NGOs are looked upon as a source of help to complement or supplement government work. Women’s Aid Organization (Petaling Jaya), Pusat Kebajikan Good Shepherd (Kota Kinabalu, Ipoh), and Birthright (Klang) are the more established NGOs, frequented by both Muslims and non-Muslims. See also WAO’s booklet: “Single and pregnant” for a list of organizations that help single pregnant women.

Baby hatches are available in some areas to help an unmarried mother put her child up for adoption once it is born.

Are health clinic hours youth-friendly?
Some government health clinics are open till 9pm to ensure availability and accessibility of services.

Strategies and statistics

In each state, is it well known where abortion clinics are and is the quality good?
It depends. In every large city, there are at least a couple of clinics that perform abortions that people have heard about through the local grapevine. The local FRHAM clinic usually has a list of clinics with which to make referrals for women who request these services. These clinics are considered safe. Based on the population of Malaysian cities, it is estimated that there are at least 240 clinics nationwide offering abortion services, but not all have been vetted for quality of service or safety. RRAAM is in the process of developing a provider network of quality clinics.

What is the typical profile of women who seek abortions?
At one local clinic that has been studied, the vast majority are usually between 25-35 years of age and they are usually women who already have had a few children and have completed their families, or have pregnancies sooner than expected and wish to space their births. Women terminate these pregnancies for a variety of reasons. They most frequently mention having an abortion because they are not ready to care for a child (or another child), financial constraints, concern for or responsibility to others (especially concerns related to caring for other children), desire to avoid single parenthood, relationship problems, and feeling too young or immature to raise a child. Some pregnancies are terminated because they are a consequence of rape or incest.

Is time given to discourage a woman and make her change her mind about having an abortion?
No. The service providers affiliated with RRAAM uphold the right of each woman to make up her own mind regarding this difficult decision. Second-guessing her motivations for what is clearly a matter of conscience would be condescending and judgmental. By the time they enter a clinic, most women have already made a decision. For those who are still undecided, they are usually asked during pre-abortion counseling to think it over and return when they are sure of their decision.

Is there a strategy to remove abortion entirely from the Penal Code?
There have been several representations made to move the provision from the Penal Code to civil law. However, no action has been taken so far.

Can we package contraceptive use and access use as harm reduction for young people? Where do we begin?
In the needle exchange program in place for combatting HIV/AIDS, condoms are part of the package. That is one place to start integrating contraception with reproductive health programs.

Is there factual data on pregnancies by rape or incest?
No. Actual reported rape cases numbered 3626 in 2009 and have been rising annually. Reported incest cases numbered 385 in 2009.  There is no record of pregnancies by rape or incest. The one stop crisis centers in public hospitals are set up more to facilitate forensic investigations than to help rape survivors. They do not record data on pregnancies by rape or incest.

Emergency contraception could prevent up to 90 percent of the 25,000 pregnancies resulting from rape in the United States each year, according to studies published in 1998 in The Lancet and 2000 in the American Journal of Preventive Medicine. At least 9,000 abortions each year stem from pregnancies resulting from rape, according to the New York-based Guttmacher Institute. Many abortion funds report that high levels of women seeking abortion (up to 11 percent) are pregnant as a result of rape or incest, according to the Boston-based National Network of Abortion Funds (Ginty, Molly. 2005. “Some Hospitals Withhold Plan B After Rape.” Women’s ENews).

If Cytotec is available over the counter, how do we measure its usage rate?
Cytotec is approved by the World Health Organization for abortion but only as an off-label use. In Malaysia, it is only supposed to be made available by prescription. Since it is only for off-label use and is not sold over the counter for abortion but to treat gastric ulcers, it is not easy to collect or substantiate data regarding its use.

Are female condoms known or used?
They are available, but expensive. How friendly or conducive they are for women is another matter since methods which require women to insert things inside their bodies are not preferred. There are not many studies on the use of female condoms, and it is not known if they are promoted as widely as male condoms are in Malaysia.