Age legalities

Is a doctor legally at risk from parents if a 14 year old girl comes for an abortion without parental consent?
Yes. Parental consent is required by law for any treatment given, especially surgical termination. There are rare exceptions made, however. In the UK, there was a legal ruling in the Gillick case, where the dispute was over prescribing contraceptive pills for underaged girls, but the right to do so was finally upheld by the House of Lords if the girl was considered by the doctor to be of ‘mature mind’.

Apart from the statutory rape issue, are there other complications in providing an abortion to an underaged girl without her parents’ consent?
Yes. Consent from a guardian is required under law for medical procedures on a minor under age 18. A minor is not legally considered mature enough to make decisions, unless it is an act of necessity to save a life.

Note, however, that the United Nations Convention on the Rights of the Child (CRC) recognises that adolescents are capable of making decisions about their lives and that these decisions should be respected. It also recognises their right to privacy. Under the CRC, governments are required to “respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.” The CRC, thus, limits the parental role as the adolescent become capable of making independent decisions. A general rule is young people capable of being sexually active without parental control are equally capable of receiving SRH counseling and care without parental control (ARROWs For Change. 2006. “Evolving Capacities of Adolescents“).

If the parents consent to an abortion for a minor, is the doctor still at risk?
No. The law permits the medical practitioner to perform the abortion. Rape and incest cases are normally accepted as unequivocal mental health grounds for termination. However, the doctor needs to make a notification of statutory rape to police if this has not yet been done.

If parents request the doctor not to make a police report for statutory rape, what can the doctor do? Is s/he liable in any way?
This complicates matters. Termination laws provide a valid defence and a doctor cannot be charged under Sections 312 or 313 of the Penal Code since the mental or physical health conditions of the law on pregnancy terminations can be applied. But if the doctor knows a crime has been committed, s/he is required by law to notify police.

If a young girl were to walk into a hospital and request this service, would a doctor perform an abortion?
If there is a legal basis for the abortion, the service should be provided. Consent from a parent or guardian is required under law for anyone under the age of 18. However, some hospitals do not provide this service due to misconceptions about the law or biases of doctors themselves.

A schoolgirl had consensual sex with her boyfriend and got pregnant. The mother begged the hospital for an abortion. She called the police to come as evidence of statutory rape. The police said that abortion is illegal. Who is to be believed – the police or Attorney-General’s (AG) chambers? Do we need a referral to a psychiatrist to determine mental health?
Believe the AG’s chambers. In Malaysia, abortion is permitted under the following circumstances:

  1. to save the woman’s life;
  2. to protect the woman’s physical health; and/or
  3. to protect the woman’s mental health.

If a female under the age of 16 has sex with a male, it is legally statutory rape. It is up to the medical practitioner to determine if the conditions for an abortion are satisfied. There is no need for a referral to a psychiatrist unless the doctor is unable to make an adequate mental health assessment alone.

Is it individual hospital policies that do not allow contraceptive services for young and unmarried people?
Although there are no individual hospital policies, interpretation of Ministry of Health (MOH) guidelines does tend to vary by hospital. Some hospitals give contraception to women on request, without asking them for marital status, while others do not. Checking for marital status is either no longer required or, pending changes in MOH policy, not to be required in future. null clinics, formerly known as Family Planning Associations or FPAs, which are partners in the national programme no longer ask for marital status when offering contraceptive services.

The Ministry of Health is now offering contraceptive services to high-risk young people i.e. drug users, HIV-positive persons and those with multiple sexual partners.

For those under 18 without parents’ consent, can a doctor perform an abortion for them?
Under the law, a doctor cannot perform a surgical procedure without parental or guardian’s consent. The doctor can listen and try to convince them to tell their parents. If they live far away from their parents with a guardian, that person may sign, although strictly speaking, as long as parents are alive, they should sign the consent form.

What is the age limit for signing a consent form for performing an abortion? Who needs to sign if the person is under-aged?
The age of majority is 18 years old. A parent or guardian is responsible for those underage and needs to sign the consent form.

What are the options for abortion available to a pregnant single girl? The law only applies to girls aged 18 and above.
The abortion law does not specify age or marital status as limitations. Girls under 18, with parental or guardianship consent, may be eligible for an abortion provided they satisfy the legal requirements for one. If the girl is under 16, it is technically statutory rape, and her options are indeed limited if a police report is not made.

It costs RM28 for contraceptive pills. For unmarried youth without a marriage certificate, can they buy pills at the Family Planning Association (FPA)? Is the cost subsidized?
Some FPAs (now called FRHAM) offer these services discreetly. One state FPA offers contraceptive pills for single people if they are above 21 years of age at an affordable RM4.50 per cycle. With bulk purchasing, this FPA has a community concept program whereby general practitioners can register to obtain subsidized contraceptives from them. Condoms are sold at 50 sen each per pack of three, or can be bought in bulk in loose packs. Free contraceptives are given to 18-24 year olds from marginalized groups such as drug-users and HIV-positive youth.

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.