Termination of Pregnancy (TOP) is defined as any procedure to remove an embryo or fetus (from the uterus) where the pregnancy is less than 22 weeks of gestation or if the gestation is unknown, where the fetus is estimated to be less than 500 grams.

Note: The 22 weeks of gestation (period of viability) refers to the stage of pregnancy, below which the fetus is deemed incapable of independent survival.

Termination of Pregnancy is legally permissible under specific circumstances in Malaysia. There is (currently) no specific legislation governing TOP in Malaysia. The related legal aspects are covered under the Malaysian Penal Code (Act 574): OFFENCES AFFECTING THE HUMAN BODY (Sections 312 to 318): Causing Miscarriage; Injuries to Unborn Children; Exposure of Infants; and Concealment of Births.

The basis of the law

Section 312: Causing Miscarriage (as amended), read together with the explanation and exception clause forms the basis of the legal status of TOP in Malaysia. Originally this section stated:

“Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine”.

Explanation: A woman who causes herself to miscarry is within the meaning of this section.

Section 312 as above did not permit TOPs under any circumstances (at any gestation). This section was amended in 1971 to read as follows:

“Whoever voluntarily causes a woman with child to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine”.

The above amendment permitted TOPs (only) where the woman’s life was at risk, the intention being to protect women’s life and health from unsafe abortions performed by untrained providers. This was a significant improvement (in the law) in the then prevailing situation, where Maternal Mortality was high and Contraceptive Prevalence Rates were low.

The Penal Code Amendment of 1989 (Act 727) introduced the following Exception Clause to be read in conjunction with Section 312.

Exception: “This section does not extend to a medical practitioner registered under the Medical Act 1971 (Act 50) who terminates the pregnancy of a woman if such medical 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”.

The 1989 amendment permits (legally registered) Medical Practitioners to perform TOPs in conditions where it is deemed that there is risk to the life, injurious to the physical health or injurious to the mental health of the pregnant woman greater than if the pregnancy was terminated (any one of these conditions being sufficient for a legal TOP).

The earlier strict requirement of “saving the life of the mother” had given way to weighing reasons for and against continuing a pregnancy. The assessment and justification of the grounds for a TOP is vested with a single registered Medical Practitioner (who by law need not be a Specialist). The amendment also does not define the meaning of risk to life or injurious to the physical or mental health of the pregnant woman. This burden of proof is entrusted solely with the Medical Practitioner (who by qualification and experience) is deemed the appropriate person to perform this evaluation and justify the grounds for the TOP.

When evoking the mental health clause, the opinion of a psychologist or psychiatrist is not a requirement unless deemed necessary by the attending doctor (in cases of severe depression or suicidal risk)

Note: Section 312 applies to all gestational ages (woman with child and woman quick with child) but the Exception Clause, uses the medical definition of “Termination of Pregnancy” and is applicable only to pregnancies less than 22 weeks of gestation or if the gestation is unknown, where the fetus is estimated to be less than 500 grams. TOPs performed by a non-medical practitioner or the pregnant woman herself, remains a criminal offence.

Section 313: Causing miscarriage without woman’s consent

“Whoever commits the offence defined in section 312, without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine”.

Section 313 deals with consent and deems it a more serious offence when consent is not obtained from the pregnant woman prior to the procedure. It is a professional and mandatory requirement that the Medical Practitioner obtains informed consent and documents this accordingly.

The following outlines appropriate consent applicable in differing situations:

Adult Women: Consent from the woman only (legally the consent of the husband is not required). With married Muslim women, the husband’s consent is necessary as per religious requirements. Married non-Muslim women should be encouraged to discuss the TOP with their husbands.

Under-aged girls (< 18 years): Consent from parents, legal guardians, child protector or the state (in that order).

Unsound or mentally challenged women: Consent from parents, legal guardians, or the state (in that order).

Section 314: Death caused by act done with intent to cause miscarriage. If act done without woman’s consent

“Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the act is done without the consent of the woman, shall be punished with imprisonment for a term which may extend to twenty years”.

Explanation: It is not essential to this offence that the offender should know that the act is likely to cause death.

Section 314 provides that at all material times any act (TOP) that causes the death of a woman with child may be punished with a heavier sentence than in a case where the woman did not die.

It is commonly held that the exception under Section 312 also applies to Section 314. The defence of “good faith” mentioned in Section 312 would also be available (on proof of the necessary facts) in a case of prosecution under Section 314 even though the defence is not mentioned in Section 314.

Termination of pregnancy and the Ministry of Health

To ensure consistent understanding and practice amongst healthcare providers across the various levels of care, the Ministry of Health Malaysia developed “Guidelines on Termination of Pregnancy (TOP)” for hospitals in the Ministry of Health (September 2012). The 1989 amendments to the Malaysian Penal Code Section 312 and its Exception Clause has been endorsed and incorporated into these guidelines.

The MOH Guidelines stipulate that the TOP should only be done in a setting with Specialist OBGYN support to ensure early identification and management of any complications. It is also a requirement that two medical practitioners, one of whom is a specialist, should concur that the TOP is indicated.

Termination of pregnancy and the Malaysian Medical Council

Termination of Pregnancy is addressed in the Malaysian Medical Council, Code of Professional Conduct (CPC). This Code (as adopted by the Malaysian Medical Council at its 46th Meeting, 9th December 1986) stated the following:

Abuse of professional privileges and skills

2.1 Abuse of Privileges Conferred by Law

2.1.5. Induced Non-therapeutic Abortion

“The Medical Council regards induced non-therapeutic abortion a serious infamous misconduct and if proved to the satisfaction of the Council, a practitioner is liable to disciplinary action. A criminal conviction in Malaysia or elsewhere for the termination of pregnancy in itself affords grounds for disciplinary action”.

It is the understanding that a “Termination of Pregnancy” performed by a registered medical practitioner as provided for under the Exception Clause in Section 312 of the Malaysian Penal Code (1989) as above, would not constitute an “Induced Non Therapeutic Abortion”.

This Code of Professional Conduct (CPC) was revised in 2019. A draft of the revised version was made available to the medical profession for comments and feedback.

The Final Version of the CPC 2019 (as adopted by the Malaysian Medical Council at its 388th Meeting, 18th June 2019) does not make any reference to Abortion or Termination of Pregnancy.

In Malaysia, TOP is not available on demand. Instead it is legally permissible in specific medical circumstances as assessed and identified by registered medical practitioners. The said 1989 amendments to the Malaysian Penal Code and the MOH Guidelines 2012 are freely available on the public domain. Many legislators, medical practitioners, administrators, academicians and the public however remain unaware about this. This ignorance has often resulted in unwarranted slurs on medical practitioners performing “Termination of Pregnancy” well within the legal and professional framework of Malaysia.

-- BERNAMA

(An earlier version of this article was previously published in the December 2019 Issue of Berita MMA)

Prof Dato’ Dr Hj Mohamad Farouk Abdullah is the Dean and Clinical Professor of OBGYN at Perdana University Graduate School of Medicine. He is also a passionate Advocate for Sexual and Reproductive Health and Rights (SRHR).