INTRODUCTION Abortion on demand is not available in Malaysia.

But abortion is legal if it is performed for medical reasons that involve risk to the life of the woman, to preserve physical health and to preserve mental health as provided in Section 312 of the Penal Code and it has to be certified by at least two doctors1. Taking into consideration that 38 out of every 1,000 women aged between 15 and 49 years old go for abortion in Malaysia and the rate of illegal abortions is 0.1% or 500 per 500,000 live births yearly. Even though the act relating to abortion had been established since 1989, underground illegal abortions are on the rise slowly but constantly. The Star newspaper published on May 26, 2009 reported that the rate of illegal abortions is 0.1% or 500 per 500,000 live births yearly; 38 out of every 1,000 women aged between 15 and 49 years old had gone for an abortion. Abortion issue is always a controversial but it is also an important social issue that needs to be rationally addressed. In Malaysia, it largely remains a taboo subject for serious discussion so that it tends to be only mentioned as an issue of personal moral behaviour. Lives and chances to live is something very precious in the life of a man. Every soul will certainly appreciate the pleasures of life that is blessed by God, who created man. Even in all religions do not allow someone's life taken arbitrarily without proper justification and need for the purpose. Cases of abortion have become more severe in our society, when viewed on the impact received by the individual, family and community institutions generally so great that this issue can be categorized as national issues that impact in terms of economic, political, even social economies as well. While there is no use of the word murder , but the elements of 'actus reus' and 'mens reus still meet the elements of the crime of murder, especially in the case of abandoned babies or fetuses by four months of age and who is said to have breathed spirit and life like human beings. The difference is only that he is not allowed to live in this real world.

Malaysia Abortion Policy. Population Policy Data Bank maintained by the Population Division of the Department for Economic and Social Affairs of the United Nations Secretariat ; available from www.un.org/esa/population/publications/abortion/doc/malaysia.doc.

Cases of abortion in our society today, particularly among women is no longer an isolated issue or case moreover countries labelled as a country we have a system of Islam. The question is where is wrong and causing the number of cases the cause of this issue is increasing every day, but almost every day we are presented with such cases. The case is also not new, but it is already happening early human civilization, which distinguishes it was just the time and also the reason abortion is done. In terms of ethics , morality and human rights, abortion can be considered as a case that is a woman's right to do it , but in terms of longterm impact was that it is a matter that cannot be done arbitrarily and accepted by our society just like that. Abortion involves the life of the fetus that is growing and has the potential for life. Hence it is a matter that should be seen and studied more carefully in terms of legal and proper punishment to the offender's case. What is clear here, abortion is no longer a minority issue, but it is domestic in nature and universal substance, which is not only happening in our own country but around the world with a variety of reasons. The definition of abortion. Abortion as defined in Oxford Dictionary is the deliberate termination of a human pregnancy, most often performed during the first 28 weeks: concerns such as abortion and euthanasia. While Merriam-Webster Online Dictionary defined Abortion as a medical procedure used to end a pregnancy and cause the death of the fetus. The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus as: a. spontaneous expulsion of a human fetus during the first 12 weeks of gestation. b. induced expulsion of a human fetus c. expulsion of a fetus by a domestic animal often due to infection at any time before completion of pregnancy (compare with contagious abortion). Concise Medical Dictionary defines abortion as the expulsion or removal of an embryo or fetus from the uterus at a stage of pregnancy when it is incapable of independent survival (i.e. at any time between conception and the 24thweek of pregnancy)2. From the 2nd to 8th week of gestation, the developing organism is called an embryo, as is any animal at this early stage of primitive tissue and organ development. From then until birth, it is called a fetus, which simply means young unborn.

Oxford: Concise Medical Dictionary (Oxford University Press, 1998) p.2

There are two types of abortion in the medical terminology3 first, spontaneous abortion; abortion can occur spontaneously because for some reason the embryo was non-viable. This accidental occurrence is also known as miscarriage. It is also the natural way to prevent the birth of an abnormal child. Most cases of spontaneous abortion occur during the early stage of pregnancy and mostly because of the abnormalities of chromosomes.4 It is also cause by other factors too such as infection and due to the health conditions of expecting mothers. Most medical doctors described this condition as unavoidable abortion. Second, medically induced termination of pregnancy; it is an abortion that involves a normal viable embryo or fetus. This type of abortion is called intentional abortion, and its meaning is that there is an intention and it has been purposely planned for in order to avoid continuous of pregnancy. This type of abortion is also classified into two situations: ATherapeutic Abortion This situation of abortion is to stop the function of pregnancy in order to save the mothers life, it is the only treatment to cure the expecting women that her pregnancies might threatens her life or safety such as those who are suffering from heart disease, kidney disease, lung disease, neurological and psychiatric causes, cancers, Rubella, Embryonic Indications and other disease as prescribe by the certified doctors of the womens health condition. BSocial Abortion

This kind of abortion is an intended in order to avoid birth or birth control, maintain fitness and appearance or to cover up the obscene or economic problem or so and without a valid reason. This situation caused controversy and debate aspects from the point of ethics, religion and morality.

It is clear from these definition, the conclusion that abortion is called when there is any act or by direct action or by equipment or the like in order to remove or remove the fetus or infant from its place of origin of the woman's uterus deliberately and with great intent to kill. Obviously here, the element of intention in doing this act is very important in defining abortion and its use in determining the law. Literally, the loss is the removal or withdrawal of an embryo or fetus from the mother's womb. It can occur spontaneously and in most cases where it occurs spontaneously is caused by abnormalities in chromosome structure or unborn fetus. The word ' abortion ' itself leads to the meaning of an intentional act.
3 4

The British Medical Association Illustrated Medical Dictionary (Dorling Kindersley Limited, 2002)p.5 Pregnancy and Miscarriage retrieved from: http://www.webmd.com/infertility-andreproduction/guide/pregnancy-miscarriage

There were 190,972 abortions notified as taking place in England and Wales in 20125. There is no uniformity in the law on this issue of abortion. Some countries allow it done legally and there are countries that do not allow it and not about where no such law enacted on this issue. The Concept of Abortion in Islamic Jurisprudence. In Islamic Jurisprudence, abortion is referred to as a situation where a womans pregnancy is dropped after settling in her womb whether before embryogenesis or after. The literal meaning of abortion is applicable to doing the action by someone which according to the jurists is not out of the literal meaning but in many occasions they express it more often by projection, subtraction, dumping and stillbirth.6

Abortion in Islam. In the days of ignorance, the culture of the people during the time, they used to kill and bury their children on the fear of poverty and fear of captivity and shame especially on their daughters. When Islam came, the act was prohibited and against the teaching of Quran. Allah SWT says in the Quran (Surah At-Takwir, 8-9) And when the female (infant) buried alive, is question ~ for what sin was she killed?

When Islam came abortion was not widespread in the society as it is today, but they had the culture of killing young boys after their birth in the days of ignorance; they used to bury their children on the fear of poverty and to ease their expenses, and they used to bury their daughters alive for fear of captivity and shame.

After that the act of burial totally disappeared in the Islamic society, but unfortunately people began to return to the ignorance period by practicing abortion and miscarriage on the claim that it is a personal and legitimate issue (Kanaan, 2000). And the Muslim scholars began to refer to it as induced abortion because of the severe damage it causes to the mother and the fetus, because the fetus is considered alive from the beginning of pregnancy, and his life is respectable in all stages especially after the soul is breathed into the fetus (after the fourth month). Given all that, most scholars hold the view that induced abortion is prohibited except for a legitimate reason both before and after breathing the soul in the fetus. But few of them
5

Abortion Statistics, England and Wales: 2012 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/211790/2012_Abortion_Sta tistics.pdf 6 Jurisprudence Encyclopedia Vol. 2

are of the opinion that abortion is permitted before breathing soul into the fetus, while others allow it only before forty days of the age of the fetus. However, if a legitimate reason for abortion arises then it is allowed, e.g. if the continuous existence of the fetus will put the survival of the pregnant woman at risk, then in this situation abortion is allowed either before or after breathe. And a woman who got an illegal pregnancy must be given a medical precaution; it is not permissible to abort her fetus unless when there is a necessity in that regard because the fetus has no any fault and his life is inviolable religiously in all roles (Kanaan, 2000).

The Concept of abortion in Malaysian Laws Section 312 of the Penal Code 1998 states that a termination of pregnancy is permitted in circumstances where there is risk to the life of the pregnant woman or threat of injury to her physical or mental health. Although terminations are permitted, the law is nevertheless limited. Under the Penal Code it is the doctor alone who makes the decision as to whether a termination should be carried out. Abortion is a sensitive issue and a source of contention in Malaysia since the old to the present day. Section 312 of the Penal Code permits abortion in order to save the life of the mother; thus, it is understood from this Section that abortion is not allowed if the mothers life is not in danger (Penal Code (Act 574, 1998), Section 312316). In 1989 of the Penal Code legalized abortion if it is at the request of a physician or specialist. As in April 1989, Section 312 of Act 727 of the Penal Code was amended which then allowed a medical practitioner registered under the 1971 Medical Act (meaning all medical doctors practicing legally in this country) to terminate 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 and physical health of the pregnant woman greater than if the pregnancy we re terminated. All registered medical practitioners, not necessarily specialists, are permitted to perform abortions according to the Act. Section 313 applies only when consent is not obtained and Section 314 when it results in the death of the pregnant woman which prescribes more serious penalties.

Any violation of the provisions of the Penal Code with the woman's consent merits fine and up to seven years' imprisonment for both the woman and the provider if the woman is quick with child; fine and up to three years'. If she is not quick with child and 10 years'

imprisonment for the provider if the woman dies. (Quick meaning when fetal movements are felt, usually at 16 weeks of gestation) If the woman does not consent, the person performing the abortion is subject to fine and up to 20 years' imprisonment payment of a fine.

From this section stated that women have the right to determine the course of their lives and they have the right to make decisions about their own bodies. Hence, women must be equipped with knowledge and be aware of the options available to them, so that they can make informed decisions. However expert a doctor may be, doctors will never be fully aware of the facts of a womans circumstances and so cannot make a completely informed decision about the appropriateness of a given option. It is the woman who has this understanding and it is the woman who should be legally and practically empowered to make decision.

In Malaysia both 1st and 2nd Trimester abortion services are available right up to 22 weeks gestation. The methods most commonly used as D&E and hysterotomy. Stipulations under the law are not widely known. Many women therefore have difficulty accessing quality contraceptive and legal abortion services. A survey of reproductive health clients in 2008 found that as many as 41 percent of the women did not know the legal conditions for abortion. Laws pertaining to abortion are rarely discussed and there are no overt attempts to educate women on its legal status.7 The causes of abortion in Malaysia are mainly to save the mothers life and maintain the physical and mental health and economic and social problems. The reasons for permissibility of abortion by the Malaysian government are to save the mothers life and maintain physical and mental health8. The permissibility or prohibition of abortion depends on various reasons from the political, religious and cultural aspects. Many countries have prohibited abortion because the fetus has right to life since the beginning of his mothers pregnancy and should not be deprived from that right.

Among these countries there are Islamic countries where they prohibit abortion and oppose it to be taken as a way of birth control. Moreover, some European countries also prohibit abortion such as Iceland where to this day it prohibits abortion and considers it a murder. On
7

A Study of Knowledge, Attitudes and Understanding of Legal Professionals about Safe Abortion as a Womens. 8 Abortion Policies: A Glogal Review, 1992

the contrary, some states permit abortion arguing that the safety of the lives of women should be given a priority, although the fetus also has the right to life, but since there is a conflict between the mothers lives with that of the fetus, the interest of the mothers should come first. Thus, according to them abortion should be allowed if it is clear there is going to be harm to the mothers health.

Legal position in United Kingdom As in 1803, English Common Law provided the permission to abortion as if it was carried out before the quickening where the term reached about 20-24 weeks when it was believed that the soul has entered the body. An abortion done after the stated conditions were regards to be an offence under the Common Law, but there were no fixed penalties and the woman conduct the abortion was not necessarily held responsible. Later the law was amended and the termination of pregnancy has become criminal offence to the offenders from the time of conception. The Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, permits termination of a pregnancy by a registered medical practitioner subject to certain conditions. Legal requirements apply to the certification and notification of abortion procedures. Within the terms of the Abortion Act, only a registered practitioner can terminate a pregnancy. The doctor taking responsibility for the procedure is legally required to notify the Chief Medical Officer (CMO) of the abortion within 14 days of the termination, whether carried out in the National Health Service Hospital (NHS) or an approved independent sector place and whether or not the woman is a UK resident9.

Abortion Statistics, England and Wales: 2012

Section 1(1) of the Act stated that a legally induced abortion must be certified by two registered medical practitioners as justified under one or more of the following grounds and formed in good faith10: (a) that the pregnancy has not exceeded its twenty fourth week and the continuation of pregnancy creates risk, greater than if the pregnancy were terminated, of injury to the physical and mental health of the pregnant woman or any existing children of her family; or (b) that termination is necessary to prevent grave permanent injury to the physical and mental health of the pregnant woman; or (c) that the continuance of pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical and mental abnormalities as to be seriously handicapped.

Section 1(2) of the Act, as in an emergency, certified by the operating practitioner as immediately necessary under the following situations: to save the life of the pregnant woman and to prevent grave permanent injury to the physical or mental health of the pregnant woman.

The rights to prevent abortions in UK legislation.

The Abortion Act 1967 was silent to allow whether anyone has the right over an intended abortion. The law also cannot be used as a means of birth control. The law maintains the right of women and the fetus and punishes who aborts her fetus without good reason and in accordance with the conditions mentioned in the law. If we look and the heavenly religions, we will find that they all categorically forbid abortion because it kills innocent soul. Ruling on abortion in the Malaysias Penal Code

Abortion is prohibited in the Penal Code in Section (312-316) except in case of necessity like saving the mothers life. Hence, anyone who voluntarily causes the abortion of a pregnant woman would be punished by imprisonment which may be up to three years or fine or both

10

Section 37 of The Human and Fertilization Embryology Act 1990

except when it is for the purpose of saving the mothers life. As for abortion in the case when the pregnant woman feels the movement of the fetus in her womb, it is punishable by imprisonment which may be up to seven years or fine. This Section is related to abortion with the consent of the pregnant woman (Incorporating ALL amendments as at 15th November: (Penal Code (Act574) 1998). The offender may either be the pregnant woman herself or others because the word (whoever) is general to cover the pregnant and others.11 A person will consent to something by doing the act and causing it, knowing that he does such act with his own consent. Consent here means that the doer of the abortion has done it without coercion by others.12

This means that it is not necessary that the baby begins movement. The projection means to accelerate the removal of fetus outside the mothers womb at any stage of pregnancy before it is viable for life. But the practice of abortion to save the life of the pregnant woman is not considered a crime on the basis of this article. This is not only in the Malaysian law but also in other laws. Compared to the UK legislation there is a case that emphasizes on this matter and it is13, where a girl of less than fifteen years got pregnant as a result of rape and a specialist doctor in a London hospital performed abortion for her; this doctor was regarded as an offender because the jury was of the opinion that the process has not been conducted in order to save the life of the pregnant. It is the responsibility of the doctor to do abortion only when there is reasonable cause with sufficient knowledge that the patient is at the verge of death; and according to the doctor had the pregnant continued in her situation that would have been detrimental to her health and spirit and thus there should be no punishment. The following are two cases to illustrate how the law deals with the crime of abortion in Malaysia. In the case of Dr. Nadson Kangalingam v Public Prosecutor14, the court sentenced the defendant who is an obstetrician and gynaecologist according to Section 312 of the Penal Code for being a voluntarily cause of abortion to a pregnant woman. Based on the evidence, the defendant did not take certain things into consideration and did not reach to a convincing result that abortion was necessary in order to save life of the woman. In addition, there was
11 12

Law of Crimes with List of Malaysian cases, 1998) Penal Code p 34 13 Law of Crimes, v. 2., p 1567 14 (1985), 2 MLJ 122.

no indication that the womans life was in danger if the pregnant continues. So the court was satisfied that the accused shall be sentenced for causing abortion. The judge held that the abortion was not done in a good faith. The abortion is dangerous and cannot be done except as a last resort to save the lives of pregnant women from suffered. The defendant did not think carefully and did not take any adequate steps to check the woman. The fact the defendant found that the woman was suffering from expansion and swelling, this is only a result of the clinical examination. The case of Munah Binti Ali v Public Prosecutor15 is an example of an attempt by the accused to cause abortion of a pregnant woman. The defence lawyers pointed out that the woman was not pregnant and that the court should be satisfied that the woman was pregnant before sentencing. But the judges rejected this argument and pointed out that the provision on abortion attempt does not necessarily require that the court is satisfied that the woman was pregnant before judgment. The judges referred to Section 511 of the Penal Code which provides that to enter hand in the pocket of someone else for theft, regardless of whether the pocket is full or empty is equal to insertion of a tool in the vagina of a woman for the sake of abortion regardless of whether the uterus is empty or not. This clearly demonstrates that the law on abortion in Malaysia is strict and severe. Regarding Good Faith we refer to Section 52 as the following, Good Faith is not accepted on something or performing it if is not done with caution16. Fetal Movement: A pregnant woman is feeling the movement of the fetus in the third or fourth month of pregnancy. Fetal movement quick with child means that the baby begins to move in the womb.

Section 312 related to abortion provides the following, "Any person who commits the crime stipulated in Section 312 without the consent of the pregnant woman, whether the pregnant woman feels the fetal movement or not, shall be punished by imprisonment of up to twenty years and fine17. This Section is clear except the word consent. To know the meaning of this word, we refer to Section 90 of the Penal Code: Consent given under fear or misunderstanding and the approval of child or mentally deficient person18.

Approval or consent given under the following is not considered under this Section:
15 16

(1958) 1 MLJ 159. Penal Code, p 36. 17 Penal Code p 118 18 Penal Code p 42.

(a) Consent given by a person in a state of fear or misunderstanding, or if the person who does the act knows and has what to believe that the consent was given as a result of fear or misunderstanding. (b) Consent given by mentally deficient person or under the influence of intoxicants, or person that cannot know the truth and the result of his consent. (c) Consent of those under the age of twelve years, unless provided otherwise in the text.

We know from this Section that a pregnant woman must be full of reason and not drunk and can know the truth and the result of her consent, and consent must not be given in a state of fear and misunderstanding, and the age of the person that gives the consent must be more than twelve years, otherwise her consent is not accepted. Section 314 states as follows: Death resulting from abortion attempt without the consent of the pregnant woman19, Whoever causes the death of a pregnant woman as a result of abortion attempt would be punished by imprisonment of up to ten years and fine. And whoever causes death of a pregnant woman in abortion attempt without her consent would be punished with imprisonment of up to twenty years.

Section 315 states: Practice which aims to impede the fetus to be born alive or die after birth and whoever involves in any exercise designed to impede the fetus to be born alive or die after birth, if it is not done with the purpose of saving the life of the pregnant woman is punishable with imprisonment of up to ten years or fine or both20.

Section 316 provides: Causing the death of the moving fetus in the womb of a pregnant woman of attempt murder: Whoever causes the death of moving fetus in the womb of a pregnant woman by any attempt has committed murder, and would be punished with imprisonment of up to ten years and fine21.

19 20

Penal Code p 118 Penal Code p 119 21 ibid

CONCLUSIONS

After studying the provisions of criminal law in Malaysia, we can summarize those relating to abortion in the following: Abortion is prohibited unless when there is necessary reason, such as the aim to save the mothers life otherwise it is prohibited. Abortion is also permissible with the request of a specialist doctor, and is not detrimental to the health of the pregnant woman, and must be performed before the fourth month of pregnancy with the consent of the pregnant woman. With regard to consent in the Penal Code, a person must not be in the state of fear or misunderstanding, and from a person of full reason and not drunk, and can know the truth and consequences of his consent and must be more than twelve years old. Whoever violates this law in Malaysia will be punished by imprisonment or fine. Abortion as stated in the Malaysian law makes sense and has no any negative effect for Malaysia.

Thus, it can be concluded that the conditions that can allow abortion can be classified into four; related to the fetus, the pregnant, the doctor and the abortion as follows: (a) Conditions related to the fetus * The age of the fetus should not be more than four months. * The fetus must not have started moving in his mothers womb (b) Conditions related to the pregnant woman * She must consent to the abortion; and there must not be coercion and must know the consequences of the abortion. * The abortion must not put her health and life in danger. * She must be of full reason. * She must be more than twelve years of age. (c) Conditions related to the doctor * He must be a specialist. * He must get the consent of the pregnant woman. * He must have license to perform abortions. (d) Conditions related to the abortion process * To be a request from a specialist doctor. * Not detrimental to the health of the pregnant woman.

(4772 words exclude Bibliography)

BIBLIOGRAPHY

Abortion Statistics, England and Wales: 2012 retrieved from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/211790/2012_ Abortion_Statistics.pdf January 2014 Abortion Policies: A Global Review, New York: Department of Economic and Social Development, 1992. A Study of Knowledge, Attitudes and Understanding of Legal Professionals about Safe Abortion as a Womens retrieved from http://asap-asia.org/publications/2009/Malaysia_Abortion_Booklet_Update.pdf January 2014 Britain Abortion Law in Northern Ireland http://www.reproductivereview.org/images/uploads/Britains_abortion_law.pdf January 2014 Jurisprudence Encyclopedia Vol. 2 Kanaan, Ahmed Mohammed., 2000. Medical Jurisprudence Encyclopedia: Collection of rulings in Jurisprudence, health, disease and medical practice. Amman: Dar- annafais, 1st Edition. Law of Crimes with list of Malaysia Cases. K.L., 1998. International Law book Services, 24th Edition. Malaysia Abortion Policy. Population Policy Data Bank maintained by the Population Division of the Department for Economic and Social Affairs of the United Nations Secretariat; available from www.un.org/esa/population/publications/abortion/doc/malaysia.doc. Penal Code (Act 574) Pregnancy and Miscarriage retrieved from http://www.webmd.com/infertility-and-reproduction/guide/pregnancy-miscarriage January 2014 The Human and Fertilization Embryology, Act 1990. The Abortion Act 1967 (1958), 1 MLJ 159 (1985), 2 MLJ 122