Although induced abortion is illegal in Malaysia, the terminatination of pregnancy is legally allowed if done by qualified doctors. – AFP/Relaxnews pic, December 5, 2014.
A foreign worker from Nepal has become the first woman in Malaysia to be imprisoned for undergoing an abortion.
The Bukit Mertajam sessions court last month found Nirmala Thapa guilty of terminating her pregnancy and sentenced her to a year’s jail.
Nirmala, 24, was six weeks pregnant when she went to a clinic in Bukit Mertajam on mainland Penang for the abortion on October 9.
It was reported that she was arrested at the clinic that day when the premises was checked by officers from the Health Ministry’s Private Medical Practice Control Unit (Ukaps) during a routine inspection.
Nirmala, who worked in a factory in Penang, was charged on October 13 under Section 315 of the Penal Code for allegedly preventing a child from being born alive.
Under the section, it is an offence to prevent a child from being born alive or to cause it to die after birth. The offence is punishable by imprisonment for up to 10 years, fine or both, if the act is not done in good faith for the purpose of saving the life of the mother.
Nirmala was found guilty last month and sent to jail.
Dr Choong Sim Poey of Reproductive Rights Advocacy Alliance Malaysia (RRAAM) said Nirmala was the first woman in Malaysia to be sent to jail for having an abortion.
"We have checked with our legal experts. They could not find a previous conviction of this nature," he said.
The women's rights and health advocacy group's co-chair said what happened to Nirmala had raised questions about women's rights and how Malaysia treated migrant workers.
Although induced abortion was illegal in Malaysia, the termination of pregnancy is legally allowed if done by qualified doctors, as provided under Section 312 of the Penal Code.
Under this section, abortion is permitted if a registered medical practitioner is of the view that the continuance of the pregnancy will risk the woman's life or cause injury to her mental or physical health.
"Referring to Section 312, abortion is permitted," Dr Choong said, adding that there was also a 2012 document issued by the Health Ministry on pregnancy termination, which confirmed that the section allowed abortions performed by doctors.
A check with the ministry's website revealed that the Termination of Pregnancy Guidelines for government hospitals defined abortion as "the removal of an embryo or foetus from the uterus at a stage of pregnancy when it is incapable of independent survival (500g or 22 weeks gestation). It may be spontenous miscarriage or induced for medical or social reasons".
The ministry's guidelines are also confined to "procedures to remove an embryo or foetus where the pregnancy is less than 22 weeks gestation, or if the gestation is unknown, where the foetus is estimated to be less than 500g".
Dr Choong said Nirmala's conviction was "unusual" and regretted that she was "treated like a common criminal" for terminating her pregnancy, something many women have done.
"She did what countless other women have done. Why was Nirmala targeted? She was really unlucky.
"We learned that the girl did not even have a translator or a lawyer with her when she was taken to court," he said, adding that Nirmala had been in distress since she was arrested and sent to the Jawi prison and then the Pokok Sena prison in Kedah.
Dr Choong said it was not uncommon for foreign women working in Malaysia to have their pregnancies terminated quickly upon discovery out of fear of risking their jobs.
He said some of them might be tied to contracts with clauses stating that they were not to be pregnant while working in the country.
"I am not sure what repercussions they face for violating that clause. They might lose their jobs and have to pay their agents a penalty.
"That is why they quickly have abortions... such a clause is unfair to the women.
"This also raises the question of how we treat migrant workers. They have already spent so much money, paying premium to their agents, to come to Malaysia to get work, and then they must save money and send home as much as they can," he said.
Tenaganita director Aegile Fernandez said foreign women workers were tested for pregnancy when they enter the country for work or seeking to renew their work permits.
Fernandez said if the workers fail any of the tests, they would be deported.
“It is stated in their contracts that they will lose their jobs and be sent home if they get pregnant... So in Nirmala's case, she probably had no choice.”
She added that the group was also looking into Nirmala’s case.
Abortion is considered a taboo subject in Malaysia even though it is common. It was reported in the press two years ago that more than 90,000 abortions were done annually, according to the National Population and Family Development Board.
Although government hospitals provide abortion services, it is widely known that women generally go to private clinics to have their pregnancies terminated.
According to Dr Choong, an abortion can cost anything from a few hundred ringgit to a few thousand. He said the price depended on the clinic, adding that some doctors exploited the situation.
"An abortion can be just a 10-minute procedure. It is the most common procedure for women, but it is also the most overpriced," he said.
Meanwhile, Penang Ukaps clarified that Nirmala's case was not under the unit's jurisdiction. A spokesperson told The Malaysian Insider that action taken under the Penal Code was under the police's jurisdiction.
The spokesperson declined to elaborate on the case involving the doctor of the private clinic where Nirmala had her abortion, because an investigation was ongoing.
Asked if there were many private clinics providing abortion services illegally in the state, she said Ukaps could not reveal the "confidential data", adding that the unit was always conducting inspections.
The Nepalese Embassy could not be reached for comment.
- TMI
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