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TO a lot of people, carrying a child is a joyful and blessed moment in the journey of life. However to some, the news that one is to become a parent is an unexpected or even an unwanted "gift" knocking on their door. In such a case, abortion seems to be the most viable way to send the gift away.

WHAT IS THE LAW ON ABORTION?

The US Supreme Court decision of Roe v Wade held that a woman’s right to abortion is determined by her stage of pregnancy and that she has a right to choose to have an abortion during the first two trimesters of pregnancy. After "viability" (six months) when the unborn child could survive if delivered, the state may prohibit abortion unless it is deemed necessary to preserve the mother’s "life or health".

In India, abortion was legalised under the Medical Termination of Pregnancy Act, 1971. Under the Act, pregnancy of up to 20 weeks may be terminated with the certified opinion of one or two registered medical practitioners, depending on the stage of pregnancy, if the medical practitioner(s) is/are of the opinion, formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.

A pregnancy may also be terminated if it occurs as a result of rape or failure of a contraceptive device used. Disability-related abortion is built into the Act which permits abortion up to 20 weeks if there is a pre-natal diagnosis of congenital defects. However, abortion beyond the prescribed statutory limit of 20 weeks is illegal in India.

The Niketa Mehta case in August 2008 led to a nationwide debate on India’s abortion law. The High Court of Mumbai rejected a petition to abort filed by a woman upon being informed during the 24th week of pregnancy that her baby had a congenital heart blockage. Four days after the court rejected her petition, she suffered a miscarriage. Her case prompted the government to announce that it would consider reviewing the law.

In Malaysia, after a 1989 amendment to the Penal Code, abortion is permissible if it is to save the woman’s life and to protect the woman’s physical or mental health. Contrary to popular belief, abortion is legal in certain circumstances in this country.

OPPOSING VIEWS

Abortion is always perceived to be a sensitive and private matter with ethical, moral or religious connotations. There are two different groups in the abortion discourse.

"Pro-life" groups believe that a human life begins at conception, while "pro-choice" groups prioritise the autonomy of a woman over her body, and her rights to privacy and reproduction. The debate has been on the conflict between the rights of the pregnant woman and the rights of the unborn.

The pro-choice argument in extreme cases weighs the imminent welfare of the mother against that of the unborn. It is a difficult choice to be made.

Similarly, the pro-life argument must concede that even if abortion is banned, illegal abortions will take place. These abortions will go against the very notion of upholding the sanctity of life as unregulated abortions done in secret are likely to put women’s lives at risk.

A common goal shared by both groups must be to minimise the necessity for abortions except in extreme circumstances such as in cases of rape, incest, where the child may be deformed or where the pregnancy will endanger the woman’s life.

RIGHTS OF AN UNBORN UNDER THE CONSTITUTION

Save in exceptional circumstances, taking away an innocent life can never be justified. Assuming that a foetus can only feel pain after 28 weeks, is it morally justified to kill it just because it would not feel the pain and would not know what is happening to it?

Should abortion be recognised as a constitutional human right or should the rights of an unborn be protected by our Federal Constitution? An individual, as a person, is accorded certain fundamental rights and liberties by the constitution. However, our constitution is silent on whether the definition of "a person" includes a foetus which forms at the point of conception.

In the absence of an express provision, "life" begins upon the birth of the baby. An unborn, in our constitutional law context, does not seem to have rights. Contrast this with Article 4 of the American Convention on Human Rights 1969 which protects a person’s life "from the moment of conception".

But does an unborn have no rights whatsoever? Our law has recognised the interests of the unborn infant. For instance, in the administration of the estate of a deceased person or property subject to a trust, the interests of the unborn infant who cannot be ascertained may adequately be represented by a trustee.

By analogy, one may argue that there exists a relationship of trust between the mother and the
foetus, where the mother is the "trustee" of the unborn and has the duty to safeguard its rights and interests.

For the moment however, the rights of an unborn have yet to come within the purview of the constitution. The time is ripe for constitutionalists to ask whether the rights of an unborn ought to have a place in our constitution.

At the same time, there is a need to review our Penal Code to see if there are any loopholes in the law. For instance, what about cases of deformed children; or the case of Niketa Mehta where the miscarriage following the court’s refusal might have or had caused grave injury to the woman’s physical and mental health?

Abortion among the young is common. Sex education, contraception and responsible sexual activity need to be encouraged. It is unreasonable to expect complete compliance, but early, prudent action will minimise unwanted pregnancies.

Society too has to change its negative attitudes and perceptions of children born out of wedlock. Social welfare and adoption institutions play important roles in cases of unwanted pregnancies to enable those involved to lead better lives.

For those in Malaysia contemplating abortion, and subject to the Penal Code, no one has the right to condemn you because any decision you make is solely between you and God, or between you and your conscience.

The right of autonomy is your right as a human being and it is you who will become the potential mother (or father), hence the judgment is for you to make.

But you should consider the notion of sanctity of life and think twice before making the decision. Such a decision may result in a big difference in your life, for an unwanted gift may turn out to be your most cherished visitor.


Allison Ong is a member of the Constitutional Law Committee (ConstiLC), Bar Council Malaysia. The views expressed are personal to the writer and may not necessarily represent the position of the Bar Council. Comments: letters@thesundaily.com