Abortion in the context of Malaysia: The right to life vs the right to autonomy

By: Eisern Tan Yuan Ho (陈谚柯) , David Leu , Chan Choon Wooi , Sofea Rozhan , (Adele) Soh Chien Yi , Muhammad Izzuddin , John Weng Hoe , Hsu Ling C. , & Tan Jie Wei

Question examined

Abortion is prohibited in Malaysia. However, the country’s penal code provides exemptions for such a practice.

Discuss whether the current law protect women’s right to equality and their best interest. Consider the recent development in the US’ landmark case on abortion in your discussion.

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I. Introduction

The issue of the legality of abortion is perhaps one of the most perplexing ethical dilemmas in medical law today. Generally, abortion can be defined as the removal of an unborn child from the mother’s body before it is capable of independent survival outside the womb.[1]

The reason for the controversy surrounding this issue is largely due to the complex ethical considerations that are involved. Abortion generally involves a clash of deeply-held beliefs, values and rights between groups of individuals; it involves, for example, the pitting of the mother’s right and liberty over her own body against the right to life of the unborn; it involves the struggle between liberal sentiments against the deeply-held values of society over the sanctity of human life, et cetera.

However, it is imprudent and reckless for anyone to simply ignore the various issues and challenges that inevitably arise on either side of the spectrum — whether or not abortion is legalised. Accordingly, this essay aims to analyse all these issues and to provide a balanced approach to the issue of abortion in Malaysia.

II. The ethics of abortion

As mentioned above, abortion involves a slew of ethical dilemmas and considerations, some of which are outlined briefly below:

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(a) Ethical considerations

(i) When does life begin?

The question as to when life — or, more accurately, personhood — begins is integral to any discussion on the ethics of abortion. This is important as the ethical permissibility of an abortion often depends on whether the unborn child concerned could be considered as a human life at the time where said abortion is carried out; the general understanding being that it is wrong to terminate the foetus only if it constitutes a “human life”, as opposed to a mere clump of cells. While there is no unanimous answer to the issue, among the prevailing theories as to when life and personhood begins include:

(a)? Conception/fertilisation

(b)? Embryonic implantation[2]

(c)? The emergence of the primitive streak[3]

(d)? Quickening[4]

(e)? Viability [5]

(f)??? Sentience[6]

(g)? Birth

(h)? Gradualist view (the degree of personhood increases over time)[7]

(ii) Bioethical standings: Abortion and principlism

Relevant to our discussion also are the four ethical principles that underlie medical law: autonomy, beneficence, non-maleficence, and justice. For our purposes only autonomy and justice are relevant.?

Generally, the autonomy principle provides that all patients have the right to make decisions regarding their own bodies. Thus, the autonomy principle would favour giving pregnant women the free choice on whether to continue with a pregnancy or not. Meanwhile, the justice principle requires that all patients be treated equally and fairly. In this regard, an anti-abortion/pro-life stance would arguably deny women equal access to reproductive healthcare in relation to men, but a pro-abortion/pro-choice stance would conversely deny unborn children an equal chance to life.

(b) Ethical Issues: Mother vs Child

The clash between the rights of mother against child produces various ethical dilemmas. We will examine the issues affecting both mother and child in turn below:

(i) The mother’s perspective

While prenatal life is valuable, it is undeniable that the outlawing and stigmatisation of abortion in countries like Malaysia have led to various negative effects on the wellbeing of pregnant women in general. This is outlined below:?

Firstly, an abortion ban is detrimental to the mental health of women.[8] We should bear in mind that any restrictions on abortion is tantamount to forcing women to carry on with an unwanted pregnancy against their will, which has been recognized internationally as a form of cruel and inhumane treatment.[9] Given the life-changing nature of childbirth and motherhood, it is no wonder that unprepared and unwilling mothers often face mental health issues like depression or anxiety disorders.[10] Indeed, restrictions on access to reproductive care is directly linked to increased suicide rates among women.[11] This is exacerbated if the pregnant woman concerned is a teenager due to their inability to cope with the needs of motherhood.[12] Similarly, by requiring rape victims to carry and raise the children of their rapists (who would be likely behind bars) as single mothers would only exacerbate the hardship, stress and trauma already caused to them.[13]

Secondly, the criminalization of abortion also encourages unsafe abortions. This is unsurprising as, being denied an alternative way out, some women would naturally be driven by desperation to seek out illicit “underground” abortion clinics, or other similarly dangerous methods such as “black market” abortion pills,[14] both of which poses serious health risks for them.[15] To aggravate this, these victims of unsafe abortions are also barred from seeking legal recourse against the negligence of these illicit abortion “specialists”, since they would then be directly implicating themselves in the crime of abortion.

Even if abortion was ultimately avoided, another potential issue would be the dumping of unwanted children. In Malaysia, baby dumping is not a novel phenomenon. In fact, between 2010 and 2019, there were 1,010 cases of baby dumping reported in the country.[16] Similarly, unwanted babies who are kept around are also more likely to be exposed to neglect and abuse by their parents.? Indeed, increased incidents of child abuse and neglect[17] have been found to correlate with an increased number of unwanted pregnancies.[18]

Finally, we cannot ignore the socio-economic impact that forced pregnancies can have on women. In this regard, we must remember that forcing pregnancies on unprepared mothers is strongly linked to increased levels of poverty[19] and higher drop-out rates from schools,[20] especially since the mother would have to devote most of her time and effort in caring for the newborn.

(ii) The child’s perspective

While the wellbeing of the mother is important, we must balance this against the interests and rights of an unborn child who, whether we like it or not, also constitute potential human life.

One of the main concerns in allowing abortion is that doing so would devalue the sanctity of human life.[21] Indeed, valid questions have been raised as to whether it is appropriate to allow the liberty of the mother per se to outweigh the very life and future of an innocent unborn child. This is especially so since, at least for cases involving consensual intercourse, the mother has arguably already exercised her liberty in voluntarily taking on the risk of having a child, and could not now ethically justify the termination of her child conceived due to her own folly. Additionally, it has been questioned whether it could ever be morally permissible to put the life of one human being (the foetus) at the complete whim and mercy of another (the mother), given that the foetus may constitute an independent human life altogether with its own rights.[22] We should also bear in mind that the unborn are voiceless and are unable to protect themselves, and so there is arguably a need for the State to step in and protect their interests.

Ethical dilemmas are also raised as to whether allowing abortion would lead to the proliferation of the practice of eugenics. Briefly, eugenics refers to the belief in improving the genetic quality of the human population through selective breeding and by controlling hereditary factors.[23] This happens where a mother decides to abort a child for having either undesirable traits or congenital defects. Sometimes, abortion is also done on the basis of the race or gender of the child.[24] Indeed, studies have shown that aborted foetuses tend to be disproportionately racial minorities, female, and those with disabilities.[25] Therefore, legitimate ethical concerns are raised as to the potential abuse of an unbridled right to abortion by irresponsible mothers to create “perfect children”, in effect allowing them to discriminate against the unborn.

III. Comprehensive legal analysis

(a) Malaysia’s “abortion offences”

Generally, “causing miscarriage or the death of a quick unborn child” is considered as a criminal offence under the Malaysian Penal Code.[26] While not defined by the Code itself, in their ordinary meaning, “miscarriage” refers to the termination of the pregnancy at its early stages before the foetus becomes viable (able to live outside the womb), while “causing the death of a quick unborn child” refers to the termination of a viable foetus at a later stage of the pregnancy.[27] For our purposes, we will refer to both as either “miscarriage” or “abortion”.

The most relevant provision of the Code in relation to abortion would be s312 since it provides for the general offence of voluntarily causing miscarriage. The 3 basic elements of the offence are (a) the act of causing miscarriage (actus reus), (b) that such act was voluntarily done (mens rea),[28] and that (c) miscarriage was caused thereby (causation). It is worthy to note here that the Explanation to s312 makes it clear that the offence was intended to also cover cases where the abortion was voluntarily sought by a pregnant woman. Therefore, generally, abortion is a criminal offence in Malaysia.

However, this is subject to the Exception contained in s312 (hereafter the “bona fides exception”), which exempts liability if the accused could prove that a registered medical practitioner under the Medical Act 1971 was of the opinion, formed in good faith (bona fides), that the continuance of the pregnancy would pose a greater risk to the life, or would involve greater injury to the mental or physical health, of the pregnant woman than if the pregnancy was terminated. Regarding this, a few points should be noted.

Firstly, the exception applies so long as there is a bona fide opinion, and there is no need to prove that the woman was in fact at greater risk of losing her life or of suffering greater injury from continuing the pregnancy. As noted below, however, this opinion should only be formed after due caution and examination has been undertaken.[29]

Secondly, the exception covers situations to avoid greater injury not only to physical health, but also mental health. While the Code is silent as to what constitutes an injury to “mental health”, it is submitted that mere distress or normal mood-swings would not suffice, rather there should be some recognized psychiatric illness involved.? Additionally, the risk of the psychiatric illness should be due to the pregnancy, and not some other unrelated factor.

Thirdly, in relation to the bona fides requirement, the Malaysian courts have held that abortion should only be attempted after an adequate assessment was made on the pregnant woman’s condition and, even then, only as a last resort to save life or prevent greater injury.[30] Indeed, a person may be guilty of attempting to cause miscarriage even if the woman was in fact not pregnant.[31]

In addition to the above, the Code also provides for more specific versions of the offence in s312 together with heavier penalties. However, we note at the outset that these provisions are somewhat outdated since they were not amended together with s312 in 1989 owing to legislative oversight.[32]

?One such provision is s315 which provides for inter alia the situation where an act is done intentionally to prevent a child from being born alive. Although s315 and s312 can overlap, the two are distinct from one another. Having a heavier penalty, the mens rea required by s315 is the much higher threshold of intention as compared to s312’s “voluntariness”. Additionally, the exception in s315 is also worded differently from s312 in that it covers situations where the act was performed by any person in good faith only for saving the life of the mother, but not otherwise.

Apart from the above, there is also s314 (where death of the woman is caused by an act intending to cause miscarriage, whether with[33] or without her consent) and s316 (where the death of a quick unborn child was caused by an act which would have otherwise amounted to culpable homicide). However, neither of these sections contain any exceptions similar to that found in s312.

We would finally also note that the above restrictions do not contravene the right to personal liberty guaranteed by art 5(1) of the Federal Constitution, since the said right is subject to the qualifying words “save in accordance with the law”.[34]

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(b) Foreign positions

Having laid out Malaysia’s position on the matter, it would not be useful to examine the positions of some selected jurisdictions as well.

(i) United States of America

The recognition of a constitutional right to abortion in the US centres primarily around the interpretation given to s1 of the Fourteenth Amendment of the US Constitution (“the Clause”) which inter alia protects the liberty of the person. At this juncture, it is also worthy to note that the right to liberty under the Clause has also been judicially interpreted to impliedly include the right to privacy as well.[35]

With that being said, the first landmark case to expound on the issue of abortion rights in the US was the Supreme Court (“USSC”) case of Roe v Wade,[36] which held that a constitutional right to abortion existed under the Clause as part of the already recognized right to privacy. However, the USSC also held that such a right to abortion was necessarily a limited one, given the State’s genuine interest in safeguarding the health of the mother and in protecting prenatal life. Thus, in balancing the rights of women to abortion and the interests of the State, the Court adopted the “trimester” framework set out as follows:

(a)?? During the first trimester (1 – 3 months pregnancy): The woman has an absolute right to abortion, and the interests of the State cannot override this.

(b)?? During the second trimester (4 – 6 months): While the woman still retains the right to abortion, the State can regulate abortion procedures to preserve and protect the health of the mother.

(c)?? During the third trimester (7 – 9 months): At this stage the foetus is already viable, and is presumed to be capable of having a meaningful life on its own outside the womb. Thus, the State can ban abortion to protect its life except in situations where the abortion was necessary to preserve the life or health of the mother.

Subsequently, however, the USSC in Planned Parenthood v Casey[37] decided to depart from Roe on a few key aspects, which ultimately resulted in the adoption of a more liberal stance. Firstly, in Casey, the Court was of the opinion that the right to abortion was protected under the right to liberty itself, and that there was no need to rely on the right to privacy. This is because the USSC found that the right to decide on abortion, being a deeply personal decision which fundamentally affects a person’s life, is required under the concept of liberty to be protected against unwarranted governmental interference.

Secondly, the Court was of the opinion that the trimester framework in Roe was unsuitable and fails to fully take into account the interests of both pregnant women and the State. Instead, the undue burden standard was adopted, whereby the State is only allowed to regulate abortions so long as it does not place an undue burden on or a substantial obstacle to the woman’s liberty.

However, affirming the viability analysis in Roe, the Court held that the undue burden standard applies only to laws regulating abortion before viability of the foetus. Hence, after viability, the States are able to freely regulate or even outright ban abortion, provided that exceptions be made in cases where abortion is necessary to avoid the death of the mother or to avoid serious risks of substantial and irreversible bodily impairment.

Despite the liberal developments above, the Supreme Court took a sharp reversal in Dobbs v Jackson,[38] which effectively overruled both Roe and Casey. Regarding these two cases, the Supreme Court noted that both have failed to consider that the Clause only protects particular rights “rooted in the nation’s history and tradition” and which are already implicit in the concept of “ordered liberty”,[39] which would ultimately not cover the right to abortion. In particular, the Court noted that abortion was criminalised throughout most of the US’s history, and was only accorded recognition in the late 20th century. In any case, it was also held that the Constitution did not recognize a broad and general “right to autonomy and to define one’s existence” as the recognition of such a right would also extend constitutional protection to other immoral activities such as illicit drug use, prostitution and so on. Therefore, given the lack of legal basis for their respective approaches, the Courts in both Roe and Wade had acted per incuriam and in doing so had unwittingly trespassed on a moral and social question (abortion) which the Constitution had left to the legislature and the people to determine.

Instead, the Supreme Court in Dobbs adopted the rational basis test, whereby the regulation of abortion would be allowed so long as there States have legitimate reasons to do so. In other words, laws regulating abortion are given a strong presumption of validity so long as there is a rational basis for their enactment, such as the protection of legitimate State interests on the preservation of prenatal life, the protection of maternal health and safety, the prevention of discrimination amongst the unborn, et cetera.

(ii) India

In India, abortion is currently regulated under both the Indian Penal Code (“IPC”)[40] and the Medical Termination of Pregnancy Act 1971 (“MTPA”).[41] While abortion is generally prohibited under the IPC (in pari materia with our Penal Code), abortions nevertheless are allowed under the circumstances listed in s3 of the MPTA which generally recognizes a right to abortion within the first 12 weeks of the pregnancy.[42]

Most notable, however, is the existence of certain specific exceptions under s3. Firstly, under Explanation 1 to s3(2), there is a presumption that any mental anguish caused by rape would constitute a sufficiently grave mental injury to justify the termination of the pregnancy; thereby providing an exception to cater for the plight of rape victims.[43] Secondly, Explanation 2 also provides for a similar presumption and exception in relation to cases where the pregnancy was caused by the failure of contraceptive methods.[44]

Apart from this, the MPTA also allows abortion in cases where the child is seriously handicapped (whether mentally or physically).[45] Although this may appear to encourage eugenics, the Indian legislature has nevertheless been careful to only allow such abortions if the handicapped child is under 20 weeks old and even then only if the bona fide opinion of at least two doctors has been obtained,[46] thereby safeguarding against unnecessary and excessive abortions of disabled children. Additionally, to combat eugenic practices, India has also banned sex-selective abortions (abortions based on the gender of the foetus) under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994.[47]

Despite this, what is more surprising is that, unlike Malaysia, s3(3) of the MTPA also allows medical practitioners to take into account the pregnant woman’s “actual or reasonably foreseeable environment” in considering whether the pregnancy would likely cause physical or mental injury to her. Therefore, Indian doctors are empowered under s3(3) to take into account the broader socio-economic welfare of women in determining on a case-by-case basis whether an abortion request should be granted.?

(iii) United Kingdom

In the UK, abortion is also generally criminalised under the Offences against the Person Act 1861.[48] However, since the passing of the Abortion Act 1967 (“AA1967”),[49] numerous exceptions have been provided to these offences, some of which are mirrored in the Indian MTPA discussed above.?

Unlike India, however, the UK has no general period under which abortion is freely allowed. Rather the AA1967 requires in all cases that the bona fide opinion of at least two medical practitioners be obtained for the abortion.[50] However, similar to India, the AA1967 allows medical practitioners to take into account the “actual or reasonably foreseeable environment” of the woman concerned, and allows abortion in cases of seriously handicapped children.[51] In relation to the latter, however, it has been held that there is no duty imposed on a doctor to terminate the pregnancy of a disabled child.[52]

Despite these positive aspects, one disadvantage of English law would be its failure to address eugenic and discriminatory practices of abortion. Regarding this, although s84 of the Serious Crimes Act 2015 has required the Secretary of State to conduct assessments and formulate plans to curb sex-selective abortion practices,[53] there are currently no bans or actions being taken on the subject yet.

What is most interesting about the UK’s position, however, can be found in s1(1)(a) of the AA1967, which allows medical practitioners to take into account not only the physical or mental health of the woman, but also those of her existing children, if the pregnancy has not exceeded its twenty-fourth week.[54] Additionally, unlike Malaysia, UK courts have allowed greater discretion to medical practitioners in determining whether abortion should be allowed, holding that a judge should generally not interfere with such medical discretion unless the discretion is clearly exercised in bad faith.[55]?

(c) Adequacy of Malaysian law

Having set out the above, the question now arises as to whether Malaysian law is adequately equipped to protect (a) the right of women to equality and (b) their best interests???

Regarding (a), we would first like to address the Malaysian constitutional position on equality. Generally, in Malaysia, the constitutional right to equality is enshrined in art 8(1) of the FC.[56] More specifically, art 8(2) expressly bans the discrimination of Malaysian citizens on, inter alia, the basis of gender in any law. Thus, prima facie, any laws discriminatory against Malaysian women would be unconstitutional and void.[57] However, we submit that the abortion offences under the Penal Code do not constitute a “discrimination” as envisaged under art 8. This is because the said offences are not gender-specific: they apply to any person (whether man or woman) who causes the miscarriage, including the mother, a doctor, a nurse, et cetera. Hence, since the offence does not expressly discriminate between man or woman, there is no violation of the constitutional right to equality under art 8.?

Despite this, we are still of the opinion that art 8, as it is currently worded, fails to take into account the broader right to equality of women. This is because, while the abortion offences are not gender-specific, art 8 still fails to take into account the broader impact that such offences may disproportionately have on the liberty and interests of women as opposed to men. Hence, we would argue that Malaysian law fails to adequately protect the right to equality of women generally, although art 8 is not contravened.

For instance, the abortion offences deny women the right to equal access to healthcare facilities and scientific progress in relation to reproductive health. This is because, while men are able to access all reproductive health technologies and treatments without restriction or fear of criminal repercussions, the same cannot be said of women who are barred from all forms of treatment that may potentially cause abortion (even as a side effect), unless the bona fides exception is fulfilled. Similarly, the abortion offences also violate the right to equal bodily autonomy. This is because abortion offences naturally place greater restrictions on women regarding what they may do with their bodies when compared with men.[58]

Additionally, even though the abortion offences were enacted under the rational basis of protecting prenatal life as per Dobbs,[59] nevertheless we submit that the law still imposes an undue burden on the liberty of women as per Casey.[60] This is because, unlike the UK or India, Malaysian law currently only provides for very limited situations where abortion may be lawfully obtained and fails to take into account the broader interest of women. In particular, the abortion offences fail to take into account certain cases where it would be particularly unjust to force women to go through unwanted pregnancies, such as instances involving rape victims, teenage mothers, and the like. Thus, Malaysian law disproportionately and unduly hampers the liberty of women to obtain abortions, while men remain largely unaffected by these issues.

In relation to (b), we are of the opinion that Malaysian law also fails to have regard to the best interests of women. Particularly, we would note that the law fails to address the various detrimental effects that the prohibition ban would have on women as highlighted. Particularly, as previously asserted, the bona fide exception under s312[61] does not allow medical practitioners to consider the broader welfare, socio-economic difficulties or environment faced by abortion-seeking women, while also failing to provide for exceptional cases of hardship.

Additionally, we note also that Malaysia law similarly fails to adequately address the unintended social harms that would result from such a strict stance against abortion, including the issues of unsafe abortions,[62] baby dumping,[63] and child neglect or abuse.[64] While Malaysia does have criminal laws relating to each of these issues, we submit that this nevertheless amounts to treating the symptoms of the problem without addressing its underlying cause. Take unsafe abortions as an example: criminalising abortion does not reduce unsafe abortions, but increases it.[65] Similarly, criminalising baby dumping does not facilitate the reunification of parent and child, but hinders it.[66] Indeed, instead of offering viable solutions or assistance, what Malaysian law currently does is to chastise and criminalise desperate women who are unfortunately involved in these social issues.

IV. Recommendations for change/improvement

From the outset, contrary to the rhetoric of some Western activists,[67] we would first like to rule out any possibility of conferring an absolute and unbridled right to abortion in Malaysia. In doing so, we note that no country has ever adopted such a radical stance on abortion before (not even the US or the UK), and we contend that such a view fails to take into account Malaysian values, the wider interests of society in protecting prenatal life, and the different religious and cultural views of Malaysians on the matter. Additionally, such an unrestricted right would also be immensely impractical to implement, given the likely public outrage which would be caused by any attempt at legislative amendment and the dangerous potential for such a right to be abused for eugenic practices. Rather, we recommend a “middle way” as outlined below:

We had noted earlier on that the 1998 amendments introducing the bona fide exception to s312 of the Penal Code had failed to incorporate a similar exception in relation to the other abortion offences found in the Code. Hence, above all, our first recommendation would be to extend the bona fides exception (as worded in s312) to all abortion offences mentioned in the Penal Code, so that the law is unified and made clearer.

Secondly, we recommend that the bona fides exception be broadened so as to allow and require medical practitioners to take into account the long-term wellbeing and interests of the mother in deciding on whether abortion should be allowed. Particularly, we note that the legislative provisions in the UK and India allowing the consideration of a woman’s “actual and reasonably foreseeable environment” should be incorporated into Malaysian jurisprudence. Similarly, medical practitioners should also be allowed to consider the interests of the pregnant woman’s existing children and others immediately affected by the abortion as well, with more weight of course being given to the views of the woman herself (given that the pregnancy inevitably affects her interests and liberty more than others). In this way, we believe that Malaysian law would be able to strike a better balance between the interests of the mother and her unborn child on a case-by-case basis, allowing children to be born into families who are better prepared and able to adequately care for them.

Thirdly, we would similarly recommend that an express provision be included to exempt doctors who have authorised abortions from criminal liability, unless they can be clearly shown to have acted in bad faith. Thus, there should be no need for doctors to strictly prove that the abortion was a necessary last resort, so long as there are no mala fides. This is different from the previous Malaysian position which required doctors to prove they have acted in good faith by undertaking certain precautions before recommending abortion. We believe such a shift in the law would allow doctors to be better able to focus on the needs and wellbeing of the pregnant woman and her unborn child in coming to their decisions, without having to excessively worry about potential criminal liability.

Fourthly, we would also recommend for Malaysia to adopt certain specific exceptions catered to deal with exceptional cases where undue hardship may be caused via a forced pregnancy. More specifically, we would recommend that the rape victim exception from UK and Indian law be adopted. We would also add that exceptions for pregnant teenagers, for those living in abject poverty, and for cases of contraceptive failure where the mother has more than 5 living children, may be included as well. However, we would discourage against allowing the abortion of handicapped children, unless it may be proven that they are permanently unable to care for themselves or to have any meaningful existence outside the womb. Similarly, we would recommend that sex-selective, race-selective and otherwise discriminatory abortions be criminalised to prevent the abuse of abortion procedures for unethical discrimination.

Finally, we would advocate for the law to also require mandatory counselling sessions for women who are unable to obtain an abortion under the above provisions. Additionally, regular assistance and checkups should also be provided by a strengthened Social Welfare Department to ensure their long-term welfare. Via this, we hope to be able better reduce instances of baby-dumping, unsafe abortions and child abuse or neglect. Additionally, legislatively mandated State-funded financial assistance may also be considered for these unwilling mothers.

V. Conclusion

In conclusion, although abortion laws inevitably involve imposing some restrictions on the liberty of women, we believe that the adoption of the measures above would lead to a more considerate legislative regime aimed primarily to assist women going through unwanted pregnancies, as opposed to one that focuses on criminalising abortion per se, which would in turn be better able to cater to the welfare of Malaysian mothers as a whole.

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[1] Termination of Pregnancy Guidelines (Malaysia) s 2.

[2] Swarthmore. When does personhood begin? (2018, September 26). Retrieved from?https://www.swarthmore.edu/news-events/when-does-personhood-begin#:~:text=Some%20scientists%20will%20say%20it's,at%20best%2C%20only%20one%20adult

[3] See footnote 3 above.

[4] Arizona State University. Roman Catholic Church Quickening. Embryo Project Encyclopedia. (2007, November 11). Retrieved from?https://embryo.asu.edu/pages/roman-catholic-church-quickening.

[5] Life First. Life begins at viability. (2023, October 6). Retrieved from?https://lifefirst.org/life-begins-at-viability/

[6] Perry, D. L. Ethics and personhood. Some Issues in Contemporary Neurological Science and Technology. (2011, December 11). Retrieved from?https://www.scu.edu/ethics/focus-areas/bioethics/resources/ethics-and-personhood/#:~:text=According%20to%20philosopher%20Mary%20Anne,relatively%20complex%20problems)%3B%203

[7] Barry, R. (1979). Self-Consciousness and Personhood. The Linacre Quarterly, 46(2), 141-148.

[8] American Psychological Association. Restricting access to abortion likely to lead to mental health harms, APA asserts. (2022, May 3). Retrieved from https://www.apa.org/news/press/releases/2022/05/restricting-abortion-mental-health-harms

[9] Shah, P.?& Radhakrishnan, A. It’s Time to Call Abortion Bans What They Are—Torture and Cruelty. (2023, June 9). Retrieved from https://www.thenation.com/article/society/abortion-bans-torture-cruelty/

[10] Landman, K. Living in an abortion ban state is bad for mental health. (2024, February 20). Retrieved from https://www.vox.com/24071802/abortion-roe-overturn-trigger-ban-states-mental-health

[11] Zandberg, J., Waller, R., Visoki, E., & Barzilay, R. (2022). Association Between State-Level Access to Reproductive Care and Suicide Rates Among Women of Reproductive Age in the United States. JAMA Psychiatry, 80(2). Retrieved from https://doi.org/10.1001/jamapsychiatry.2022.4394

[12] Hennepin Healthcare. Teen pregnancy and mental health. (2023, March 29). Retrieved from https://www.hennepinhealthcare.org/blog/teen-pregnancy-and-mental-health/

[13] Ng, J. C. The double tragedy of rape victims. (2023, June 21). Retrieved from https://thesun.my/home_news/the-double-tragedy-of-rape-victims-LD11129893

[14] Reproductive Rights Advocacy Alliance Malaysia. Abortion. Retrieved from https://www.rraam.org/abortion/

[15] Nortajuddin, A. ASEAN Underground Abortion. (2020, July 6). Retrieved from https://theaseanpost.com/article/asean-underground-abortion

[16] Farhana, S. The rise of baby dumping cases in Malaysia. (2020, July 23). Retrieved from https://www.astroawani.com/berita-malaysia/rise-baby-dumping-cases-malaysia-252476

[17] Hassan, H. 2,040 Child Abuse Cases Reported In First Four Months Of 2021, Says Rina Harun. (2021, July 8). Retrieved from https://www.therakyatpost.com/news/malaysia/2021/07/08/2040-child-abuse-cases-reported-in-first-four-months-of-2021-says-rina-harun/;

Harun, H. H. JKM handles over 5,000 cases of child abuse and neglect - Nancy Shukri. (2023, November 29). Retrieved from https://api.nst.com.my/news/nation/2023/11/984339/jkm-handles-over-5000-cases-child-abuse-and-neglect-nancy-shukri;

Morden, J. Report: More than 1,000 cases of physical child abuse in Malaysia last year, Parliament told. (2023, March 28). Retrieved from https://www.malaymail.com/news/malaysia/2023/03/28/report-more-than-1000-cases-of-physical-child-abuse-in-malaysia-last-year-parliament-told/61850

[18] Bitler, M. & Zavodny, M. (2002). Child Abuse and Abortion Availability. American Economic Review, 92(2). 363-367. Retrieved from 10.1257/000282802320191624

[19] Cohen, R. Denial of abortion leads to economic hardship for low-income women. (2018, January 19). Retrieved from https://www.reuters.com/article/idUSKBN1F731Y/

[20] Yazdkhasti, M., Pourreza, A., Pirak, A., & Abdi, F. (2015). Unintended Pregnancy and Its Adverse Social and Economic Consequences on Health System: A Narrative Review Article.?Iranian journal of public health,?44(1), 12–21. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4449999/#:~:text=Teenage%20(15%2D19%20yr),of%20the%20individual%20(17)

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[22] Wong, F. M. Rights of the Unborn. (2009, October 15). Retrieved from https://www.malaysianbar.org.my/article/about-us/committees/national-young-lawyers-and-pupils/rights-of-the-unborn

[23] Garver, K. L., & Garver, B. (1991). Eugenics: past, present, and the future. American Journal of Human Genetics, 49(5), 1109.

[24] Shaw, A. (2016). How Race-Selective and Sex-Selective Bans on Abortion Expose the Color-Coded Dimensions of the Right to Abortion and Deficiencies in Constitutional Protections for Women of Color. NYU Review of Law & Social Change, 40, 545–579. Retrieved from https://socialchangenyu.com/review/volume/volume-40/

[25] Paulsen, M. S. (2020). Abortion as an Instrument of Eugenics. Harvard Law Review, 134, 415-431.

[26] Penal Code (Act A327) (Malaysia) s 312–316.

[27] Ranchhoddas, R., Thakore, K. D., Kannan, K., & Prakash, A. (2019).?Ratanlal & Dhirajlal the Indian Penal Code. Haryana, India: LexisNexis.

[28] Penal Code (Act A327) (Malaysia) s 39.

[29] Public Prosecutor v Dr Nadason Kangalingam [1985] 1 MLJ 122.

[30] See footnote 29 above.

[31] Munah binti Ali v Public Prosecutor [1958] 1 MLJ 159.

[32] Penal Code (Amendment) Act 1989 (Act A727) (Malaysia).

[33] Mary Shim v Public Prosecutor [1962] 1 MLJ 132.

[34] Federal Constitution (Malaysia) art 5(1).

[35] Roe v Wade 410 U.S. 113 (1973).

[36] See footnote 35 above.

[37] Planned Parenthood of Southeastern Pennsylvania v Casey?505 U.S. 833 (1991).

[38] Dobbs v Jackson Women’s Health Organization 597 U.S. 215 (2022).

[39] Merriam-Webster. Ordered Liberty. Retrieved from https://www.merriam-webster.com/legal/ordered%20liberty#:~:text=%3A%20freedom%20limited%20by%20the%20need,clause%20of%20the%20Fourteenth%20Amendment

[40] Penal Code (India) (Act 45) s 312–316.

[41] The Medical Termination of Pregnancy Act 1971 (Act 34) (India).

[42] See footnote 42 above, s 3.

[43] See footnote 42 above, s 3(2) Explanation I.

[44] See footnote 42 above, s 3(2) Explanation II.

[45] See footnote 42 above, s3(2)(b)(ii).

[46] See footnote 42 above, s3(2)(b).

[47] Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (Act 57) (India).

[48] Offences against the Persons Act 1861 (c.100) (United Kingdom) s 58 & s 59.

[49] Abortion Act 1967 (c. 87) (United Kingdom).

[50] See footnote 49 above, s 1(1).

[51] See footnote 49 above, s1(1)(d)

[52] McKay and Another v Essex Area Health Authority and Another [1982] Q.B. 1166.

[53] Serious Crimes Act 2015 (c.9) (United Kingdom) s 84.

[54] See footnote 49 above, s 1(1)(a).

[55] Paton v BPAS [1978] 2 All ER 992, 996.

[56] Federal Constitution (Malaysia) art 8(1).

[57] Federal Constitution (Malaysia) art 4(1); Ah Thian v Government of Malaysia [1979] 1 MLRA 410.

[58] Office of the United Nations High Commissioner for Human Rights. (2017, October). Women's Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends. Retrieved from https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf

[59] See footnote 38 above.

[60] See above 37 above.

[61] See footnote 26 above.

[62] Criminalised under s 312–316, Penal Code (Act A327) (Malaysia).

[63] Criminalised under s 317 & 318, Penal Code (Act A327) (Malaysia), as well as s 31, Child Act 2001 (Act 611) (Malaysia).

[64] Criminalised under s 31, Child Act 2001 (Act 611) (Malaysia).

[65] Ahmed, Z. Abortion rates don't drop when the procedure is outlawed. But it does make it more dangerous. (2020, July 29). Retrieved from https://www.nbcnews.com/think/opinion/abortion-rates-don-t-drop-when-procedure-outlawed-it-does-ncna1235174

[66] Nair, V. Rethink effects of criminalising child abandonment, say assemblymen. (2024, March 7). Retrieved from https://www.thestar.com.my/metro/metro-news/2024/03/07/rethink-effects-of-criminalising-child-abandonment-say-assemblymen

[67] Associated Press. 'My Body, My Choice': Abortion Rights Backers Rally Across US. (2022, May 14). Retrieved from https://www.voanews.com/a/us-abortion-rights-activists-start-summer-of-rage-with-saturday-protests/6571323.html