Blog

Despite nearly 65 years since Malaysia’s independence, sustained advocacy for sexual and reproductive health by human rights advocates, legal and safe abortion remains heavily guarded and restricted. Although penal code amendments in 1971 and 1989 permitted safe and legal abortion under certain circumstances, it’s disheartening that little progress since then has been made. Specifically, it’s demoralising that abortion in Malaysia today is illegal in cases of rape. 

For context, abortion is only legal and “permissible” in Malaysia only in cases where a registered medical practitioner in “good faith” determines the pregnant woman’s life or (mental/physical) health is at risk if she continues the pregnancy. Specifically, this law is especially ambiguous for it says that abortion is only illegal if the woman is “quick with her child”. But what is “quick with her child”, it doesn’t specify or explain the law at what stage of pregnancy can a medical practitioner perform a legal abortion. To highlight how absurd and incoherent morality is reflected in our laws, a survivor impregnated by a rapist cannot opt for safe abortion in Malaysia. In stark contrast, a rapist who forcefully marries the child survivor afterwards gets away scot-free for marital rape is not considered “rape” in Malaysia.

For brevity, in this piece, I explore Judith Thompson’s defence of abortion’s moral permissibility, with the main focus on cases of rape. Importantly, I am not implying that abortion is impermissible in ALL cases. Though most of the argument may extend to accidental pregnancy, there are two reasons for focusing on only rape cases. Firstly it’s for the sake of brevity as pro-life arguments are complex, and it would do it injustice to broadly generalise one argument for all circumstances. Secondly, I believe that this is an angle that many Malaysians can sympathise with due to the horrid nature of nonconsensual sex. 

Most opposition to abortion depends heavily on the premise that a fetus is a person from the moment it is conceived. Therefore, especially in Malaysia, where religion has a firm grasp over Malaysian laws and moral education, abortion is seen as a great EVIL on the grounds of rape.  The argument goes something like this: A fetus is a person, and everyone has a right to life, so the fetus has a right to life; a woman has a right to decide what happens in and to her body, but the fetus’s right to life outweighs the mothers right to autonomy. Therefore, abortion is morally impermissible because it takes away a person’s right to life. I am disinclined to agree that a fetus is a human being/person as it is a slippery-slope argument, as Thomspon nicely puts it, “A newly fertilised ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree.”

Nevertheless, for the sake of argument, I assume that it is. Even so, in cases of pregnancy due to rape, does the fetus have a right against the mother, thus making her obligated to maintain the pregnancy? In other words, the mother did not give the unborn person the right to use her body. Therefore does the baby have a right against the mother, and is abortion immoral? Imagine a situation where the room is stuffy, and you decide to open the window, but a burglar climbs in. It’s undoubtedly absurd to claim that the burglar now has been given the right to stay and use your house. Indeed, it’s ridiculous to say that you are partially responsible for the burglar breaking in because you voluntarily left the window with full knowledge that burglars exist. Regardless of whether it’s a burglar, it’s equally absurd if it was an innocent person who accidentally falls in. Analogous to the case of pregnancy in the case of rape, the innocent fetus was uninvited into the woman womb, let alone forced. Under what reasoning does it automatically entail that the fetus’ has a right to life against the mother’s autonomy?

I think why pro-life arguments have such a strong pull is because we tend to conflate what’s right and what’s kind. A significant distinction needs to be made between an individual’s moral obligation and kindness. It would be a nice thing for the mother to let the fetus (assumed to be a human being) use the mother’s womb, but the mother is not obligated to let it do so. Allow me to illustrate this using a revamped version of Thompson’s thought experiment. Imagine you’re terminally ill, and the only way to save your life is for Obama to touch your forehead for the next nine months. Though it would be nice for Obama to do so, it would be ridiculous to say that you have a right against Obama for him to be obligated to touch your forehead for nine months. Especially with the case of pregnancy due to rape, the mother never gave the fetus a right against her, for it’s not as if she invited it in.  

Unfortunately, as disheartening as it is sounds, it isn’t uncommon for some to say it is the survivor’s fault for getting raped for dressing or acting a certain way in Malaysia. Thus, the woman is partially responsible and thus gave the fetus a right against her because she could’ve just stayed at home at night, not walked in certain places, not dressed a certain way etc. Implying that this is a reasonable concession for women to make is equivalent to saying that we should forever live in a house with sealed windows and doors because not sealing them allows the possibility for a burglar or innocent individual to enter the house. A typical response is that “it’s just not the same”, that staying in a sealed house forever is a more severe concession and that not going out at night or dressing a certain way is minor. My rebuttal is that just because it is insignificant to you doesn’t imply that it is insignificant for everyone. That both cases should be treated equally regardless, for in both cases, your right is stripped away because of another person’s (the burglar’s/rapist’s) atrocious decision. 

Given this, it seems unreasonable why abortion in cases of pregnancy caused by rape remains illegal. What then does Malaysia have to justify denying survivors their right to access safe abortion? Why is this important in Malaysia? It’s important that the Malaysian laws should be made clearer and provide more access to safe abortion in Malaysia. For in effect it could reduce cases of child infanticide or baby dumping in Malaysia. Moreover, it could make abortion more discussable, allowing for our legal system to truly reflect our dynamic values. Just like the case of corporal punishment, where though corporal punishment was viewed undeniably morally permissible in 20th century Malaysia, this perspective is no longer a consensus today among younger generations.