Is Abortion Legal in Malaysia? - Nadzarin Kuok Puthucheary & Tan ("NKPT")

Poon Wei Ying

Legal Associate
Kuala Lumpur

On 24.6.2022, the US Supreme Court in Dobbs v Jackson Women’s Health Organization 597 U.S. 2022 (Dobb) overruled its landmark decision in Roe v Wade 410 U.S. 113 (1973) (Roe). This decision generated a public outcry not only in the US but also in many other countries.

The significance of Roe was that it recognized a woman’s constitutional right to an abortion in the US, depending on which trimester of pregnancy the woman was in. Under Roe, a pregnant woman would be entitled to an abortion during the first 3 months of pregnancy, while there would be legal restrictions in the second and third trimester. However, by overruling Roe, Dobb revoked the constitutional right to an abortion and individual states in the US can now pass laws to regulate abortion procedure respectively.

Whilst it is a globally shared sentiment that American women today have less freedom than their mothers, one might also wonder “what does the law say about abortion in Malaysia?”

As a general rule, abortion is illegal and a criminal offence in Malaysia pursuant to S312 of the Penal Code, and this ban includes a woman who causes herself to miscarry. However, there are 2 exceptions to the rule i.e. an abortion may be legally performed if a registered medical practitioner is of the opinion, formed in good faith, (i) that the continuance of the pregnancy would pose a risk to a pregnant woman’s life or, (ii) the pregnancy may cause injury to the pregnant woman’s mental or physical health.

S312 of the Penal Code is silent on when can an abortion be performed. In PP v Wong Ah Kean [2010] 5 CLJ 599, the High Court sentenced the accused, a medical assistant, to 2 years imprisonment for performing an abortion on the victim who was more than 3 months pregnant and later passed away from excessive blood loss resulting from the abortion procedure.

In assessing whether there is “good faith”, the High Court would consider the circumstances of a case. In Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122, the High Court rejected the obstetrician and gynecologist’s argument that the abortion was performed in good faith in order to save the woman who was suffering from enlarged varicose veins which might cause pulmonary embolism. The High Court found that the accused had not given reasonable consideration and had not taken enough steps to further examine the woman before performing the abortion, and the finding of enlarged varicose veins was no other than a mere clinical examination.

All in all, abortion is a vexed issue all over the world with many advocating for a woman’s right to decide what happens to her body while others argue that innocent life of an unborn child should be protected. Quite obviously, it is going to be hard to reconcile both positions. But, at the very least, we can and must continue to debate about this issue as mature members of society that care about doing the right thing.

About the Author

Poon Wei Ying is an Associate of NKPT who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.