Migrant workers and Abortion Violation of rights in Malaysia

by Dr SP Choong

Co-chair :Reproductive Advocacy Alliance Malaysia SC Member : Asia Safe Abortion Partnership.

UN Office of Human Rights - Global Seminar on Human Rights of Migrant Workers.

27 to 28 September 2015 ,

Shangrila Hotel, Bangkok.

28th September. International Day of Action for Access to Safe Abortion.

Save women's lives!

Points to Raise

• Workers Rights to Reproductive Health services

• Rights of Association - ‘Romantically’• Discriminatory application of Abortion law.• Inhuman treatment by Enforcement agents.• Authorities reluctance to address Abortion

Stigma despite permissive law.

On October 13th 2014.Nirmala became the first woman to be charged

for abortion in a registered clinic

Shocking to medical circles –• Because under penal code section

312 • Abortion became Legal in Malaysia

since 1989.• The Penal Code Amendment Act (1989) allows a

medical practitioner registered under the 1971 Medical Act* to terminate the pregnancy of a woman (i.e. to cause a miscarriage in legal language) under a wide range of conditions which are considered permissive by international standards (WHO).

*meaning all medical doctors practicing legally in this country.

Legal under what conditions?1. Doctors Opinion: if such medical practitioner is of the

opinion, formed in good faith.2. Assessment of Risks : the continuance of the

pregnancy would involve :• Risk to the life of the pregnant woman or • Risk of injury to the mental and physical health of the

pregnant woman • Risk being greater than if the pregnancy were

terminated Quote: Section 312, Penal Code in . MOH guide, MMA

Medical Ethics

BUT - How action was taken against Nirmala –

• Misapplication of penal code section 315 criminalizing “an act done to prevent a child from being born alive or to cause it to die after birth”

• In Malaysia, it has been only applied to terminations when the fetus is viable after 24 weeks gestation. (also UK practice)

• An attempt by DPP to apply this to early pregnancies allowed by section 312.

Immediate NGO efforts to alert Authorities

• Working behind the scenes • Arranged meeting with contacts in Medical

Associations, Ministry of Health, Attorney General’s office.

• Discussing misapplication of law.• No action taken to withdraw case.• Bureaucrats must not lose face?

Migrant workers in Malaysia.Overview

My clinic experience in providing reproductive health services for women migrant workers.

• In multinational as operators in electronics, garments etc

• In domestic work.• Coming from Indonesian, Vietnam, Nepal,

Cambodia and Myanmar.

Reproductive health problems.• Regulations for migrant workers include annual

health checks, regulated by Ministry of Health.• Infectious diseases a top priority but pregnancy is

an essential bar.• Contract terms include ‘not having romantic

relationships’• Pregnant workers either seek abortion or are

dismissed and sent home to continue pregnancy.

Figures and Causes - reality • Mostly young women are under 25yrs - thus

would be sexually active.• No provision for FP advice and services.• In an ‘open’ reproductive health clinic in

Penang – 30% are migrant workers seeking abortions (about 60 a month).

• Many prefer to keep their jobs than keep pregnancy.

• Problem of timing of annual medical checks w Pregnancy tests.

Nirmala’s story An unprecedented case

• Nirmala a young a Nepali migrant worker came to Penang tp work in Sony in late 2013.

• Paid agent 1000 USD to get work permitand job for 3 years- salary approx 300 USD/month.

• Got pregnant in October 2014, seeked and under went abortion by GP when 6 weeks pregnant.

• When procedure was completed an MOH inspector decided to make police report and arranged sensational media raid and arrest.

Demeaning process in between

• High profile arrest made in factory floor where she had to change into prison garb.

• Placed in Police lockup for 1 month awaiting interpreter

• Accompanied by Hindi interpreter (not Nepali) but judge allowed hearing.

• Distressed and confused she ‘pleaded’ guilty.• Sentence to 12 months jail.

NGOs take court action.• After 3 months in Jail, NGO reps visited jail.• Discovery, she didn’t understand the charge

read to her in court.• Also there was no legal counsel present.• Sony HR officer agreed with verdict.• Embassy informed but nothing done. • Appeal to High Court, declared mistrial,

Nirmala released on Bail.

First woman to be charged and convicted of illegal abortion.

Prolonged prosecution case• New trial proceeds.• Although now not guilty, Sony refuses to take her

back.• No letter of dismissal given.• Trial proceeds on bimonthly hearings. • All witnesses called except doctor who did

procedure.• Unable to prove abortipn took place - finally doctorr

was called.

Closure - Eight months later

Doctors testimony

• Defence used WHO definition of Health.• Not only free from sickness• Complete state of physician, mental, social

and psychological health.• Also linking mental health potential suicide• Section 315 allows abortion to save life of

mother even if applied to all pregnancies.

Problems of of Penal Code Abortion STIGMA

•General public, health providers, enforcement agencies the media and NGOs - low awareness of significance 1989 Penal Code Amendments.

•Amendment in parliament in 1989 - very low key.

•Media and politicians continue to misrepresent legal status.

•Medical and Nursing school side step abortion issue.

•MMC ethical guidelines published in 1988 before the 1989 amendment has not been updated since.

Problems of Migrant Workers regulations

• ‘Romantic relationships’ can be included in contract.• Refusal of a basic right of association.• Reproductive health not addressed.• Abortion law not recognized.• Premature expulsion of migrant workers benefit the

agencies?• Inhuman treatment of workers by authorities.

A happy ending?