Migrant workers and Abortion Violation of rights in Malaysia

1. 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.

2. 28th September. International Day of Action for Access to Safe Abortion. Save women's lives!

3. 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.

4. On October 13th 2014.Nirmala became the first woman to be charged for abortion in a registered clinic

5. 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.

6. 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 thelife of the pregnant woman or • Risk of injury to the mental and physical healthof the pregnant woman • Risk being greater than if the pregnancy were terminated Quote: Section 312, Penal Code in . MOH guide, MMA Medical Ethics

7. 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.

8. 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?

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. First woman to be charged and convicted of illegal abortion.

16. 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.

17. Closure - Eight months later

18. 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.

19. 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.

20. 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.

21. A happy ending?