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Biomedical Ethics and the Law. LEE SWEE SENG LLB, LLM, MBA Advocate & Solicitor Notary Public, Trademark, Patent Agent Certified Mediator sweeseng@tm.net.my www.leesweeseng.com. The Law Relating to Abortion. The Law Relating to Abortion. Section 312 Penal Code

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Biomedical Ethics and the Law


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    1. Biomedical Ethics and the Law LEE SWEE SENG LLB, LLM, MBA Advocate & SolicitorNotary Public, Trademark, Patent Agent Certified Mediator sweeseng@tm.net.my www.leesweeseng.com

    2. The Law Relating to Abortion

    3. The Law Relating to Abortion • Section 312Penal Code ‘Whoever voluntarily causes a woman with child to miscarry shall be punished with: a) imprisonment up to 3 years or b) fine or c) both;

    4. The Law Relating to Abortion • Section 312Penal Code (contd) and if the woman is quick with child, shall be punished with a) imprisonment up to 7 years, and b) fine

    5. The Law Relating to Abortion • Definition of ‘Woman Quick with Child’ Bouvier’s Law Dictionary, Revised 6th Edition (1856) The mother is said to be ‘quick with child’ when the motion of the foetus, called quickening, is felt by the mother.

    6. The Law Relating to Abortion • Definition of ‘Woman Quick with Child’ Bouvier’s Law Dictionary, Revised 6th Edition (1856) Quickening happens at different periods of pregnancy in different women. Usually about the 15th or 16th week after conception.

    7. The Law Relating to Abortion • Explanation to S312: A woman who causes herself to miscarry is within the ambit of S312

    8. The Law Relating to Abortion • Exception to S312: S 312 does not apply to • a registered medical practitioner who terminates a woman’s pregnancy if he: a) forms an opinion in good faith, that the continuance of pregnancy would

    9. The Law Relating to Abortion • Exception to S312 (contd): i) risk the life of the mother, or ii) causes injury to the mental or physical health of the mother,

    10. The Law Relating to Abortion • Comments to S132 The opinion of one medical practitioner formed in good faith that the continued pregnancy involve risk to the life to the mother suffices.

    11. The Law Relating to Abortion • PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 The facts: The woman had tubal ligation done by the accused. Later, she was found to be pregnant and had enlarged varicose veins. The accused gave her a saline injection, and a foetus was aborted.

    12. The Law Relating to Abortion • PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 The facts (contd): The accused gave evidence that he performed the abortion in good faith to save the life of the woman, who was suffering from enlarged varicose veins which might cause pulmonary embolism.

    13. The Law Relating to Abortion PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 Held: - Procuring an abortion is a serious matter and should only be done as a last resort to save the life of a woman from becoming a mental wreck.

    14. The Law Relating to Abortion PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 Held: - The accused had not given reasonable thought and had not taken enough steps to examine the woman further.

    15. The Law Relating to Abortion PP v Dr NadasonKanagalingam [1985] 2 MLJ 122 Held: - His finding that the woman had enlarged varicose veins is a result of his mere clinical examination, as there were no statistics to show from the cases of pulmonary embolism how many were caused by varicose veins.

    16. The Law Relating to Abortion PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 Held: - Therefore, there was no indication that the woman’s life was or would be in danger if the pregnancy was allowed to continue.

    17. The Law Relating to Abortion • Section 314 Penal Code Whoever causes death to the pregnant mother by an act done with intent to cause miscarriage, shall be punished with: a) imprisonment up to ten years, and b) liable to fine;

    18. The Law Relating to Abortion • Section 314 Penal Code If the act is done without the woman’s consent, shall be punished with: a) imprisonment up to 20 years

    19. The Law Relating to Abortion Explanation to Section 314 Penal Code It is not essential that the offender should know that the act is likely to cause death.

    20. The Law Relating to Abortion • The amount of fine that can be levied under S312 and S314 Penal Code S283(1) Criminal Procedure Code ‘ in the absence of any express provision relating to the fine in such law contained, the following provisions shall apply-

    21. The Law Relating to Abortion • The amount of fine that can be levied under S312 and S314 Penal Code S283(1)(a) Criminal Procedure Code where no sum is expressed to which the fine may extend, the amount to which the offender is liable is unlimited, but shall not be excessive;

    22. The Law Relating to Abortion Section 314 Penal Code • Mary Shim v PP [1962] 1MLJ 132 The court was satisfied that the accused procured an abortion by inserting a stick into the deceased’s womb. The deceased contracted septicaemia from which she died of septic abortion.

    23. The Law Relating to Abortion • The Position in India Abortion in India is legalized by the Medical Termination of Pregnancy Act 1971 (came into effect on 1.4.1972) as a method of curtailing population growth.

    24. The Law Relating to Abortion • The Position in India Section 3(2) Medical Termination of Pregnancy Act 1971 Pregnancies may be terminated by registered medical practitioners where: a) length of pregnancy does not exceed 12 weeks

    25. The Law Relating to Abortion • The Position in India Section 3(2) Medical Termination of Pregnancy Act 1971 b) length of pregnancy exceeds twelve weeks but does not exceed twenty weeks, if at least two registered medical practitioners are..

    26. The Law Relating to Abortion • The Position in India Section 3(2)(b) Medical Termination of Pregnancy Act 1971 Of opinion, formed in good faith, that,- (i) the continuance of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or

    27. The Law Relating to Abortion • The Position in India Section 3(2)(b) Medical Termination of Pregnancy Act 1971 (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

    28. The Law Relating to Abortion • The Position in India Medical Termination of Pregnancy Act 1971 Niketa Mehta’s case (4.8.2008) The Bombay High Court refused permission to abort a 26-week foetus with serious heart defect, as the doctors were uncertain whether there was any ‘substantive’ risk that the child would be seriously handicapped all its life.

    29. The Law Relating to Abortion • The Position in India Section 3 Medical Termination of Pregnancy Act 1971 Explanation 1 Where pregnancy is caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

    30. The Law Relating to Abortion • The Position in India Section 3 Medical Termination of Pregnancy Act 1971 Explanation 2 pregnancy occurs as a result of failure of any device or method used …for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute grave injury to mental health.

    31. The Law Relating to Abortion • The Position in India Comments to Section 3 Medical Termination of Pregnancy Act 1971 The number of registered medical practitioners is relevant only to form the opinion.

    32. The Law Relating to Abortion • The Position in India Comments to Section 3 Medical Termination of Pregnancy Act 1971 Once the opinion has been formed, the actual termination of pregnancy may be done by one registered medical practitioner.

    33. The Law Relating to Abortion • The Position in India Comments to Section 3 Medical Termination of Pregnancy Act 1971 It is not necessary that more than one registered medical practitioner should act together to terminate a pregnancy.

    34. The Law Relating to Abortion • The Position in India Section 5 Medical Termination of Pregnancy Act 1971 Pregnancy exceeding 20 weeks may be terminated even without the opinion of 2 registered medical practitioner where:

    35. The Law Relating to Abortion • The Position in India Section 5 Medical Termination of Pregnancy Act 1971 (contd) a)the registered medical practitioner is of opinion, formed in good faith, b) that the termination is immediately necessary to save the life of the pregnant woman.

    36. The Law Relating to Abortion • The Position in UK Section 37 Human Fertilization and Embryology Act Abortion is legal only up to 24 weeks unless: a) necessary to save the mother’s life, b) there are evidence of extreme fetal abnormality, or c) there’s grave risk of physical or mental injury to the mother.

    37. The Law Relating to Abortion • The Position in UK R v Bourne [1939]1 K.B. 687 Held: - Doctors could rely on the defence of necessity, for an act done in good faith in performing an abortion to avert a grave threat to the life and health of a pregnant young girl who was brutally raped.

    38. In Vitro Fertilization

    39. In Vitro Fertilization • Destruction of Embryo Issues: - • There are no consensus as to when human life begins • There are no agreement whether discarding of embryo is equivalent to abortion

    40. In Vitro Fertilization • Destruction of Embryo Guideline of the Malayan Medical Council on Assisted Reproduction Clause 4 If couples are separated, divorced or one of them becoming deceased, the stored gametes cannot be used and has to be destroyed

    41. In Vitro Fertilization • Meaning of Gamete A single male or female reproductive cell (sperm or egg cell), capable of joining with a similar single cell of the other sex to form a zygote

    42. In Vitro Fertilization • Meaning of Gamete Each gamete contains a single (haploid) chromosome: the double (diploid) chromosome of the resulting zygote contains the genetic information programming the growth of the new individual.

    43. In Vitro Fertilization • Selective Fetal Reduction Guideline of the Malayan Medical Council on Assisted Reproduction Clause 10 Where more than 3 fetuses are gestated, fetal reduction may be considered if:

    44. In Vitro Fertilization • Selective Fetal Reduction Guideline of the Malayan Medical Council on Assisted Reproduction Clause 10 (contd) a) the prospect of fetal viability is compromised or b) the health or life of the mother is threatened.

    45. In Vitro Fertilization • Prohibited Practices Guideline of the Malayan Medical Council on Assisted Reproduction Clause 15 Research cannot be carried out on human embryos more that 14 days old or where primitive streak has appeared, whichever earlier except with approval of Health Ministry

    46. The Law Relating to Euthanasia

    47. The Law Relating to Euthanasia • The Definition of Death a) Traditional definition Bennett v Peattie [1925] 57 OLR 233 Permanent cessation of cardiovascular and respiratory functions

    48. The Law Relating to Euthanasia • The Definition of Death b) Section 46Penal Code: ‘The word "death" denotes the death of a human being, unless the contrary appears from the context’ The Penal Code has failed to provide for a clear definition of ‘death’.

    49. The Law Relating to Euthanasia • The Definition of Death c) The development of organ transplant led to the concept of ‘brain death’. The concept of ‘brain death’ is important to facilitate cadaveric organ transplants from brain dead donors

    50. The Law Relating to Euthanasia • The Definition of Death d) Brain Death A person is recognized as dead when the function of the brain as a whole, including the brain stem, is irreversibly lost. A person certified to be brain dead is dead