Document Type : Research/Original/Regular

Authors

• Ruhollah Akrami ¹
• Abbas Ghalebzadeh ²

¹ Associate Professor of Criminal Law and Criminology, Qom University, Qom, Iran

² Doctoral student of Qom University,Qom,Iran

Abstract

In Iran, Indonesia, and Malaysia, abortion due to rape. has turned into a social issue, and on the other hand, in some of these countries, the difficulties in this field have been doubled due to lack of decision of laws. In Iranian law, abortion due to rape has not been clearly decided by the legislator, and abortion is allowed only subject to certain conditions just in paragraphs “A”, “B”, and “C” of the Article 56 of the Family Protection and Population Youth Law. In general, it should be acknowledged that even if it was possible under Iranian law, abortion due to rape would only be permissible under Article 56 of the Family Protection and Population Youth Law. However, the legislator of Indonesia has explicitly addressed abortion due to rape. in its laws, and if there are conditions, it is possible to have an abortion up to the 40th or 42nd day of pregnancy according to the words of Shafi'i jurist. Moreover, Malaysian law does not explicitly specify the permits for abortion due to rape; however, according to the existing criteria set by the legislator, such a permit may be considered.

Highlights

 Abortion is an increasing phenomenon creating many debates in a bunch of countries from social, religious, political, cultural, and legal viewpoints. In the Islamic Sharia and other heavenly religions, this procedure is strongly condemned and the criminal laws of most countries have prescribed punishments for it.

Moreover, in the legal literature of our country  (Iran), abortion has been defined as “intentional expulsion of the fetus from the womb, before its natural term, and in such a way that it cannot live anymore”  (Sepahvand, 2010), divided into four categories, including spontaneous or morbid, traumatic, criminal, and medical  (Shahpour Jani, 2017). In the definition of abortion, Indonesian authors also state that abortion is the intentional or unintentional removal of a fetus before it can independently live outside the womb; in other words, it means terminating the fetus’ life before it is given the chance to grow  (Ariad & Masihar, 2020). Besides, in a similar definition, Malaysian jurists refer to abortion as any action or any stopping action causing the termination of the life of an unborn baby. In other words, abortion is the termination of pregnancy before birth, resulting in the death of the fetus  (Musaa & Awangb, 2018).

There are several viewpoints on the issue of abortion permission. One is the viewpoint of supporters of the right to life that is based on the doctrine of the sanctity of human life; in this perspective, life is regarded as a valuable matter starting from the time of sperm formation and conception. Hence, from this viewpoint, the fetus is considered an innocent human being with the right to life, and depriving this right is prohibited in any way  (Mohammed   et al., 2018). On the other hand, there is the viewpoint of the supporters of the right to choose, which is consistent with the intellectual doctrines of freedom of will and feminist movements, according to which, the fetus is not regarded as a living being independent of the mother. In this framework, since a woman’s control over her body is considered as one of her basic rights, abortion may depend on her will  (Falah Nejad, 2013). And ignoring the women’s right to make independent decisions regarding  (their) pregnancy is a violation of their right regarding their own body  (Amirian Farsani & Goudarzi, 2019;Tabibi Jebeli, 2003). Meanwhile, a third perspective is also proposed, identifying a kind of relative freedom and believing in the abortion permission according to reasons like saving the life of the mother as well as physical and mental health given the specific situation of each country  (Tabibi Jebeli & Bidram, 2011). According to the report of the United Nations Population Division in 2011, the perspective of relative freedom in abortion has been accepted and this procedure has been prescribed under the conditions and it can is permitted in seven cases:

1- To save the woman’s life 2- To preserve the woman’s physical health 3- To preserve the woman’s mental health 4- in case of rape or incest 5- in case of fetal defects 6- for economic or social reasons 7- in case of request  (but during the limited period of pregnancy)  (Musaa & Awangb, 2018).

The pregnancy caused by sexual assault is the most prominent and prevalent examples of the abortion permissibility and perpetration in different countries. In fact, the most important cause of its occurrence may be due to the victim’s discontent with the relationship imposed on her by the assaulter and consequently an unwanted pregnancy for her, and bearing additional pressure as a result of which and in addition to the mental and physical injuries caused by the rape, now she has to bear the pregnancy discomforts. Hence, some countries’ laws have considered rape as one of the reasons for prescribing abortion.

The present paper has separately analyzed the legal approach of the three countries of Iran, Indonesia, and Malaysia towards abortion caused by sexual assault/rape. Choosing these two foreign countries for conjunction/comparison is according to two issues. First, both of the mentioned countries are among the Islamic countries with jurisprudential origin in terms of legislation, and given the Shafii religion of the majority of the people of these two countries, it has been clearly specified in their regulations that the legislator should follow this religion’s standards  (Akrami, 2021) and the present paper has shown this influence in some parts. Thus, this comparative study is worthy of attention from the perspective that it should be checked how much religious and jurisprudential views is reflected in them. The second reason of the selection of these countries is from the viewpoint that, besides the notable statistics of such abortions in their societies, they have adopted various patterns against this challenge  (Singh et al., 2018). Concerning the necessity of conducting this study, it should be said that after the approval of the Youth Population Law, in spite of its legislative shortcomings, no research has been carried out on it.

Method

This study uses descriptive-analytical method based on the latest regulations and legal doctrines. One of the research’s key objectives is the elevation of the level of knowledge as well as making scientific and research centers take the advantage of its results and providing practical and effective suggestions for criminal policy activists to solve the current shortcomings.

Discussion and Conclusion

1- Article 56 of the Family Protection and Youth Population Law approved in 2021 considers abortion permissible only in case of conflicting the fetus’ survival with the mother’s life and irreparable harm to the mother, provided that the soul has not been breathed into the fetus. Given the high probability of life risk for women victims of sexual assault and consequently becoming pregnant, either the possibility of suicide or murder by relatives, or the high psychological pressure of preserving the fetus by such victims, leading to severe embarrassment for them, it is possible to comment on the abortion permissibility in terms of the context of this provision. However, in the meantime, first it is essential for the legislator to explicitly and transparently specify regarding this challenge. Secondly, in sexual assault cases, the judicial authorities must be obliged to investigate the status of the plaintiffs’ pregnancy with the urgency condition regarding the pregnancy status of the plaintiffs and, if confirmed, decide regarding the abortion permission before the breath of soul into the fetus in case of the victim’s request. Thirdly, regarding the embarrassment caused by saving the fetus after rape, they should decide based on the fatwas of those jurists considering abortion after the soul has been breathed in the fetus and think about the solution of this problem.

2- In Indonesian law, based on Articles 75 and 76 of the Health Law approved in 2009, abortion due to rape is permissible with the mother’s consent, which has to be carried out by the authorized skillful health workers until the end of the sixth week of pregnancy, i.e. the 42nd day of pregnancy. This rule is based on Sahih Muslim Hadith when it has been accepted by some Shafii jurists. However, in Article 31 of the 2014 Regulation on reproductive health, abortion after rape has been prescribed only if the gestational age is forty/40 days, calculated from the first day after the last menstrual period, a word taken from the comments of some other Shafii jurists who have prescribed the abortion possibility only until this time. Based on Article 34 of this regulation, pregnancy caused by rape has to be verified with an inspector’s certificate.

3- In Malaysia, the legislator has not referred to abortion caused by sexual assault at all, but just under Article 312 of the Penal Code approved in 2015, it has ruled to exempt physicians who perform abortion in good faith, and where a risk is posed to the mother with the continuation of the pregnancy or if pregnancy affects the mother’s mental or physical health more than abortion. I.e., in this country, abortion due to rape is merely possible if meeting the exception criteria in Article 312 of the Penal Code.

Ethical consideration

Compliance with ethical guidelines                     

This paper has been performed according to the principles of human research ethics.

Authors' contribution: The second author is the corresponding author; the idea and preparation of references and the writing of the main jurisprudential topics have been carried out by the first author; and the other parts have been writtent collaboratively.

Conflict of interest: This research does not directly or indirectly conflict with any interest  (legal and natural entities).

Acknowledgments: We appreciate all research participants for their cooperation.

Keywords

• Abortion permission
• Pregnancy due to rape
• Crime against life Criminal Justice
• Islamic jurisprudence

20.1001.1.23452692.1402.11.3.2.2

Main Subjects

• women law