The rights of an unborn child beyond abortion in Malaysia / Astrid Sinarti Hassan

The legal status of an unborn child remains ambiguous both in foreign jurisdictions as well as in Malaysian law. The current legal stance recognises the analogous right to life for foetus but there are contrary of views on the stage of development in utero in which this recognition of ‘personhood’ and the absolute right to life should be given. A number of literatures are available covering issues related to the rights of the unborn child in the context of abortion. Abortion is generally prohibited under the Malaysian Penal Code because it is equivalent to taking the life of a human being while still in the process of development. It can be allowed though, but only in certain circumstances. In the Malaysian context, abortion impacts directly on the rights of both an unborn child and a potential human being to existence. It is an accepted norm in any civilised society that life of a human being is unique and blessed by divine, and no one is allowed to put an end to that life unless for very specific reason permissible by law. However, the law might be limited and do not address special circumstances with regards to the rights and privileges of the unborn child beyond the context of abortion. The main objective of this study is to examine the rights of an unborn child beyond the context of abortion and to suggest whether or not he or she deserves the independent legal status of a ‘person’ or ‘patient’. This study will examine the Malaysian law, foreign legislations, international acts and court decisions by employing a doctrinal analysis and comparative analysis. This study also examines whether the foetus has any legal rights in order to justify abortion from legal and medical perspectives, to discuss the ethical issues including women’s rights and mother’s obligation towards the foetus and whether or not a foetus should be recognised as a victim of crime. This study concludes with proposed recommendations that might be feasible to ensure that children’s right to live are well safeguarded even before they were given birth to specifically in the Malaysian setting.