Abortions for rape victims spark controversy

Abortions for rape victims spark controversy

By Stevie Emilia

JAKARTA (JP): Before taking up their profession, doctors are
required to recite an oath, a part of which reads: "I will
respect human life from its conception."

However none of them ever thought they would have to treat a
16-year-old girl gang raped in the May riots and left pregnant by
her ordeal.

None of them imagined they would ever face such a difficult
dilemma, whether to perform an abortion as requested by the girl
and her parents, or to uphold their medical oath no matter what
the circumstances.

But that is the dilemma facing Wid, a doctor who recently
wrote a letter to a consultation column in the Kompas daily
newspaper.

The letter received a mixed reaction from readers. Some told
him to go ahead with the abortion, while others urged Rina, the
girl, to keep the baby and let others take care of it once it was
born.

About 160 women, mainly of Chinese descent, were reportedly
raped during the May riots.

Wid and Rina may be not the only ones facing such problems.
There must be many more Wids and Rinas too afraid to bring their
difficulties to the surface.

Their fears of raising the issue in public is understandable.
There is a lack of support for rape victims, having a child
outside wedlock is not acceptable here and abortion is strictly
prohibited under the Criminal Code.

Article 346 of the code states that a woman who deliberately
aborts or terminates her pregnancy, or has another person do so,
shall be subject to a maximum of four years in prison.

Articles 347, 348 and 349 of the Criminal Code link abortion
and the medical profession. All of these articles stipulate that
the act of terminating life (aborting a fetus) is prohibited.

But noted lawyer and feminist Nursjahbani Katjasungkana gives
the nod to abortion for rape victims.

"I'm willing to defend doctors who conduct abortions on rape
victims. I have some arguments (to defend their actions),"
Nursjahbani told The Jakarta Post.

She pointed out that in such cases, the doctors' intention is
to help the mothers and to improve her health.

"The doctors' motive is not to kill the (would-be) baby. So,
they should not be prosecuted," Nursjahbani said.

According to Chapter 1 of Health Law No. 23/1992, health is
not only defined as a medical or physical condition, but is also
related to mental and social wellbeing, she said.

"Besides, our laws have not yet determined when life begins.
And that can be used as the basis of a legal argument if a doctor
decides to go ahead and abort a pregnancy," Nursjahbani said.

Article 15 of the Health Law stipulates that a "certain
medical act" can be performed under emergency circumstance in
efforts to save the life of a pregnant woman and/ or her fetus.
This "medical act" must be justified by a team of health experts,
performed by authorized professional personnel, and conducted in
medical facilities with the approval of the mother or her family.

But the law is confusing. The article goes on to stipulates
that terminating pregnancies for whatever reason is against the
law and religious and moral norms.

Nursjahbani noted the ambiguities contained in the Health Law
and pointed out the term "abortion" was never mentioned, the
action instead being referred to as "a certain medical act."

"Legally, the phrase 'certain medical act' is not clearly
defined, whether it means abortion or any other operation is open
to interpretation," Nursjahbani said.

Nursjahbani does not believe abortion should be completely
legalized, despite her conviction that rape victims should be
exempt from the current law.

"There's strong public objection to legalizing abortion. But
if abortion was to be allowed, the current law should be adjusted
in several phases, the first of which should be to legalize
abortion for rape victims," Nursjahbani said.

Chairman of the Indonesian Medical Association (IDI) Merdias
Almatsier said in an interview with the Post that IDI could not
simply say whether or not it approved of abortion for rape
victims.

"It depends on the norms within society, religious figures,
legal experts, and the law," said Merdias, vice director of Cipto
Mangunkusumo General Hospital's training, research and treatments
unit.

And in the meantime, doctors, like it or not, have to comply
with the law unless they want to risk being prosecuted, he added.

"Besides, there's no government regulations which could be
used as reference to implement Health Law No. 23/1992," Merdias
added.

Cause

He said the law suggested doctors could conduct the "certain
medical act" to save the mother if there was strong cause to
believe that her life would be endangered by the pregnancy or
delivery of the baby.

So doctors should first find good reason for this diagnosis
before deciding to terminate the pregnancy, he said. A mental
disorder which could lead the pregnant woman to commit suicide or
harm herself could be used as medical justification, he added.

"If she's healthy, it's difficult to determine whether there's
a need for it (termination of the pregnancy)," said Merdias.

Husein Muhammad, a fiqh (Islamic law) expert from Nahdlatul
Ulama (NU), told a public debate on violence against women last
week that the termination of pregnancies after 120 days was
strictly prohibited.

Controversy still surrounds cases before the 120 day watershed
has been reached.

However the mass rape of woman in Bosnia and here in Indonesia
during the May riots have forced contemporary fiqh experts to
offer new thoughts on pregnancies resulting from rapes, he said.

Quoting the 17th edition of Al Buhuts al Fiqhiyah al
Mu'ashirah, a Riyadh-based magazine on contemporary fiqh
analysis, he said that if a woman was certain that her pregnancy
was the result of rape (as stated by a doctor) before her fetus
is 120 days old then she can terminate her pregnancy, even after
the fetus is more than 120 days old.

Head of Nahdlatul Ulama (NU) Moslem organization's women's
working group Lily Zakiyah Munir told the Post that people can
also refer to the principle of kemaslahatan, or the goodness of
Islam, for guidance.

She explained that one has to look at the wisdom of conducting
an abortion and how it would affect the victim.

"A 16-year-old girl, for example, is not ready to become a
mother in almost all respects. Besides, our law does not
recognize babies born outside wedlock. So one can determine what
is best for the victim using the kemaslahatan principle," Lily
said.

Babies born outside wedlock are treated differently from other
babies and their bastard status is marked on their birth
certificates, Lily said. Society frowns upon such children and
Indonesian law rules that such children only have "civil
relations" with their mother, meaning that they are not entitled
to their father's legacy.

Lily said that as a woman, she could feel and imagine the
suffering and trauma of the victims.

"Religion is not intended to complicate the lives of believers
and to make them suffer. It is supposed to be a blessing. So, she
(the victim) has to think about what is best for her," she said.