In the RKUHP, the setting of ‘deliberate termination of a human pregnancy’, or also known as abortion, is regulated in two chapters, namely Chapter XIV on Crimes against Decency (Kesusilaan), specifically in the Sixth Section on Treatment that May Lead to Termination of a Human Pregnancy (Article 501) and Chapter XIX on Crimes against Life, specifically in the Second Section on Abortion (Article 589, 590, 591 and 592).
Open discussion by the Working Committee for RKUHP at the House of Representatives (Panja RKUHP) has been implemented on 14 December 2016 and 24 January 2017. Article 501, Article 589 Paragraph (1) and Article 592 have been approved by the Drafting Team (Timus) and Synchronization Team (Timsin). While the majority of abortion problems in Article 589 paragraphs (2) and (3), Article 590 paragraph (1), paragraph (2) and Article 591 paragraph (1) and paragraph (2) were still postponed by Panja RKUHP on 24 January 2017. These articles were being postponed because the Government requested an additional time to consult the formulation of abortion with the Indonesian Doctors Association (IDI). Currently, the Government proofreader has finished reviewing the articles of abortion, but Timus and Timsin are required to be more carefully to formulate and synchronize those articles with the relevant regulations, in order to avoid criminalization upon rape victims, pregnant women who have medical emergencies, health personnel, and other supporting personnel.
Institute for Criminal Justice Reform (ICJR) and the Indonesian Family Planning Association (PKBI) Network, which are incorporated in the National Alliance for Criminal Code Reform, strongly rejected the formulation of abortion articles in the RKUHP. The formulation of abortion articles in the RKUHP is contradictory to Law No. 36 of 2009 on Health, specifically the Sixth Section on Reproduction Health, Government Regulation No. 61 of 2014 on Reproduction Health and Minister of Health Regulation No. 3 of 2016 on the Training and Organization of Abortion Services Based on Indications of Medical Emergency and Rape Pregnancy.
In principle, the State prohibits the act of abortion through Law No. 36 of 2009 on Health. However, the act of abortion in special medical situations is the only way that can be conducted by medical or health personnel to save the life of a mother with serious health problems during pregnancy. The provisions governing the act of abortion in such medical conditions have been regulated in Article 75 and Article 76 of Law No. 36 of 2009 on Health.
The abortion-related arrangements in the RKUHP are very different and contradictory to Law No. 36 of 2009 on the Health, in which the RKHUP that will soon be completed is potentially criminalize pregnant women, victims of rape pregnancy as well as their legal counsels. Though the act of abortion due to medical emergency situations and/or due to rape pregnancy is ”abortus provocatus therapetics”. It is an effort to save lives and the future of the mother. Whereas, the therapeutic provokatus abortion procedure is in accordance with the provisions under the prevailing legislation, whereby the Health Personnel who perform the acts of therapeutic provokatus abortion in accordance with the terms and conditions stipulated under applicable laws and regulations should not be subject to criminal charges.
Organization of abortion is further regulated in Minister of Health Regulation No. 3 of 2016 on the Training and Organization of Abortion Services Based on Indications of Medical Emergency and Rape Pregnancy. The Minister of Health Regulation explains that the provision of abortion services that are aiming to save mothers based on medical indications and/or rape pregnancy, are conducted using a low-risk method, are carried out by a trained or skilled personnel, and are with the mother’s consent, are justified by law.
The formulation of current RKUHP contains several criminal implications to women who have unwanted pregnancies due to being rape victims, pregnant women whose life safety and the fetus they contain are threatened, as well as health personnel and supporting personnel to pregnant women that will perform abortion, including:
Firstly, regarding the implications to rape victims, they should not be criminalized. Conversely, they should be protected. Criminalizing rape victims may be causing bad impacts to their physical, mental and social circumstances. Criminalization upon rape victims will force women to continue their pregnancies without readiness that could potentially cause psychological disturbance and depression to them, as well as provide unfavorable situations for growth of the prospective children.
Secondly, concerning the implications to pregnant women whose life safety and the fetus they contain are threatened, it carries serious disadvantages to mother or women who have medical complications and are unable to access safe abortion and eventually leading to loss of life. For example, in the case of pregnant woman with a fetus without a head shell is forced to continue her pregnancy because of the fear of health personnel to provide safe abortion services, then at birth the baby cannot be given a significant help to support his/her life. On the other hand, if the pregnancy is continued, the poor conditions of the baby may result in maternal death, especially in locations where there is no access to comprehensive obstetric and essential neonatal health services (PONEK). In fact, this kind of congenital abnormality can be identified in the first trimester and it is possible for the performance of a safe induced abortion.
Thirdly, concerning the criminal implications to health personnel, it will interrupt with their efforts to assist women with rape pregnancy and/or in the event of a medical emergency, as authorized under Law No. 36 of 2009 on Health. The formulation in the RKUHP has limited and cutback the authority of health workers. It is worrying situation if because of the fear of being criminalized, medical personnel will choose not to provide adequate information and safe abortion services.
Fourthly, if the RKUHP only make an exemption for doctors to perform abortion, it will make health personnel, counselors and pre- and post-action health advisers, who are based on the prevailing regulations allowed to provide information on abortion, will be more reluctant to offer their help.
The implications of criminalizing counselors or pre- and post-action health advisers, as has been regulated in Article 75 paragraph (2) of Law No. 36 of 2009 on Health, will also threaten the existence of the abortion feasibility team, as regulated under Article 33 of Government Regulation No. 61 of 2014 on Reproduction Health. [1] This may result in women to prefer unsafe abortions which endanger their lives.
Institute for Criminal Justice Reform (ICJR) and the National Alliance for Criminal Code Reform observe that the articles relating to abortion in the RKUHP must be referring to Law No. 36 of 2009 on Health and its implementing regulations. Otherwise, the abortion provisions in the RKUHP which have been postponed by Panja should be abolished, in order to avoid criminalization upon rape victims, pregnant women whose life safety and the fetus they contain are threatened as well as medical personnel and supporting personnel
