Interpretations of Islamic Law Deny Women Choice in Indonesia and Malaysia

Ramona Vijeyarasa

In most Muslim-majority countries, abortion is generally prohibited with exceptions made where the health of the mother is at risk, but doctors often aren't aware of the legal exceptions.

Last month
the Asian-Pacific Resource and Research Centre for Women (ARROW) published Surfacing, a compilation of the papers presented
at the 4th Asia-Pacific Conference on Reproductive Sexual Health and
Rights (APCRSH) in Hyderabad last year. Surfacing discusses
the impact of Roman Catholic, Hindu and Islamic fundamentalism on sexual
and reproductive health and rights in a number of countries in the region.
In many respects, the publication attempts to address the challenges
of religious fundamentalism, whilst encouraging a more rights-based
and gendered approach to practicing religion.  

Of particular
interest is Zaitun Mohamed Kasim’s contribution on Islamic fundamentalism. His contribution raises many concerning examples of how the differing interpretations
of Islamic jurisprudence bear upon a range of reproductive health issues
in Malaysia and Indonesia, two Muslim-Dominant countries in Southeast
Asia, where 60.4 and 86.1 percent of the population respectively
are Islamic. With no central doctrinal authority, fatwahs (religious edicts) serve as the "bridge"
between Islamic principles and modern life. With thousands of fatwahs
issued every month in Islamic countries around the globe, even religious
and political leaders in the Muslim world admit that the number is excessive, causing confusion and potentially
reflecting ideology more than learning. 

This divergence
in Islamic thought is reflected in the varying levels of acknowledgment
and acceptance of abortion. In most Muslim-majority countries, abortion
is generally prohibited with exceptions usually made where the health
of the mother is at risk. Malaysia’s Abortion
Act 1967

makes termination of pregnancy illegal, with minor exceptions. A pregnancy
may be terminated if two registered medical practitioners are of the
opinion, formed in good faith, that continuation of the pregnancy will
endanger the mother’s life. Termination of pregnancy is also advised
to prevent grave permanent injury to the physical and mental health
of the mother. ARROW reports that many service providers
and members of the public in Malaysia do not know the legal exceptions
for abortion, partly due a lack of accurate information and partly because
of the low priority accorded by the government to promoting women’s
reproductive rights. Dr
Choong Sim Poey of the Reproductive Rights
Advocacy Alliance

in Malaysia similarly suggests that whilst abortion services are "widely
available" in the private sector, information about public
sector abortion services is "hush-hush," with the Ministry of Health refusing to provide abortion services in public
hospitals based on the interpretation of the penal code.   

The Indonesian
abortion law is based on a national health bill passed in 1992 that
has been criticized for its vagueness. The law is generally interpreted as allowing
abortion only if the woman provides confirmation from a doctor that
her pregnancy is life-threatening, a letter of consent from her husband
or a family member, a positive pregnancy test result and a statement
guaranteeing that she will practice contraception afterwards. Like in
Malaysia, Maria
Ufar Ansor
, head
of the women’s section of Indonesia’s biggest Islamic Organisation,
Nahdlatul Ulama (NU), has stated that dangerous abortion techniques
are not uncommon, with the Guttmacher
two million induced abortions in Indonesia every year.  

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The study conducted
by the Guttmacher
is particularly
interesting for its survey of the attitude to abortion of 105 Muslim,
Catholic and other Christian religious leaders in Indonesia. This survey
revealed that 82% of the leaders surveyed agreed that abortion is acceptable
if a woman’s life is in danger, many reasoning that a woman’s life
should be prioritized over that of the fetus because a woman "is needed
to look after the children and family she already has." The survey
also concluded that Muslim leaders, though conservative, were more tolerant
of abortion than their Christian counterparts, with a higher proportion
of Muslim than Christian leaders supporting abortion if the pregnancy
would interfere with a woman’s schooling or impact her psychological

however, the Guttmacher report notes the differences in what is considered
an acceptable gestational period according to sect. Followers of Imam
Hanafi generally consider an abortion acceptable up to 120 days after
conception. However, followers of Syafi’i consider abortion acceptable
only within 40 days of conception. Indonesian Matters,
an Indonesian website on the theme of culture and Islamization, refers
to the head of the Majelis Ulama Indonesia (MUI), Indonesia’s Clerics’
Council, Ma’ruf
, who espouses
that the book recalling the words and deeds of Muhammad "says that
at the fortieth day of pregnancy the unborn child receives its soul
or spirit, and hence abortion after this time is forbidden." For this
reason, back in 2004, when 13 Indonesian Muslim scholars
proposed that an exception should be created for pregnancy resulting
from rape or incest, the MUI rejected the proposal, responding that
such an exception would amount to the taking of a life, jinayah
or murder.

of what is haram (prohibited) or halal
(permitted) in Islam similarly impact contraceptive use, attitudes towards
family planning services for unmarried couples and people living with
HIV/AIDS, which I will discuss in a future posting. Yet, the impact
on abortion alone is sufficient to highlight the potential gravity of
restrictive interpretations of Islamic tenets, with the World Health Organization reporting that in 2000 unsafe abortion
accounted for 19 percent of maternal deaths in Southeast Asia. At the
same time, the differences in the abortion laws in the two countries
as well as the divergence of opinion within the Islamic religion itself,
remind us about the necessity to distinguish between religion and religious
fundamentalism. What we see here is the interpretation and application
of religious principles in a way that encroaches on reproductive freedoms
at the cost of women’s lives.

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