Abortion Policy in Indonesia

Abortion became major issue in Indonesia. There are a lot of controversies behind the policy of abortion, but generally there are two poles of perspectives, pro-choice and pro-life. This paper tries to see abortion from different way and discuss macro-perspective of abortion from religious and legal perspectives as well as provides micro-analysis from individual perspectives to find the reasons why the women need to do abortion. With concerning to local and rights perspectives, this paper attempts to provide alternative or third perspective of abortion in Indonesia and provide alternative policy recommendation for this issue

Key Words: Abortion, religion, rights, law

Background

Millions of Indonesian women become pregnant involuntarily because of many reasons every year. Many of the women decided to terminate their pregnancies even those abortions [3] are generally illegal according to Indonesian Law and Indonesian social system. Similar problems are also faced by their counterparts in many developing countries where abortion is stigmatized and highly restricted. The women who don’t have access to legal abortion often try to end their pregnancy by their-self through consume specific foods (Pineapple, Black Beer etc) and beverages as well as do specific activities (jump many times) those are believed can stop their pregnancy and/or look for illegal abortions that usually performed by unskilled providers with unsafe methods that might be danger for the mothers (Guttmacher Institute, 2008; Susilo and Lestari, 2003).

According Guttmacher Institute (2008), the death rate from unsafe abortion [4] is relatively high, about 14 to 16 percent in Southeast Asia. Based on the research conducted by University of Indonesia that was quoted by Susilo and Lestari (2003), the estimation number of abortions in Indonesia is about 2,000,000 per year. Based on death rate from unsafe abortion in Southeast Asia and the number of abortions in Indonesia, we can estimate that 300,000 Indonesian women die because of unsafe abortion every year.

There are a lot of controversies behind the policy to reduce the death rate from unsafe abortions. On one side, human rights activists and pro-choice activists suggest a rights based approach for dealing with abortion choices and improving quality of the providers to reduce the death rates because of abortion (Staggenborg, 1991; Boonin 2003). On the other side, pro-life activists are against abortion practices, based on moral, political, legal, and religious perspectives (Beckwith, 2007).

Indonesia is the biggest Muslim country in the world and has strong religious culture. Legalization of abortion as proposed by pro-choice activists will take a lot of political and social cost. On the other hand, pro-life activists can’t seem to provide alternative ways that are appropriate for Indonesia to reduce abortion. Based on the reasons above, it is important to find a way to reduce unsafe abortion in Indonesia, but we cannot expect to follow both pro-life and pro-choices. Is there alternative way to reduce number of death because of unsafe abortion in Indonesia?

To answer the question, this paper provide macro-analysis of abortion from religious and legal perspectives and provide micro-analysis from individual perspectives to find the reasons why the women need to do abortion and formulate policy recommendations for alternative intervention based on the finding of abortion reasons to directly reduce the unsafe abortion and the need of abortion and indirectly, we can expect to reduce maternal death because of unsafe abortion.

To accommodate the purposes, this paper will be presented as follows: The second section of this paper will explore the discourse of religious perspectives of abortion and existing abortion policy in Indonesia from macro-perspectives. The third section will explore abortion reasons and decision making from micro-perspectives. The fourth section will discuss the policy perspectives of abortion and providing alternatives interventions based on discussion in second and third section.

Macro-analysis of abortion

Abortion and Religion

Majority of Indonesian are Muslim. Islam is a diverse religion, and its interpretation differs among the Muslim world. There are 5 Muslim taughts: Hanafi, Maliki, Syafii, Hanbali, and Jafari which have difference interpretation on Islamic law and jurisprudence (Sciortino et al, 1996). In cases where Islamic jurisprudence is unclear, religious leaders will issue fatwa (nonbinding religious edicts) to provide guidance to Muslim society (Mudhzar, 1993).

Discussions on abortion have a long history in Muslim thought. Most Islamic scholars agreed abortions were allowed if pregnancies ended before soul enters the fetus (Hessini, 2007) and because of specific reasons, which may include: rape, specific health problem for children or physical complications for the mother (Hewitt, 2004).

In Indonesia, there are different views among Muslim leaders about when soul enters the human body and until when abortion permitted. Followers of Imam Hanafi considered abortion acceptable for up to 120 days after conception (Wahid, 1999), while followers of Syafi’i believed that abortion must only take place within 40 days of conception (Guttmacher Institute, 2008).

Muslim leaders in Indonesia also have different views about the permissible abortion. Muhammadiyah’s Ulama perceived that abortion is forbidden because of destroying value of life. In other side, most of Muslim leaders under the umbrella of Nahdlatul Ulama, the biggest Muslim organization in Indonesia, perceive that abortions can be done for the specific reasons (Sciortino et al, 1996; Wahid, 1999).

The Council of Indonesian Ulama or Majelis Ulama Indonesia (MUI) [5] is playing a significant role in discussing abortion law reform and more attention is being given to social and medical reason for abortion. Statement of council of Indonesian Ulama (MUI) at National Conference of Ulama on Population, Health and Development was in line with The Muhammadiyah’s belief on abortion but also try to accommodate NU’s perceptions. MUI stated that abortion practices in any forms and any stages, including menstrual regulation, are forbidden in Islam (haram) except if the pregnancies endanger the life of mother (Mudzar, 1993).

MUI re-formulate Islamic jurisprudence about abortion trough Fatwa MUI No. 4/ 2005. The component of fatwa as follow (MUI, 2005):

Abortion is haram if it done after implantation of blastocyst [6] on endometrium.

Abortion is permitted in case of emergency or hajat.

It is permissible to carry out abortion in case of emergency, and with the purpose of saving the life of a pregnant woman. The emergency cases are defined as follows:

Pregnant woman have severe physical illness like advanced stage of cancer, tuberculosis caverna and other severe illness which should be decided by medical doctor team.

In case pregnancy is dangerous for life of a pregnant woman.

It is permissible to carry out abortion in case of hajat. The hajat cases are defined as follows:

Embryo or fetus has genetic disadvantage or illness that when he / she delivered, it will be difficult to be cured.

Pregnancy because of rape. Pregnancy category, whether it is because of rape or not, is decided by team with special authority (Victim’s family, medical doctor, and Muslim ulama).

Abortion because of point “b” above should be done before fetus get 40 days old.

Abortion is haram for pregnancy which was caused by fornication or adultery.

Legal status of the fatwa is having no legal power and no legally binding (Susetyo [7] , Personal Communication, December 24, 2008). It is only influence to social and religious affair of Indonesian Muslim society. But, the implementation of MUI’s Fatwa about abortion is usually supported by two biggest Muslim organizations in Indonesia, Nahdlatul Ulama and Muhammadiyah, which total member of both represent majority Indonesian Muslim and have strong influence to Indonesian politics and legal system. It means that the fatwa might be a one of references for political decision and policy making

Perceptions of Muslim thought on abortion are similar with other religions like Catholic or other Christian in Indonesia. A survey result of 105 Muslim, Catholic and other Christian religious leaders in Yogyakarta that was conducted by Ford Foundation and Center for Population and Policy Studies, University of Gadjah Mada (Guttmacher Institute, 2008), show that the majority of religious leaders in survey area (82%) agreed that abortion is acceptable if pregnancy is danger for women life. Most of religious leaders believe that a woman’s life is more important than the fetus’s life, because she is needed to taking care her children and family.

The survey results also show that Muslim leaders have a more tolerant perception on abortion than their Christian counterparts. For example, while most religious leaders did not agree that abortion can be executed if the pregnancy would negatively affect to education of women or affect to psychological health of women, the proportion of Muslim leaders who supported abortion of these issues are higher than Christian leaders. Additionally, while no Christian leaders on that survey supported terminating pregnancies because of contraceptive failure, some Islamic leaders considered that abortion practices because of this reason are acceptable (Guttmacher Institute, 2008).

Abortion in Indonesian legal system

Abortion and related issues have been stipulated in Indonesian law. Two major laws that regulated abortion are Indonesian penal code and Law No. 23/1992 on Health. The implementations of both laws are supported by Indonesian Medical Doctor Code of Conduct. Detail statements of the laws as follow:

KUHP (Indonesian Penal Code)

According Indonesian Penal Code, abortion is a criminal activity and will be punished under the law. The punishment is vary depend on who made the decision for abortion and impact of the abortion to the mother. Who was involve in abortion or who help abortion process also will be punished. If a physician, the midwife or pharmacists involve in abortion, they will not only get legal punishment but also professional punishment (Indonesian Penal Code, Republic of Indonesia). Detail abortion related articles on Indonesian Penal Code can be found at the annex.

Law No. 23/1992 on Health defines abortion as illegal except for specific purposes. Section 2, paragraph (1 and 2) states:

In case of emergency, and with the purpose of saving the life of a pregnant woman or her fetus, it is permissible to carry out certain medical procedures. Medical procedures in the form of abortion, for any reason, are forbidden as they violate legal norms, ethical norms, and norms of propriety. Nevertheless, in case of emergency and with the purpose of saving the life of a pregnant woman and/or the fetus in her womb, it is permissible to carry out certain medical procedures (Republic of Indonesia, 1992 as cited in Utomo, 2003).

Indonesian Medical Doctor Code of Conduct

Section 7b of the code of conduct mentioned that Medical Doctors are not permitted to do abortion (abortus provocatus or induced abortion) except if abortion is the only way for saving the life of mother. Medical indication of pregnant woman that is dangerous for her continuing pregnancy can be change by the time and medical technology advancement. Tuberculosis or hypertension can’t be used as indication to undergo abortion anymore. Decision to conduct abortion should be done by minimum two medical doctors with written agreement from the pregnant woman, his husband or other closed family members. Abortion should be in hospital which has enough appropriate facilities (Indonesian Medical Doctor Association, 2004).

Thus there is disharmony between Indonesian Penal Code and Law No. 23/1992 on Health. The penal code stated that abortion is forbidden. Contrary, the Law No. 23/ 1992 stated that abortion is permitted for specific reason. For the interpretation, we should follow the concept of Lex Specialis Derogat Lex Generalis, which means that the recent law overrides the previous law or the specific law overrides the general law. In this case, we should refer to the Law No. 23 on health.

But, if we refer to the Law No. 23 on Health, we will never found practical practical guideline about when abortion can be done. The law only mentions “in case of emergency and with the purpose of saving the life of a pregnant woman and/or the fetus in her womb, it is permissible to carry out certain medical procedures” The law only mention about emergency condition and not other conditions as discussion on legal law perspectives. Additionally, there is no practical guideline about “what is the emergency condition?” And also contradictive sentences about “saving the life of a pregnant woman and/or the fetus in her womb” If we would like to saving the life of mother through abortion, we can’t expect to safe the fetus’s life. If we would like to safes the life of both mother and fetus, it cannot be categorized as abortion and of course there is no laws forbid the medical procedures to save mother and fetus.

In practical guidelines, there are different interpretations about criteria of emergency and dangerous pregnancy for women between the fatwa from MUI as religious rule and the code of conduct of Indonesian Medical Doctor Association as practical rule of medical doctor. The multi-interpretations about when the pregnancy is dangerous of women will affect to incorrect decision making, especially on the grass root level. Unfortunate if women become a victim of the miss-understanding between medical and religious perspectives.

Micro-analysis of abortion

Unwanted Pregnancy

According Singh et al (1997), the major reason of both married women and unmarried woman to find induced abortion is unwanted pregnancy. The majorities of women who look for an induced abortion are married or live in a stable union and have several children with economic constraint to have a more child. The other major group is young unmarried women who look for an induced abortion because social constraint to have baby without formal marriage. Unwanted pregnancy may occur for various following reasons:

Millions of women and men either do not have access to appropriate contraceptive methods. Based on Indonesian demographic health survey 2003, 39.7% of currently married women and 98% of currently married men Indonesia have insufficient access to modern methods of contraception.

Tautz (2004) and Susilo and Lestari (2003) mentioned that there are no 100 percent effective contraceptive methods. Even if all contraceptive users were to use methods perfectly all the time. Thus, even with high rates of contraceptive use, un-wanted pregnancies will occur which women may seek to end by induced abortion. According Scortino (1998), there is case that women in Indonesia who use IUD for 5 years and it failed, and she have to seek for abortion because she was not prepared for continue pregnancy.

Tautz (2004) also mentioned that many people do not have adequate information and support to use contraceptives effectively or do not always manage to use them perfectly. In other hand, Susilo and Lestari (2003) mentioned that there is 9% of couples in reproductive ages who don’t want to have pregnancy but don’t use contraception.

Sexual coercion and rape: Women’s right of sexual self-determination is restricted in many societies. Unwanted pregnancy caused through rape is a particular concern in conflict and refugee situations (Tautz, 2004). In Indonesia, it shouldn’t be reason for seeking illegal abortion because termination abortion because of rape is legally considerable.

Pregnancy status change and man irresponsibility: Pregnancies can also change from being wanted to becoming unwanted through changing of social status of pregnancy such as unstable or changing relationships or rejection of fatherhood (Tautz, 2004; Utomo, 2003).

Fear of punishment: In the case of adolescents, fear of negative parental reactions, social stigmatization to a pregnancy or of drop out from school may lead to the decision of pregnancy termination (Tautz, 2004; Utomo, 2003).

Social and economic reasons: poverty or economic constraint is major reason for married women to have more children. Fear of job loss and of social stigmatization is one of reason for unmarried women in case of unwanted pregnancy and consideration of undergo abortion (Tautz, 2004).

Abortion Decision Making:

The Indonesian life is complex, multifaceted and ruled by multiple formal and traditional legal systems. The abortion decision of married and unmarried women in Indonesia are affected by social constraint, legal system, unwillingness to consult the legal medical services and desire for privacy (Surjadjaja, 2007).

According WHO (1978), the decision making process facing unmarried women with unwanted pregnancy involve an interaction between her individual psychology, social pressure and the willingness of services provider to undergo abortion. According the Guttmacher Institute (2008) and Utomo (2003), unmarried women of Indonesia with unwanted pregnancies face difficult choices: giving birth and facing social stigmatization as well as loss of family or parental support; or undergo an illegal abortion, risking serious injury or death by bleeding, infections etc.

For young unmarried women or adolescents with unwanted pregnancy, ignorance may be the first and major constraint. She might be not sure whether she is pregnant and is ashamed to ask advice from family or friends. She is often unaware of other sources of help, even when the sources are available. Her age, education, social class and career expectation will affect her decision whether she will continue her pregnancy or do abortion. Her possibility and desire to continue the pregnancy are subject to personal decision (WHO, 1978; Utomo, 2003).

The problem of abortion choices were faced pregnant married women are different than unmarried women but equally complex (WHO, 1978). In Indonesia, with strong kinship systems and strong social control on sexual, marital and reproductive activity of the young, demand for abortion is most likely to derive from married women who have large families and economic constraint or married women who are not ready to have more children (Guttmacher Institute, 2008). The decision to seek abortion depends on relationships between the woman with her husband or her family. According Sciortino (1998), there are cases that services provider in Indonesia would not undergo legal abortion without permission from her husband or family.

Policies Analysis and Recommendation

As mentioned in section two, Indonesian Law, informal legal system, like religious law as well as formal legal system has flexibility for women with unwanted pregnancy to undergo abortion under specific requirement. But formal legal system still can’t able to provide clear guidelines for abortion and will bring stakeholders on the multi-perceptions.

The one of major problem related with the Indonesian laws on abortion is misinterpretation and lack of understanding of women with unwanted pregnancy as well as lack of understanding of abortion provider about which one permitted abortion and which one forbidden about abortion under the laws.

Sometimes, women with unwanted pregnancy are afraid to have a legal abortion because they think it is illegal although in their cases might be categorized as legal, because they have misperception about law related with abortion and are afraid of the legal consequences.

Moreover, health practitioners sometimes are also afraid to carry out a legal abortion and refuse the women who are seeking save abortion because they don’t have clear understanding which one permitted abortion and which one forbidden. Because of those reasons, women with unwanted pregnancy have to seek illegal or unsafe abortion.

Therefore, socialization about the laws with clear practical translation should positively affect on reducing illegal or unsafe abortion in the short term. In the long term, legal improvement, especially revision of the laws to avoid multi-interpretations, should be effective ways.

The legal improvement approach should in line with capacity improvement to provide save abortion and counseling. We have to make sure that the women who with rights to undergo abortion under the laws know how to and have access to counseling and safe abortion.

The legal improvement might be able to reduce the proportion of unsafe abortion from the women who need to undergo abortion, but the legal can’t reduce the number of women who need to undergo abortion. To reduce the demand of abortion, we have to know what the major reasons for abortion or the root of abortion decision making are.

As discussed in section three, the root of abortion decision making is unwanted pregnancies. Therefore, legalization abortion might be not right solution to reduce unsafe abortion Indonesia, because legalization abortion not only can’t reduce unwanted pregnancy as real causes of abortion but also has huge social and political cost in Indonesian context.

Strategies for reducing unwanted pregnancy can be effective strategy to reduce unsafe abortion in the long term. Base on discussion about unwanted pregnancy on part three, the strategy to reduce unwanted pregnancy can be formulated as follow:

Improving access and quality of contraceptive. First and foremost, improve access to and quality of contraceptive methods and services should be ensured and continually. Second, eliminate barriers that currently limit women’s and men’s access to contraception. In many cases women become pregnant because contraceptive means and services are not available, or financially, culturally, geographically not accessible, or because they are not effective.

Improving knowledge, attitude, and behavior about the right way to use contraceptive. In some cases women become pregnant because the couple didn’t have enough understanding about right way how to use contraceptive.

Men involvement. As discussed at section three, some pregnancy became unwanted because of refusal of fatherhoods or unstable relationships, male responsibility in pregnancy is very important. Legal advocacies to address responsibility of men on pregnancy under the law is very important to reduce abortion because this cause.

Integrating family planning with income generation and poverty alleviation program. As discuss in chapter three, economic constraint is one of major reason of unwanted pregnancy of married women. Income generation can be effective arm to directly reduce unwanted pregnancy and indirectly reduce abortion on poor women.

Improving access of unmarried women with unwanted pregnancy to schooling. Fear of expulsion from school may one of major reason of adolescent with unwanted pregnancy to undergo abortion. Advocacies to change school policy and education system for accepting pregnant women are one of possible strategy to reducing unsafe abortion in adolescent.

Improving access of women with unwanted pregnancy to keep their jobs. Fear of expulsion from occupation may one of unmarried women with unwanted pregnancy, especially who working for blue collars jobs, to undergo abortion. Advocacies to change industrial relation for accepting pregnant women are one of possible strategy to reducing unsafe abortion.

Social advocacy to society. We need to ensure society aware that delivers the baby for unmarried women is better than undergo abortion. Some of unmarried pregnant women do abortion because they afraid with social punishment. We can advocate the right of life and we can expect that community can provide support to unmarried women to take care with baby with appropriate advocacy.

Conclusion

Millions of Indonesian women become pregnant involuntarily, and many of them choose to end their pregnancies, despite the fact that abortion is generally illegal. There are a lot of controversies behind policy to reduce the death rate because unsafe abortion. This paper provides alternatives ways to reduce unsafe abortion trough reducing unwanted pregnancy from Indonesian perspectives.

The major strategies are legal reform, communication and advocacies. Socialization about abortion law in Indonesia should be important part in the strategy. Improving the quality and quality of contraceptive access as well as advocacies for schooling, working place and society are important arm for the implementation of the strategy.

This paper is only proposes brief of alternative ideas to reduce unsafe abortion and demand of abortion. This paper did not provide comprehensive strategy for it. I hope this paper can influence the development of further intervention strategy or further research to find alternative strategies for reducing abortion.



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