Transcript Law relating to Abortion

Biomedical Ethics and the
Law
LEE SWEE SENG
LLB, LLM, MBA
Advocate & Solicitor
Notary Public,Trademark, Patent Agent
Certified Mediator
[email protected]
www.leesweeseng.com
The Law Relating
to Abortion
The Law Relating to Abortion

Section 312 Penal Code
‘Whoever voluntarily causes a woman with
child to miscarry shall be punished with:
a) imprisonment up to 3 years or
b) fine or
c) both;
The Law Relating to Abortion

Section 312 Penal Code (contd)
and if the woman is quick with child, shall be
punished with
a) imprisonment up to 7 years, and
b) fine
The Law Relating to Abortion

Definition of ‘Woman Quick with Child’
Bouvier’s Law Dictionary, Revised
6th Edition (1856)
The mother is said to be ‘quick with
child’ when the motion of the foetus,
called quickening, is felt by the mother.
The Law Relating to Abortion

Definition of ‘Woman Quick with Child’
Bouvier’s Law Dictionary, Revised
6th Edition (1856)
Quickening happens at different periods
of pregnancy in different women.
Usually about the 15th or 16th week after
conception.
The Law Relating to Abortion

Explanation to S312:
A woman who causes herself to miscarry
is within the ambit of S312
The Law Relating to Abortion
•
Exception to S312:
S 312 does not apply to
 a registered medical practitioner who
terminates a woman’s pregnancy if he:
a) forms an opinion in good faith, that the
continuance of pregnancy would
The Law Relating to Abortion

Exception to S312 (contd):
i) risk the life of the mother, or
ii) causes injury to the mental or physical
health of the mother,
The Law Relating to Abortion

Comments to S132
The opinion of one medical practitioner
formed in good faith that the continued
pregnancy involve risk to the life to the
mother suffices.
The Law Relating to Abortion

PP v Dr Nadason Kanagalingam [1985]
2 MLJ 122
The facts:
The woman had tubal ligation done by the
accused. Later, she was found to be pregnant
and had enlarged varicose veins. The accused
gave her a saline injection, and a foetus was
aborted.
The Law Relating to Abortion

PP v Dr Nadason Kanagalingam
[1985] 2 MLJ 122
The facts (contd):
The accused gave evidence that he performed
the abortion in good faith to save the life of
the woman, who was suffering from enlarged
varicose veins which might cause pulmonary
embolism.
The Law Relating to Abortion
PP v Dr Nadason Kanagalingam
[1985] 2 MLJ 122
Held: Procuring an abortion is a serious matter and
should only be done as a last resort to save
the life of a woman from becoming a mental
wreck.
The Law Relating to Abortion
PP v Dr Nadason Kanagalingam
[1985] 2 MLJ 122
Held: The accused had not given reasonable thought
and had not taken enough steps to examine
the woman further.
The Law Relating to Abortion
PP v Dr Nadason Kanagalingam [1985]
2 MLJ 122
Held: His finding that the woman had enlarged
varicose veins is a result of his mere clinical
examination, as there were no statistics to
show from the cases of pulmonary embolism
how many were caused by varicose veins.
The Law Relating to Abortion
PP v Dr Nadason Kanagalingam
[1985] 2 MLJ 122
Held: Therefore, there was no indication that the
woman’s life was or would be in danger if the
pregnancy was allowed to continue.
The Law Relating to Abortion

Section 314 Penal Code
Whoever causes death to the pregnant
mother by an act done with intent to
cause miscarriage, shall be punished with:
a) imprisonment up to ten years, and
b) liable to fine;
The Law Relating to Abortion

Section 314 Penal Code
If the act is done without the woman’s
consent, shall be punished with:
a) imprisonment up to 20 years
The Law Relating to Abortion
Explanation to Section 314 Penal
Code
It is not essential that the offender
should know that the act is likely to
cause death.
The Law Relating to Abortion

The amount of fine that can be levied
under S312 and S314 Penal Code
S283(1) Criminal Procedure Code
‘ in the absence of any express provision
relating to the fine in such law contained,
the following provisions shall apply-
The Law Relating to Abortion

The amount of fine that can be levied
under S312 and S314 Penal Code
S283(1)(a) Criminal Procedure
Code
where no sum is expressed to which the
fine may extend, the amount to which the
offender is liable is unlimited, but shall not
be excessive;
The Law Relating to Abortion
Section 314 Penal Code
 Mary Shim v PP [1962] 1MLJ 132
The court was satisfied that the accused
procured an abortion by inserting a stick
into the deceased’s womb. The deceased
contracted septicaemia from which she
died of septic abortion.
The Law Relating to Abortion

The Position in India
Abortion in India is legalized by the
Medical Termination of Pregnancy
Act 1971 (came into effect on 1.4.1972)
as a method of curtailing population
growth.
The Law Relating to Abortion

The Position in India
Section 3(2) Medical Termination of
Pregnancy Act 1971
Pregnancies may be terminated by
registered medical practitioners where:
a) length of pregnancy does not
exceed 12 weeks
The Law Relating to Abortion

The Position in India
Section 3(2) Medical Termination
of Pregnancy Act 1971
b) length
of pregnancy exceeds
twelve
weeks
but does not
exceed twenty weeks, if at least
two
registered
medical
practitioners are..
The Law Relating to Abortion
The Position in India
Section 3(2)(b) Medical Termination of
Pregnancy Act 1971
Of opinion, formed in good faith, that,(i) the continuance of the pregnancy would
involve risk to the life of the pregnant
woman or of grave injury to her physical
or mental health ; or

The Law Relating to Abortion

The Position in India
Section 3(2)(b) Medical
Termination of Pregnancy Act 1971
(ii) there is a substantial risk that if the child
were born, it would suffer from such
physical or mental abnormalities as to be
seriously handicapped.
The Law Relating to Abortion

The Position in India
Medical Termination of Pregnancy Act
1971
Niketa Mehta’s case (4.8.2008)
The Bombay High Court refused permission to
abort a 26-week foetus with serious heart
defect, as the doctors were uncertain whether
there was any ‘substantive’ risk that the child
would be seriously handicapped all its life.
The Law Relating to Abortion

The Position in India
Section 3 Medical Termination of
Pregnancy Act 1971
Explanation 1
Where pregnancy is caused by rape, the
anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the
mental health of the pregnant woman.
The Law Relating to Abortion

The Position in India
Section 3 Medical Termination of
Pregnancy Act 1971
Explanation 2
pregnancy occurs as a result of failure of any
device or method used …for the purpose of
limiting the number of children, the anguish
caused by such unwanted pregnancy may be
presumed to constitute grave injury to mental
health.
The Law Relating to Abortion

The Position in India
Comments to Section 3 Medical
Termination of Pregnancy Act 1971
The
number
of
registered
medical
practitioners is relevant only to form the
opinion.
The Law Relating to Abortion

The Position in India
Comments to Section 3 Medical
Termination of Pregnancy Act 1971
Once the opinion has been formed, the actual
termination of pregnancy may be done by one
registered medical practitioner.
The Law Relating to Abortion

The Position in India
Comments to Section 3 Medical
Termination of Pregnancy Act 1971
It is not necessary that more than one
registered medical practitioner should act
together to terminate a pregnancy.
The Law Relating to Abortion

The Position in India
Section 5 Medical Termination of
Pregnancy Act 1971
Pregnancy exceeding 20 weeks may be
terminated even without the opinion of 2
registered medical practitioner where:
The Law Relating to Abortion

The Position in India
Section 5 Medical Termination of
Pregnancy Act 1971 (contd)
a) the registered medical practitioner is of
opinion, formed in good faith,
b) that the termination is immediately
necessary to save the life of the pregnant
woman.
The Law Relating to Abortion
•
The Position in UK
Section 37 Human Fertilization and
Embryology Act
Abortion is legal only up to 24 weeks unless:
a) necessary to save the mother’s life,
b) there are evidence of extreme fetal
abnormality, or
c) there’s grave risk of physical or mental
injury to the mother.
The Law Relating to Abortion
•
The Position in UK
R v Bourne [1939]1 K.B. 687
Held: Doctors could rely on the defence of
necessity, for an act done in good faith in
performing an abortion to avert a grave threat
to the life and health of a pregnant young girl
who was brutally raped.
In Vitro
Fertilization
In Vitro Fertilization

Destruction of Embryo
Issues: i) There are no consensus as to when
human life begins
ii) There are no agreement whether
discarding of embryo is equivalent to
abortion
In Vitro Fertilization

Destruction of Embryo
Guideline of the Malayan Medical
Council on Assisted Reproduction
Clause 4
If couples are separated, divorced or one
of them becoming deceased, the stored
gametes cannot be used and has to be
destroyed
In Vitro Fertilization

Meaning of Gamete
A single male or female reproductive cell
(sperm or egg cell), capable of joining with
a similar single cell of the other sex to
form a zygote
In Vitro Fertilization

Meaning of Gamete
Each gamete contains a single (haploid)
chromosome: the double (diploid)
chromosome of the resulting zygote
contains the genetic information
programming the growth of the new
individual.
In Vitro Fertilization

Selective Fetal Reduction
Guideline of the Malayan Medical
Council on Assisted Reproduction
Clause 10
Where more than 3 fetuses are gestated,
fetal reduction may be considered if:
In Vitro Fertilization

Selective Fetal Reduction
Guideline of the Malayan Medical
Council on Assisted Reproduction
Clause 10 (contd)
a) the prospect of fetal viability is
compromised or
b) the health or life of the mother is
threatened.
In Vitro Fertilization
Prohibited Practices
Guideline of the Malayan Medical
Council on Assisted Reproduction
Clause 15
Research cannot be carried out on human
embryos more that 14 days old or where
primitive streak has appeared, whichever
earlier except with approval of Health
Ministry

The Law Relating
to Euthanasia
The Law Relating to Euthanasia

The Definition of Death
a) Traditional definition
Bennett v Peattie [1925] 57 OLR
233
Permanent cessation of cardiovascular and
respiratory functions
The Law Relating to Euthanasia

The Definition of Death
b)
Section 46 Penal Code:
‘The word "death" denotes the death
of a human being, unless the contrary
appears from the context’
The Penal Code has failed to provide for a
clear definition of ‘death’.
The Law Relating to Euthanasia

The Definition of Death
c)
The development of organ transplant
led to the concept of ‘brain death’.
The concept of ‘brain death’ is important to
facilitate cadaveric organ transplants from
brain dead donors
The Law Relating to Euthanasia

The Definition of Death
d)
Brain Death
A person is recognized as dead when the
function of the brain as a whole,
including the brain stem, is irreversibly
lost.
A person certified to be brain dead is
dead
The Law Relating to Euthanasia

Advance Directives
 Written
instructions regarding the
declarant’s medical care preferences.
 Includes:a) Living will
b) Medical power of Attorney
c) Do Not Resuscitate order
The Law Relating to Euthanasia
Advance Directives
a) Living will

Describes life sustaining treatments
which the declarant wants, in the
event he suffers from terminal illness
or is in permanent vegetative state.
The Law Relating to Euthanasia
Advance Directives
a) Living will
Conditions to be fulfilled for the
Living will to become effective: i) declarant is incapacitated
ii) declarant is suffering from a
terminal illness or is permanently
unconscious
iii) ultimate recovery is hopeless

The Law Relating to Euthanasia
Advance Directives
a) Living will

Conditions to be fulfilled for the
Living will to become effective: Therefore, where
the
declarant
suffers from a heart attack but he does
not have any terminal illness and is not
permanently unconscious,
The Law Relating to Euthanasia
Advance Directives
a) Living will

Conditions to be fulfilled for the
Living will to become effective: The declarant’s ‘Living will’ will not have
any effect and he will still be
resuscitated even if he had a living will
indicating that he does not want life
prolonging procedures
The Law Relating to Euthanasia

Advance Directives
b)
Medical Power of Attorney
Designates an individual to make
medical decisions in the event the
declarant is unable to do so.
The Law Relating to Euthanasia

Advance Directives
c)
Do Not Resuscitate Order
Declarant’s request not to have
cardiopulmonary resuscitation (CPR) if
his heart stops or if he stops breathing.
The Law Relating to Euthanasia
Penal Code does not expressly provide
on the law relating to euthanasia. It
provides for: i) Abetment of suicide
 Section 306 Penal Code
‘abetment of suicide’ is an offence and
punishment can extend up to 10 years
imprisonment and fine
The Law Relating to Euthanasia
i) Abetment of suicide

Section 107(c) Penal Code
Abetment of suicide includes the acts of a
person who intentionally aids, by an act
or illegal omission, the doing of that thing,
The Law Relating to Euthanasia
i) Abetment of suicide

Illustration to Section 107(c)
Abetment can be done by ‘procuring’ or
‘facilitating’
The Law Relating to Euthanasia
ii) Attempt to Commit Suicide
 Section 309 Penal Code
Whoever attempts to commit suicide
shall be punished with imprisonment for a
term up to one year or with a fine or
with both
The Law Relating to Euthanasia
Provisions under the Penal Code
Non brain-dead patients
 Euthanasia may fall under S306 and S309
of the Penal Code, as euthanasia may be
a form of ‘attempted suicide’, or ‘abetted
suicide’
 To this extent, euthanasia is a crime, and it
would seem that the doctors cannot
switch off the ventilator
The Law Relating to Euthanasia

Common Law
Airedale NHS Trust v Bland (1993)
AC 789, Lord Goff at p 865
General Rule:
‘Euthanasia is not lawful at common law’
The Law Relating to Euthanasia

Common Law
Exceptions:
 Court can order for the withdrawal of life
support by exercising its inherent power
to exercise parens patriae jurisdiction, and
if the action is in the patient’s ‘best
interest’
The Law Relating to Euthanasia

i)
What amounts to the patient’s ‘best interest’?
Physical Benefit
Re A (children) (conjoined twins:
surgical separation) (2000) 4 All E.R.
961
The Facts: J and M were conjoined twins.J sustained the
M’s life by circulating oxygenated blood
through a common artery.
The Law Relating to Euthanasia

i)
What amounts to the patient’s ‘best interest’?
Physical Benefit
Re A (children) (conjoined twins:
surgical separation) (2000) 4 All E.R.
961
The Facts: If they were not separated, J’s heart would
eventually fail and both would die. If
separated, J would have a life worthwhile but
M would die.
The Law Relating to Euthanasia

i)
What amounts to the patient’s ‘best interest’?
Physical Benefit
Re A (children) (conjoined twins:
surgical separation) (2000) 4 All E.R.
961
Held: The operation was in the best interest of
each twin, even if it cost the life of M which J
had unnaturally supported. J’s bodily
condition is capable of supporting a chance
of life.
The Law Relating to Euthanasia

i)
What amounts to the patient’s ‘best interest’?
Physical Benefit
Re A (children) (conjoined twins:
surgical separation) (2000) 4 All E.R.
961
Held: M was born without capacity of life. The
operation would enable M die with dignity. To
continue living would only confer pain and
discomfort. She would die because her own
body could not sustain her life, not because
the operation had killed her
The Law Relating to Euthanasia

ii)
What amounts to the patient’s ‘best interest’?
Emotional Benefit
Re Y (adult patient)(transplant: bone
marrow) (1997) Fam. 110, (1997) 35
BMLR 111
The Facts: The defendant was the most suitable donor
for her sister’s a bone marrow transplant.
The Law Relating to Euthanasia
What amounts to the patient’s ‘best
interest’?
ii) Emotional Benefit
Re Y (adult patient)(transplant:
bone marrow) (1997) Fam. 110,
(1997) 35 BMLR 111
The Facts: However, the defendant was mentally
handicapped and is unable to consent
to the operation

The Law Relating to Euthanasia

What amounts to the patient’s ‘best interest’?
ii) Emotional Benefit
Re Y (adult patient)(transplant: bone
marrow) (1997) Fam. 110, (1997) 35
BMLR 111
Held: The operation is in the defendant’s best
interest. It would preserve the life of her
sister and would improve their relationship.
The Law Relating to Euthanasia

What amounts to the patient’s ‘best
interest’?
ii) Emotional Benefit
Re Y (adult patient)(transplant:
bone marrow) (1997) Fam. 110,
(1997) 35 BMLR 111
The
defendant
would
receive
emotional, psychological and social
benefit and suffer minimum detriment.
The Law Relating to Euthanasia
What amounts to the patient’s ‘best
interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland (1993)
AC 789
The Facts: The patient was seriously injured in the
Hillsborough disaster which reduced
him in a persistent vegetative state.

The Law Relating to Euthanasia
What amounts to the patient’s ‘best
interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
The Facts: The hospital applied for a declaration
that it might lawfully discontinue all
life-sustaining treatment including
the termination of ventilation.

The Law Relating to Euthanasia
What amounts to the patient’s ‘best interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: The court granted the declaration to
lawfully discontinue all life-sustaining
treatment.

The Law Relating to Euthanasia
What amounts to the patient’s ‘best interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: The question is not whether it is in the
patient’s best interest that he should die.
It is whether it is in his best interest that his
life should prolonged by artificial means

The Law Relating to Euthanasia
What amounts to the patient’s ‘best
interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: The withdrawal of treatment is
regarded as a pure omission. There
was no duty to treat because it was
not in the patient’s best interest to
continue the life-prolonging treatment.

The Law Relating to Euthanasia
What amounts to the patient’s ‘best interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: There was no prospect of the treatment
improving the patient’s condition, as he was
totally unconscious.The futility of
treatment justifies its termination

The Law Relating to Euthanasia
What amounts to the patient’s ‘best interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: The law distinguish between cases where
a doctor decides not to provide lifeprolonging treatment and cases where he
decides to actively end his patient’s life by
administering a lethal drug.

The Law Relating to Euthanasia
What amounts to the patient’s ‘best interest’?
iii) Futility of Treatment
Airedale NHS Trust v Bland
(1993) AC 789
Held: Discontinuance
of
life
support
is
consistent with a doctor’s duty of care.
However, a doctor’s duty of care does
not include the duty to administer lethal
injections to put his patient out of his
agony.

The Law Relating
to
Organ Transplant
The Law Relating to Organ
Transplant

Organs for transplantation can come
from:
i) a living person (living donor) or
ii) a dead person (cadaveric donor)
The Law Relating to Organ
Transplant

Living Donor
 There
is presently no legislation in
Malaysia governing
the removal of
organs from living donors.
The Law Relating to Organ
Transplant
Living Donor
 The guide to the removal of organs
from living donors are currently
provided under the ‘Guidelines for
Organ Transplantation from Living
Donor’ issued by the Malaysian
Medical
Council
006/2006
(hereinafter referred to as ‘the
Guidelines’)

The Law Relating to Organ
Transplant

Living donor
Clauses 6.1 (a) and (f) of the
Guidelines provides that an individual
willing to donate organ must: -

be an adult legally able to give
consent
have not receive any coercion

The Law Relating to Organ
Transplant

Living donor
Clause 6.6 of the Guidelines provides
that: ‘No financial transactions are permitted
except payment for expenses incurred
by the donor, payable to a third party.
The Law Relating to Organ
Transplant

Living donor
Therefore, it is presumed that live
donations are legally permissible if:
a) valid consent is obtained from the
donor
b) no financial transactions are
involved
The Law Relating to Organ
Transplant

Living donor
The Position in Singapore.
Section 14(1) Human Organ Transplant
Act (1987) prohibits the supply of any human
organs or blood for any monetary transaction,
and renders such transaction as void.
The Law Relating to Organ
Transplant

Living donor
The Position in Singapore.
Section 14(2) Human Organ Transplant
Act (1987) provides that a person who
enters into such contracts or arrangement is
guilty of an offence and shall be liable to a fine
not exceeding $10,000 or to imprisonment
not exceeding 12 months or both.
The Law Relating to Organ
Transplant

Living donor
The Position in Singapore.
a) PP v Wang Chin Sing [2008]
SGDC 268
b) PP v Tang Wee Sung [2008]
SGDC 262
The Law Relating to Organ
Transplant
a)PP v Wang Chin Sing [2008] SGDC 268
b)PP v Tang Wee Sung [2008] SGDC 262
The Facts: Tang required a kidney transplant and
engaged Wang to source a donor.
Sulaiman was approached and he agreed
to donate his kidney for a fee.
The Law Relating to Organ
Transplant
a)PP v Wang Chin Sing [2008] SGDC 268
b)PP v Tang Wee Sung [2008] SGDC 262
Held: a)Wang was sentenced to imprisonment
for 14 months on two counts of
entering into arrangements for the
supply of kidney contrary to S14(2) read
with S14(1) Human Organ Transplant
Act
The Law Relating to Organ
Transplant
a)PP v Wang Chin Sing [2008] SGDC 268
b)PP v Tang Wee Sung [2008] SGDC 262
Held: b)Tang was fined $7000 in default of 7
weeks’ imprisonment
The Law Relating to Organ
Transplant

The Position in Singapore.
Proposed changes:Foreigners who donate their organs in
Singapore may be compensated.
Money should not be an ‘inducement’ for
organ donations and those involved
would have to adhere to strict ethical
standards.
The Law Relating to Organ
Transplant

The Position in Singapore.
Health Minister Khaw Boon Wan:
‘Anything more than S$5,000 will require
more justification. Anything more than
S$10,000 is likely to be deemed
inappropraite
The Law Relating to Organ
Transplant
Effect of the proposed changes:Donors in Singapore and from overseas
can be reimbursed for medical costs if
they donated their organs in Singapore
The Law Relating to Organ
Transplant

Cadaveric donor
The Position in Malaysia
Transplantation of cadaveric tissues are
governed by the Human Tissues Act
1974 which is based on the Human
Tissues Act 1961 in England
The Law Relating to Organ
Transplant

Cadaveric donor
Section 2 of the Human Tissues Act
1974 permits the removal of cadaveric
tissues under two circumstances:
i) at the express request of the
donor
given at any time in
writing or stated
orally during
the donor’s last illness
in
the
presence of two witnesses
The Law Relating to Organ
Transplant

Cadaveric donor
Section 2 of the Human Tissues Act
1974 permits the removal of cadaveric
tissues under two circumstances:
ii) the person lawfully in possession
of the deceased’s body may
authorize the removal of any part
from the body if the deceased had
no objection and the deceased’s
next- of-kin consents
The Law Relating to Organ
Transplant

Cadaveric donor
The Human Tissues Act 1974 does
not ban the sale or purchase of organs
The End
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