IS A RIGHT TO ABORTION PROTECTIVE OF WOMEN’S REPRODUCTIVE HEALTH? Exploring a Human Rights Dynamic of Abortion Law Reform in Indonesia Name : Kadek Marniari Supervisor: Shaheen Sardar Ali Deadline for submission: May/30/2008 Number of words: 19,948 (max. 20.000) 19.06.2008 ______________________________________________________________________________ UNIVERSITY OF OSLO Faculty of Law Content 1 INTRODUCTION 1 1.1 Background 1 1.2 Research question 4 1.3 Hypothesis and expected result 4 1.4 Scope and methodology 5 1.5 Demarcation and thesis structure 6 2 THE INDONESIAN CONTEXT 7 2.1 Legal pluralism: the existence of different legal source in Indonesia 7 2.2 Women in Indonesian society 11 2.2.1 Notion of gender equality 12 2.2.2 Women’s status and its stereotype in Indonesia 15 2.3 Abortion 24 2.3.1 History and politics of abortion 25 2.3.2 Unsafe abortion and its consequences 27 2.3.3 Abortion and its controversy 28 3 LEGAL FRAMEWORK 34 3.1 National Legal Framework 34 3.1.1 Abortion Law and Its Controversy 35 3.1.2 The Political Dynamics of Abortion Law Reform 38 3.2 Abortion and Reproductive Health 41 I 3.3 International Human Rights Legal Framework 42 3.3.1 Right to Life and Fetus Protection 43 3.3.2 UN International Conferences in Reproductive Health 47 3.4 Regional Legal Framework 48 3.4.1 The Inter-American Human Rights 48 3.4.2 African Charter on Human and People’s Rights 50 3.4.3 The European Convention for the Protection of Human Rights and Fundamental Freedoms 50 4 CONCLUSION 53 REFERENCES 58 II Abbreviation BPS : Badan Pusat Statistik (Bureau Central Statistic of Indonesia) CEDAW : Convention on the Elimination of all forms of Discrimination Against Women DPR : Dewan Perwakilan Rakyat (Indonesia Legislative Assembly) ECHR : European Convention for the Protection of Human Rights ICCPR : International Convention on Civil and Political Rights Kowani : Kongres Wanita Indonesia (Indonesian Women Congress) KUHP : Kitab Undang-Undang Hukum Pidana (Indonesia Criminal Code) MUI : Majelis Ulama Indonesia (Indonesia Council of Ulama) NGO : Non Governmental Organization NU : Nahdlatul Ulama PKK : Pembinaan Kesejahteraan Keluarga (Family Welfare Guidance) Propenas : Program Pembangunan Nasional (National Development Programs) UDHR : Universal Declaration of Human Rights WHO : World Health Organization III 1 INTRODUCTION 1.1 Background Abortion, whether legal or illegal, is always a complicated dilemma. The principal problem lies in the moral and religious controversy over the beginning of life, including the right of the unborn child.1 The question of when human life begins has been considered throughout history and in diverse cultural contexts. But the answer varies all the time as it is deeply integrated with the beliefs, values and social constructs of the community or individual concerned. Little agreement exists on the juridical status of the fetus or the embryo under international law resulting in more deference to local laws informed by local values but within limits set out by human rights treaties. These limits afford the fetus some protection as well as the mother, leaving open the question of how to balance the rights of each.2 In most developing countries, induced abortion remains an illegal practice. Yet these happen where women choose clandestine abortion to end their unwanted pregnancy.3 The practice of clandestine abortion is frequently unsafe, involving health risks as well as economic suffering for the woman and her family because of the high price paid for the service. Restrictive legislation penalizing both the woman who seeks an abortion and the practitioner, who offers abortion services, can be the key determinant of the unsafe abortion. In addition to legal strictures on abortion, religious influence has placed abortion outside the realm of what is “morally” correct or acceptable in the collective consciousness of many societies.4 1 Smith (2005), p. 207. 2 Abortion and Protection of the Human Fetus (1987), p. 14. 3 WHO estimates approximately 42 million pregnancies are voluntarily terminated every year—22 million within national legal system and 20 million outside it. This later case that abortion mostly performed by unskilled provider and or unhygienic conditions. Unsafe Abortion: Global and Regional Estimates of the incidence of unsafe abortion and associated mortality in 2003 (2007), p. 1. 4 Scott (1989), p. 319. 1 Indonesia is a case in point that has, to a certain extent, conservative and restrictive laws on abortion. If we trace the abortion regulations in Indonesia, it can be seen that the status of abortion has long been a matter of debate. Modeled on the conservative criminal code of Dutch colonial government, Indonesian Criminal Code (KUHP, Kitab Undang-Undang Hukum Pidana) contains a series of articles that define the practice of abortion as a crime against morality and a crime against life. Chapter 14 article 299 of the KUHP addresses the morality issue forbidding the provision of abortion medicines and services. If the person providing the service was a doctor, midwife, or paramedic, not only was the punishment harsher, they could even lose their license to practice.5 Specification of abortion as a crime against life is contained in Chapter 19 Articles 346, 347, 348 and 349. These articles specify four years’ imprisonment for a woman who aborts her own pregnancies (Article 346); 12 years for someone who forces a women to have an abortion, or 15 years if the abortion results in the woman’s death (Article 347); and five years for someone who performs an abortion at the woman’s request, seven years if the procedure results in the woman’s death (Article 348). These punishments were increased by a third if the person convicted of carrying out an illegal procedure was a doctor, midwife or paramedic (Article 349).6 The law, however, did not define clearly the illegal abortion in terms of gestational stage or procedure, resulting in the reluctance of physicians to offer abortion facilities openly to public. In the 1970s Chief Justice shared his opinion relating to this matter providing more space for abortion. In his private meeting with some doctors that came seek his advice regarding the practice, he assured them that “procedures [of abortion] could not be regarded as illegal if they were carried out within the framework of normal medical practices, by specialists and doctors who had received standard training and used techniques that were professionally approved.”7 This support encouraged some specialists to offer abortion facilities publicly, even though it was done cautiously as the ‘permit’ was only based on informal communication. Many attempts tried to promote 5 Hull (1993), p. 242-243. 6 Supra note p. 243. 7 Supra note. 2 an abortion law thereafter, but it was not until 1992 that abortion law was finally made part of the Health Law No. 23/1992. Despite restrictive laws on abortion, termination of pregnancy has been a traditional practice among the people for a long time. Most women who want to terminate a pregnancy end up doing so in secrecy. They went to a traditional practitioner (dukun), regardless of the associated risk of infection arising from unsanitary conditions and practices and the possibility of serious complications arising from an incomplete abortion.8 Every year an estimated 2 million women choose to end their unwanted pregnancy through an abortion in Indonesia.9 The widespread practice of unsafe abortion became a matter of public concern in Indonesia and several women’s organizations tried to persuade the handling of this issue as part of the basic women’s reproductive health. The government has most of the time been hesitant to become involved in such contentious issue or respond to public concern in order to avoid confronting, amongst others, religious groups on the subject. Increasing politicization of Islam after the political reformation in 1998 has heightened Islamic fundamentalist movement in the political realm.10 This complicated the situation more as the adat and religious values in Indonesia place the practice of abortion as disorderly behavior within the realm of customary and religious values in Indonesia. Over the last couple of decades, various world conferences on human rights, especially on women and population and development, has amplified the discourse regarding the promotion of abortion as a method of family planning and recommended that countries review laws containing punitive measures against women who have undergone illegal abortions. Though not all states accept the notion of using abortion as a method of family planning, all governments and relevant intergovernmental and non-governmental organizations are urged to strengthen their commitment to women's health. It is 8 Abortion policies: a global review (2003). 9 Research carried out in 10 big cities and 6 districts (kabupaten) in Indonesia held by Center for Health Research University of Indonesia (CHRUI), 2001. In: Utomo (2005), p. 111. 10 Sciortino (1996), p. 88. 3 recommended that all states pay attention to the health impact of unsafe abortion as a major public health concern and to reduce recourse to abortion through expanded and improved family planning services. This development has created discourse of an emerging i.e., a right to abortion. 1.2 Research question Based on the background presented above, this research attempts to provide elaboration of the dynamics of human rights at play behind the abortion law reform in Indonesia. Some of the sub-questions explored in the thesis will include: 1. How should abortion be regulated in view of the multiple norms and pluralism of laws informing women’s right within the Indonesia society to reflect this mixture? How might this address competing claims that international human rights standards hold for the unborn child’s right to life and pregnant women’s rights for reproductive health. 2. How might justification for restrictive abortion regulation relating closely to the culture, public morality and religious value in the society is developed. How might this justification challenge national law to apply such restrictive regulation of abortion practices in a way that accommodates public moral and religious discourse in the society, yet without violating any international human rights standard? How proportionate ought such a law to be? 1.3 Hypothesis and expected result The study will be conducted according to hypothesis: 1. That in Indonesia, adat, religious values and state ideology plays a part in the sub- ordination of women in society on the basis of the close link between her reproductive role and her status as wife and mother. 2. That there is an emerging international public discourse connecting the issue of abortion to women’s reproductive health through what has been described as a “women-centered” approach. 3. That there is need for a substantial commitment to legal and structural change at the national level in order for the law to represent the reality faced by women in relation to their reproductive health. 4 It is hoped that by the end of my research I would develop some recommendations for improvement of national policy related to women’s reproductive health in Indonesia, and how related international human rights law may be adapted within the culture, tradition, religious, and state ideology in Indonesia. Further that the proposed national policy would be able to accommodate the values and interest of the community, not only internationally but also at the national and local level. 1.4 Scope and methodology The scope of my thesis will be the practice of abortion and the dilemma faced by women undergoing abortion in Indonesia in view of the restrictive abortion law and existence of other source of law affecting women’s value in religious and adat (customary law). It will be an interdisciplinary research using the descriptive method to explain the background of the problem. Jurisprudence in international and regional human rights systems will be used as a standard guideline for the implementation rule of law in national legal system. Hence, the international law will set an obligation that the national government has to comply with. However, the existence of more than one body of law or legal pluralism will be very important as a tool for analysis to evaluate the effectiveness of positive law on the subject. Most of the research will be based on a literature review whereas data related to the case study will be collected and analyzed from the previous relevant research and international organization publication as well as state reports. Even though this is not a comparative research, case-law will be referred to, in order to provide a broad idea of jurisprudence relating to this matter. As my hypothesis stands on the vague regulation of Health Law about abortion, and also the lack of protection for women’s reproductive health, therefore analysis of the law content will be explored by assess its conformity with the international and regional standard. Through a process of collecting supporting evidence based on actual conditions of women on the ground and need assessment within the society, I hope to be able to contribute in offering some recommendations for the amendment process of the existing law. 5 1.5 Demarcation and thesis structure The focus of this thesis will be the exploration of a human rights perspective on abortion law reform in Indonesia. Since I will be using mainly secondary sources in my literature research, I will try to supplement this by gathering data from some primary resources, including Indonesia’s report to the CEDAW Committee, from reports and documents of relevant international organizations as well as previously undertaken related research undertaken in Indonesia. Chapterwise breakdown of the thesis is as follows: Chapter 1 : Introduction Chapter 2 : The Indonesian Context Chapter 3 : Legal Framework Chapter 4 : Conclusion 6