“CRIMINAL ABORTION IN THE PERSPECTIVE OF HEALTH LAW AND PP NO. 61 TAHUN 2014”

“CRIMINAL ABORTION IN THE PERSPECTIVE OF HEALTH LAW

 AND PP NO. 61 TAHUN 2014”

By

Sagung Putri M.E Purwani

The debate about abortion in Indonesia lately has been increasingly crowded, because it was triggered by various events that shook the joints of human life. The life that is given to every human being is a human right that can only be revoked by the giver of life. Talking about abortion, of course we talk about human life because abortion is closely related to women and fetuses in the womb of women.

Abortion is always the subject of discussion, both in formal and informal forums involving the fields of medicine, law and other scientific disciplines. Abortion is a social phenomenon that is increasingly apprehensive. The concern is not without reason, because so far the behavior of abortion has a lot of negative effects both for themselves and the wider community. This is because abortion involves the moral and legal norms of a nation's life coupled with the endless needs of human life and of course is very diverse.

Abortion is an abortion, which is meant by the act of abortion is doing any form and way to the womb of a woman that causes the birth of a baby or fetus from the woman's womb before the time is born according to nature. This forced act of giving birth to a baby or fetus is often called abortion. The law in force in Indonesia the right of abortion is legally justified if it is carried out due to reasons or medical considerations or medical emergencies. Medical personnel have the right to have an abortion if and media or emergency media considerations are taken to save the lives of pregnant women. In unwanted pregnancies, the most common abortion is Abortion of Provocatus Criminalis for several reasons, such as; Pregnancy out of wedlock, economic burden problems, mothers themselves do not want to have more children due to incest, health reasons and so on.

Abortion is also often done by women who are victims of rape, the reason for the rape victims is to have children who are raped add to their inner pain, because the child will remember the rape events they experienced. For those who do not agree to have an abortion for rape victims, they believe that everyone has the right to live, the fetus in the womb of women due to rape is a creation of God who has the right to enjoy life. For those who agree that abortion can be performed for rape victims, the pregnancy arises not from the wishes of the victim so that it can reduce the suffering of the victim both psychologically and socially, so that the rape victim is given the right to be able to have an abortion.

Regulations regarding abortion in Indonesia have been regulated in statutory regulations, namely the Criminal Code, especially in Article 346, Article 347, Article 348, and Article 349, and Law Number 36 Year 2009 Concerning Health (Health Act) especially Article 75, Article 76, and Article 77, and Government Regulation Number 61 of 2014 concerning Reproductive Health in particular Article 31 to Article 37.

Under the provisions of the Criminal Code there are two forms of acts on abortion namely the act of abortion and the act of killing the uterus. According to the Criminal Code, every act of abortion with any motives, indications and methods in any gestational age is a criminal offense. The crime of abortion is included in Chapter XII of Book II of the Criminal Code concerning crimes against lives, namely Article 346, Article 347, Article 348, and 349 of the Criminal Code.

The existence of Article 346 of the Criminal Code has elements of the article namely that the abortionist in question is a woman who intentionally had an abortion or a woman who tells someone else to do that. The article explains about the perpetrators, namely a woman or other person, in this case, if the midwife and / or doctor is asked to do so, then the criminal sanctions imposed on him are threatened with imprisonment for a maximum of 4 (four) years. If it is related to the above mentioned profession, that doctors and / or midwives are not as sole actors. The definition of medical action carried out by someone whether by a woman who is the mother and / or medical personnel is a criminal act based on the rules in Article 346 of the Criminal Code.

In contrast to the Criminal Code which does not justify the act of abortion, the Health Act provides protection for women perpetrators of provocatus abortion regulated in Article 75 paragraph (2) of the Health Act. The provision of Article 75 paragraph (2) letter b is a form of legal exemption for women perpetrators of provocatus abortion, namely by justifying the existence of provocatus abortion against women victims of rape.

Moving on to criminal provisions or criminal sanctions that are threatened by abortionists. The provisions of Article 346-348 of the Criminal Code, the lowest sanctions are in Article 346 of the Criminal Code, namely the maximum penalty of imprisonment of 4 (four) years and the highest threat is in the provisions of Article 347 of the Criminal Code with the maximum penalty of imprisonment of 12 (twelve) years . If it is then compared with criminal sanctions regulated by the Health Act, namely Article 194 of the Health Act is threatened with a maximum imprisonment of 10 (ten) years and a maximum fine of Rp 1,000,000,000 (one billion rupiah). Based on this comparison it can be concluded that there are differences in relation to criminal sanctions contained in these two laws and regulations between lex specialist derogat legi generalist.

As the executor of several articles contained in the Health Act, the government has now issued Government Regulation of the Republic of Indonesia Number 61 of 2014 concerning Reproductive Health (PP Reproductive Health). This RH Regulation arises with the aim of implementing the provisions of several articles, namely Article 74 paragraph (3) concerning reproduction with assistance, Article 75 paragraph (4) relating to abortion, Article 126 paragraph (4) concerning maternal, infant and child health, and Article 127 paragraph (2) concerning pregnancy efforts outside the natural way of the Health Act

Reproductive Health PP arises with the aim to regulate the Arrangement of Reproductive Health as outlined in the form of Government Regulations. Reproductive Health PP does not have criminal rules or criminal sanctions in the provisions of the contents of the articles. Only regulates the responsibilities of the government and local government related to public reproductive health, regarding maternal health services, indications of medical emergencies and rape as an exception to the prohibition of abortion, reproduction with assistance, funding and in the field of reproductive health development and supervision.

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