Regulation of Abortion and Distribution of Contraceptives in the Context of Indonesia's Human Rights Obligations

Nqobizwe Mvelo Ngema ()
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Nqobizwe Mvelo Ngema: Law Department, Faculty of Commerce, Administration and Law, University of Zululand, South Africa.

Perspectives of Law and Public Administration, 2023, vol. 12, issue 4, 582-589

Abstract: The information about the usage of contraceptives and how to abort is something that is highly restricted to legally married couples. Article 408 restrict the sharing of information about the use of contraceptive and abortion methods because of the general belief that if such information is disseminated it would contribute to the moral decay of the society. It comes as no surprise that article 409 provides for a jail term of up to six months to anyone who violates the latter mentioned article. The parliament of Indonesia promulgated the new Penal Code in December 2022. However, the new Code is also riddled with many downsides. Article 411 of the Code criminalizes any sexual intercourse outside the confines of a lawful marriage (zina) and anyone who practice sexual intercourse while not yet legally married is guilty of a criminal offence. This shows beyond any doubt that the normative system of Indonesia is dominated by Islamic principles because Islamic law forbids any form of extra-marital sexual intercourse and permits child marriages to protect the family honor and avoid the shame of getting pregnant outside marriage. Living together as husband and wife while not yet married to each other is forbidden in terms of article 412 of the new Criminal Code. Any woman who intentionally abort her child can be sentenced up to four years behind the bars except where such woman is a victim of rape or sexual assault. According to article 463 and 464 of the new Criminal Code, anyone who assists a pregnant woman with an abortion can be sentenced for up to five years in prison. The disadvantage of the latter mentioned articles is that they will reduce free exchange of important information about health by parents, teachers, the media and amongst the community members. This is contrary to the rights of girls and women that are protected by international law because under international law, girls and women have a right to receive sex education and to protect their sexual and reproductive health rights and autonomy to make their own individual choices about when to have children. As a result of this, numerous rights of girls and women can be affected in the process such as the right to education, can contribute to the prevalence of child marriages and this may also endanger lives and health of girls and women.

Keywords: abortion; contraceptive distribution; Human rights obligations for Indonesia. (search for similar items in EconPapers)
JEL-codes: K36 K38 (search for similar items in EconPapers)
Date: 2023
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