Being Told to Have an Abortion by Your Future In-Laws, this is the Regulation

PERTANYAAN

Is there a law for people who order other people to have an abortion and which article is imposed on them? I apologize in advance if I ask this as I have experienced it myself. My future mother-in-law told me to have an abortion. In fact, it is clear that the child I am carrying is the child of her son. His mother openly asked me to have an abortion. And also, her son used to treat me violently. Can I report this case?

INTISARI JAWABAN

Abortion is the act of aborting a pregnancy. Under Indonesian positive law, abortion is prohibited except for justified reasons as regulated under Law 36/2009.

So, what is the law for people who order an abortion?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Disuruh Aborsi oleh Calon Mertua, Ini Hukumnya which was written by Wang Tao Bicton Manullang, S.H. from ILUMNI FH UNPAR, and was published on Monday, 20 March 2023.

This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Law on Abortion in Indonesia

Prior to answering your question, let us tell you what an abortion is. Abortion or aborsi according to the official dictionary of the Indonesian language (Kamus Besar Bahasa Indonesia/ “KBBI”) is a termination of pregnancy. In Indonesia, the legal basis for abortion is set out in Article 75 section (1) Law 36/2009, namely, anyone is prohibited from having an abortion.

However, the prohibition may be exempted based on two conditions:[1]

1. an indication of a medical emergency which is detected at an early stage of pregnancy, either which threatens the life of the mother and/or the fetus, who suffers from a severe genetic disease and/or birth defect, or which cannot be repaired and thus makes it difficult for the infant to live outside the womb; or
2. pregnancy due to rape which may cause psychological trauma for the victim of rape

Abortion can only be performed after going through counseling and/or advice before the procedure and is ended with counseling after the procedure which is conducted by a competent and authorized counselor.[2]

Furthermore, abortion may only be performed followed by these requirements:[3]

1. before the age of 6 (six) weeks of pregnancy calculated from the first day of the last menstruation, except in the event of medical emergencies;
2. by health workers who have the skills and authority to have a certificate stipulated by the minister;
3. with the consent of the pregnant woman concerned;
4. with the husband's permission, except for a victim of rape; and
5. health service providers who meet the requirements stipulated by the Minister.

So, what are the risks of abortion if it is still performed? In addition to the health risks, there are legal risks involved in having an illegal abortion. Article 194 Law 36/2009 determines the criminal sanction of abortion which is not in accordance with the provisions, namely:

Any person who intentionally performs an abortion not in accordance with the provisions as referred to in Article 75 paragraph (2) shall be sentenced to a maximum imprisonment of 10 (ten) years and a maximum fine of Rp1,000,000,000.00 (one billion rupiah).

In addition to Law 36/2009, abortion is also regulated under the Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force 3 years from the date of its promulgation in 2026. [4] The provisions are as follows.

Criminal Code	Law 1/2023
Article 346 Criminal Code Any woman who with deliberate intent causes or lets another cause the drifting off or the death of the fruit of her womb, shall be punished by a maximum imprisonment of four years.	Article 463 Law 1/2023 Any woman who has an abortion shall be sentenced with imprisonment for a maximum of 4 (four) years. The provision as referred to in paragraph (1) does not apply in the event that women are the Victims of Crime of Rape or other Crimes of sexual violence that cause pregnancy whose gestational age does not exceed 14 (fourteen) weeks or has indication of medical emergency
Article 347 Criminal Code Any person who with deliberate intent causes the drifting off or the death of the fruit of the womb of a woman without her consent shall be punished with a maximum imprisonment of twelve years. If the fact results in the death of the woman, he shall be punished by a maximum imprisonment of fifteen years. Article 348 Criminal Code Any person who with deliberate intent causes the drifting off or the death of the fruit of the womb of a woman with her consent, shall be punished by a maximum imprisonment of five years and six months. If the fact results in the death of the woman, he shall be punished by a maximum imprisonment of seven years.	Article 464 Law 1/2023 Any Person who performs an abortion on a woman: with the consent of the woman, shall be sentenced with imprisonment for a maximum of 5 (five) years; or without the consent of the woman, shall be sentenced with imprisonment for a maximum of 12 (twelve) years.   If the act as referred to in paragraph (1) letter a results in the death of the woman, shall be sentenced with imprisonment for a maximum of 8 (eight) years. If the act as referred to in paragraph (1) letter b results in the death of the woman, shall be sentenced with imprisonment for a maximum of 15 (fifteen) years.
Article 349 Criminal Code If a physician, midwife or pharmacist is an accomplice to the crime in article 846, or is guilty of or is an accomplice to one of the crimes described in articles 847 and 848, the sentences laid down in said articles may be enhanced with one third, and be may be deprived of the exercise of the profession in which he commits the crime.	Article 465 Law 1/2023 Physicians, midwives, paramedics, or pharmacists who commit the Crime as referred to in Article 464 may have their criminal sentence increased by 1/3 (one-third). Physicians, midwives, paramedics, or pharmacists who commit the Crime as referred to in paragraph (1) may be sentenced with additional sentence in the form of revocation of rights as referred to in Article 86 letter a and letter f. Physicians, midwives, paramedics, or pharmacists who perform abortions due to indications of medical emergencies or to the Victims of Crime of Rape or other Crimes of sexual violence that lead to pregnancy as referred to in Article 463 paragraph (2) shall not be sentenced.

The Law on Telling Other People to Have an Abortion

Thus, what is the law if your future in-laws tell you to have an abortion? Article 55 section (1) Criminal Code emphasizes that the criminal is convicted as the perpetrator of the criminal offense (dader):

1. those who perpetrate, cause others to perpetrate, or take a direct part in the execution of the act;
2. those who intentionally provoke the execution of the act by gifts, promises, abuse of power or of respect, force, threat or deception or by providing an opportunity, means or information.

It is also regulated under Article 20 Law 1/2023, that every person is convicted as a perpetrator of a criminal offense if:

1. he/she commits a crime him/herself;
2. commits a crime by means of a tool or ordering other persons who cannot be accounted for;
3. participates in committing a crime; or
4. mobilizes other persons to commit crimes by giving or promising something, abusing their power or dignity, committing violence, using threats of violence, committing misdirection, or by providing opportunities, facilities, or information.

In the event of ordering, the person who is ordered to commit a crime shall not be sentenced because there is no element of fault.[5]

We did not receive any information on whether the abortion you described was performed or not. If the abortion did occur, then your future mother-in-law may be subject to imprisonment based on Article 194 Law 36/2009 jo. Article 55 section (1) Criminal Code. This is because your future mother-in-law has "ordered" you to have an illegal abortion.

Dating Violence

In relation to your question regarding the violence perpetrated by your boyfriend, we have not received any information on the specific forms of violence that were committed. We assume that the violence committed by your boyfriend is equivalent to abuse.

As for the law on the practice of ill-treatment or abuse, you can read about it in the article entitled Actions that are Considered Persecutions. Furthermore, you may report said behavior by making a Police report for the alleged abuse by your boyfriend. In order to report a criminal act to the police, you may refer to Do You Want to Report a Crime to the Police? These are the Procedures

Case Study

An example of a case of ordering an abortion can be found in the Decision of the District Court of Kupang Number 242/Pid.Sus/2015/PN.Kpg where the judge used Article 194 Law 36/2009 jo. Article 55 section (1) of the 1st Criminal Code in deciding a defendant who is proven legally and convincingly guilty ordered an abortion. For his actions, the defendant was sentenced to imprisonment for 3 years and a fine of IDR 5 million, on the condition that if the fine is not paid, it would be replaced with a term of imprisonment for 3 months (p. 42).

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These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 36 of 2009 on Health;
3. Law Number 1 of 2023 on the Criminal Code.

Court Decision:

Decision of the District Court of Kupang Number 242/Pid.Sus/2015/PN.Kpg.

Reference:

Aborsi, accessed on Monday, 20 March 2023, at 14.01 West Indonesian Time (zone).

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[1] Article 75 section (2) Law Number 36 of 2009 on Health (“Law 36/2009”).

[2] Article 75 section (4) Law 36/2009.

[3] Article 76 Law 36/2009.

[4] Article 624 Law Number 1 of 2023 on the Criminal Code (“Law 1/2023”).

[5] Elucidation to Article 20 letter b Law 1/2023.