JOURNAL LA SOCIALE
VOL. 02, ISSUE 01 (040-047), 2021
DOI:10.37899/journal-la-sociale.v2i1.305

Legal Review of Medical Emergencies Arising Due to Failure of Abortion
Rizky Nurlailatul Wachidah

Magister of Law, University of Hang Tuah, Indonesia
*Corresponding Author: Rizky Nurlailatul Wachidah
Email: rizkynurlailatul@yahoo.com
Article Info
Article history:
Received 18 January 2021
Received in revised form 9
February 2021
Accepted 24 February 2021
Keywords:
Failure
Abortion
Pregnancy
Medical Emergencies
Doctor

Abstract
The purpose of this article is to investigate the legal responses to
botched abortions. the main characteristics of this style of study are
normative juridical, with a combination of a philosophical framework
and legislation Following the outcome of the abortion attempt, Article
53 of the Criminal Code was violated, along with those who assisted in
the procedure and those who were victimized. Should an abortion result
in the baby's death under article 346, 347, 348, and 349 of the Criminal
Code Criminals may commit the crimes individually or in tandem.
Hence, they are justly prosecuted, so that they can be designated as
criminals or assistants. Article 50 was developed in response to failures
by the abortion business; and it can't be penalized unless done in
compliance with technical and organizational quality procedures. In
general, you do not need a permit to use emergency measures. This does
not extend to abortions carried out on the basis of medical emergencies
except during counselling prior to and during the act of abortion in
compliance with Article 75 of Law No. 36 of 2009.

Introduction
The legal status of abortion is an important indicator of women's ability to enjoy their
reproductive rights. Legal restrictions on abortion often lead to high rates of illegal and unsafe
abortion, and there is a link between unsafe abortion and maternal mortality. The Health Law
(hereinafter abbreviated as UUK) and Government Regulations (hereinafter abbreviated as
GR) also allow abortion because there are indications of medical emergencies detected from
an early age in pregnancy, both those that threaten the life of the mother and/or the fetus with
birth defects making it difficult to live outside the womb.
Efforts to prevent unsafe abortion from occurring are very important if Indonesia wants to
achieve the fifth goal of the Millennium Development Goal (hereinafter abbreviated as MDGs)
to reduce the Maternal Mortality Rate (hereinafter abbreviated to MMR) to 102 per 100,000
live births by 2015.
According to the Ministry of Health of the Republic of Indonesia in 2004, the causes of high
maternal and infant mortality due to complications of pregnancy and childbirth are bleeding
45.2%, hypertension (preeclampsia and eclampsia) 12.9%, abortion 11.1%, postpartum sepsis
9.6 %, prolonged labor 6.5%, anemia 1.6%, and 14.1% indirect cause of death. In Indonesia,
abortion is the fifth leading cause of maternal death after bleeding 28%, eclampsia 24%,
infection 11%, and complications during the puerperium 8%.
It is estimated that 4.7% - 13.2% of maternal deaths are attributed to unsafe abortion and each
year around 7 million women are admitted to hospitals in developing countries due to unsafe
abortion.
Medical abortion is the discharge of the product of conception before the fetus can live outside
the womb, namely before 20 weeks and/or the fetus weighs less than 500 grams. In the medical
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approach, abortion consists of two types, namely spontaneous abortion (abortion spontaneous)
and abortion on purpose (abortion provocateurs). Abortion provocateurs are the termination or
removal of the pregnancy results from the uterus prematurely. So far, the problem of abortion
is generally considered by some people as a criminal act. However, in the positive law of
Indonesia, abortion in certain cases is justified if it is a provocateur medicinalis abortion.
Meanwhile, generalized abortion into a criminal act is better known as abortion provocateurs
criminals.
Abortion and unwanted pregnancy are neglected problems in many developing countries,
including Indonesia. As health workers who are integrated into the community, midwives are
often visited by women with this problem. The causes of abortion and unwanted pregnancy
include ignorance of their reproductive system, victims of rape, lack of knowledge about
reproductive health, and contraceptive failure.
In Indonesia, abortion is regulated by several types of laws and regulations. Previously, the act
of abortion was regulated in Article 15 of Law Number 23 of 1992 concerning Health which
was later replaced by Law Number 36 of 2009 concerning Health, namely in Article 75.
The provisions in the KUHP are based on the idea that a child who is still in the womb is a
legal subject so that he has the right to legal protection. Also, when viewed from the human
rights aspect, everyone has the right to live and defend his life, so that abortion can qualify as
an act that violates human rights. In other words, some thoughts prioritize children's rights to
be guarded and protected. Therefore, in the Criminal Code, abortion qualifies as a crime against
life.
Methods
This study using a normative juridical research type with a conceptual approach and a statutory
approach. Conceptual approach is defined as a methodology wherein this article is conducted
by observing and analysing already present information on a given topic. A statutory approach
is used by learning all the law regulations related to abortion.
Results and Discussion
Definition of Abortion.
The word abortion comes from the Latin abortion which means miscarriage. Abortion is
defined as the spontaneous or induced termination of a pregnancy before the baby can live his
life. The National Center for Health Statistics, The Center for Disease Control and Prevention,
and The World Health Organization all define abortion as terminating a pregnancy before 20
weeks of gestation or with a baby weighing less than 500 grams.
Abortion Classification.
William Obstetrics' classification of abortion is (1) Spontaneous abortion, Spontaneous
abortion is divided into imminent abortion, incipient abortion, incomplete abortion, incomplete
abortion, complete abortion, missed abortion, and septic abortion. (2) Recurrent Abortion (3)
Induced abortion (Cunningham et al., 2010).
This provocative abortion is divided into 2 groups, namely the medicinal provocate abortion
and the criminal provocateurs abortion, called a medicinal if it is based on the doctor's
consideration to save the mother. From a legal perspective, abortion provocateurs can be
classified into two types, namely (1) Legal abortion, namely abortion which is carried out
according to the conditions and methods justified by law. The basic reason is to save the life
of a pregnant woman; (2) Illegal abortion provocateurs, namely abortion which contains
elements of a crime and does not meet the requirements and methods justified by law.
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Legal Effects on Abortion in Indonesia.
Abortion is an act that disturbs the morality and religion of Indonesian society because if it is
examined from a cultural, social, or religious perspective, abortion is not justified (Dewi &
Suhandi 2011). the success or failure of law enforcement depends on three elements in the
legal system, namely the substance (substance culture), structure (structure culture), and legal
culture (legal culture) (Farelya, 2018).
Regulations related to abortion in Indonesia are regulated in several laws and regulations,
namely : (1) The KUHP Articles 53, 299, 346, 347, 348, and 349. In Article 299 of the
Criminal Code, the hope is that because of the treatment, the pregnancy can be aborted. Acts
that are regulated as criminal acts that correlate with the act of abortion are more focused on
the act of treating a woman who is pregnant or the act of ordering the woman to be treated in
the hope that from the treatment her pregnancy can be aborted. According to Article 346, there
is an element of intention. Therefore what is meant by "deliberately" is having the intention
or desire to do something. Intentionally, in the criminal act of abortion, it can be in the form
of taking high doses of menstrual-releasing drugs, inserting sharp objects into their genitals
to abort the womb. Also, there is an element of "causing the womb to fall or die," meaning
that the fetus in the woman's womb comes out prematurely as a result of coercion or an act
done on purpose so that the fetus dies or dies (Jurdi, 2016).
Therefore, in this Article, aborting the womb means a fetus that is forced out of the mother's
womb in a dead state. The KUHP only sees abortion as an act of killing a life, therefore
abortion is regulated in Chapter XIX Book II of the KUHP which regulates crimes against
life, and Chapter IV Book III of the KUHPwhich regulates immorality violations. Related to
Articles 346, 347, 348 of the Criminal Code, it includes the following actions: "aborting the
womb (driving van de vouch or vouch driving) and killing the womb (de dood van de vrucht
veroorzaken or vrucht doden)". The KUHP does not explain the meaning of the womb, even
the KUHP does not explain the difference in terms of aborting and terminating the womb.
The meaning of this content is very important, meaning that it is the basis for the analysis of
Articles 346, 347, 348 of the KUHP to determine when an act can be said to abort the womb
or when an act is said to kill the womb. (2) Law Number 36 the Year 2009 concerning Health
Article 75 and Article 76. According to the Criminal Code (Articles 299, 346, 347, 348), every
act of killing or aborting a woman's womb is punishable without exception and for any reason.
Like the Criminal Code, Law Number 36 the Year 2009 concerning Health basically prohibits
abortion.
The difference is, according to the Criminal Code, abortion is prohibited without any
exceptions including the abortion of the medicinal provocateurs, while Law Number 36 of
2009 concerning Health provides an exception that abortion can be performed for reasons or
indications listed in article 75 paragraph 2. If it is based on Article 75 paragraph 1, that every
form of abortion is prohibited. This principle is the same as the Criminal Code. The reason or
indication of abortion according to Article 75 paragraph 2 is the basis that eliminates the
unlawful nature of abortion, therefore it cannot be punished. The Health Law (hereinafter
abbreviated as UUK) does not explain what is meant by a medical emergency as the basis for
performing an abortion. According to the author, there should be a limit to the notion of
medical emergencies itself, because along with the advancement of science and technology
in the medical world, there have been many maternal and fetal health conditions that have
been overcome or vice versa, there are the same maternal and fetal health conditions. once it
occurs, the abuse of abortion in the name of a 'medical emergency' can minimized.
Starting from the elements above, the UUK does not differentiate between subjects who do
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abortion, whether ordinary people or medicine, midwives, or doctors. The criminal imposition
system is also an accumulation of imprisonment and fines (Kusmaryanto, 2002).
Government Regulation Number 61 of 2014 concerning Reproductive Health Articles 31, 32,
33, and 35. Unlike the Criminal Code, which does not mention the exclusion reasons for
abortion, both in PP No. 61/2014 on Reproductive Health and Law No. 36/2009 on Health, it
is stated that there are exceptions to perform an abortion. Exceptions to the procedure for
abortion can be made for indications of a medical emergency that could threaten the life and
health of the mother or fetus. Apart from that, pregnancy due to rape is also one of the
exceptions where an abortion can be performed. In connection with this problem, agreement
regarding medical or health indications is actually not clear within the medical community
itself. Medical indications that are commonly used are based on the patient's clinical condition
without paying attention to social factors.
Medical indications in the narrow sense are very limited to vital indications, namely abortion
which is performed to save the life of a pregnant mother because of the danger of death which
cannot be avoided by any means except by abortion (Say et al., 2014). Medical indications in
a broad sense are indications for the safety or health of the mother. Medical indications from
this abortion are always associated with efforts to maintain maternal health and or fetus
(Wagiyo et al., 2016). From the applicable regulations and analysis of the above-mentioned
regulations, it will be used to answer the problem formulations in this chapter. Based on the
theory of the legal system by Friedman, the legal system cannot run without one of the three
elements of the legal system, namely substance, structure, legal culture. The legal substance
which includes the laws and regulations described above must be obeyed by the doctor to
create justice, order, and benefit (Efendi & Makhfudli, 2009). Doctors who treat patients who
try to scrape their wombs must also obey the law, and that compliance is practiced by saving
the patient and the patient's fetus (Winoto, 2020). The legal structure which includes law
enforcement officials also determines whether or not the law can be implemented properly.
Therefore, for the law to run or be upright, it is necessary to have a credible, competent, and
independent law enforcement apparatus.
Legal Protection for Doctors
(1) Law Number 29 of 2004 concerning Medical Practice Article 50 and Article 51; (2) Law
Number 36 of 2014 concerning Health Workers Article 57 and Article 75; (3) Law Number
44 of 2009 concerning Hospitals Article 29.
Based on the prevailing laws and regulations in Indonesia, doctors have the right to legal
protection as long as they carry out professional standards and standard operating procedures,
especially in this study, medical emergencies that arise as a result of a patient failing to
perform an abortion attempt.
If a patient who fails to attempt an abortion and a medical emergency arises is brought to the
hospital, the patient will receive early help from the general practitioner on duty. In carrying
out their profession, doctors are bound by legal provisions. During treatment at the ER, if the
pregnant woman and/or the womb dies, the treating doctor has both civil and criminal
responsibility.
The relationship between doctor and patient in a civil law agreement is included in the
category of engagement based on the effort or maximum effort of the multibintenis
inspectors). This is different from the bond that belongs to the category of binding based on
the work result (resultaatsverbintenis). The patient must have evidence of harm due to nonfulfillment of the doctor's obligations by the applicable medical professional standards in a
therapeutic contract.
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The relationship between doctors and patients in therapeutic transactions (medical
agreements) rests on two kinds of human rights which are basic human rights, namely the
right to self-determination and the right to information (Astuti & SH, 2009). The therapeutic
contract legal relationship is interpreted differently by the law even though in principle it is
the same, namely the relationship between patients and medical personnel. UU no. 36 of 2009
concerning Health states that the parties to a therapeutic contract are patients with health
workers, whereas Law no. 29 of 2004 concerning Medical Practices states that the parties to
a therapeutic contract are patients and doctors or dentists.
In its implementation, this therapeutic agreement must be preceded by approval for the action
of a health worker or doctor, or dentist on the patient, which is commonly called informed
consent. The term transaction or therapeutic agreement is not known in the Civil Code, but
the elements contained in a therapeutic agreement can also be categorized as an agreement as
explained in article 1319 of the Civil Code, that for all agreements, whether they have a special
name or are not well known under a certain name, subject to the general rules regarding the
engagement in general. Apart from that, the general provisions regarding the engagement are
based on the principle of freedom of contract which is regulated in Article 1338 jo. Article
1320 of the Civil Code, namely the main principles and validity of the agreement.
A valid agreement is an agreement that meets the requirements stipulated by law. A valid
agreement is recognized and given a legal consequence or is also called a legally concluded
contract. According to article 1320 of the Civil Code, the legal terms of the agreement are (1)
There is an agreement of the will between the parties who have agreed (consensus) (2) There
is the ability of the parties to agree (capacity). There is a certain thing (object) (3) There is a
lawful cause (causa).
The first and second terms of article 1320 of the Civil Code are called subjective requirements
because they are attached to the person who is the subject of the agreement. If these conditions
are not met, the agreement can be canceled. But if the judge is not asked to cancel the
agreement, the agreement will still be binding on the parties who agreed, even though the
cancellation article is threatened before it has passed the five-year period of article 1454 of
the Civil Code for the patient's recovery. Indirectly, as a result of this agreement, there will
be an agreement between the two parties. Both parties agreed and promised to do something
in the field of medicine or health. As a result of this agreement and agreement, there will be
an agreement between the two parties, namely the doctor and the patient.
In the law, it is explained that what is meant by an engagement is a legal relationship between
two or more people, with one party having the right to demand something from the other
party, while the other party is obliged to fulfill that demand.
From this provision, it can be seen that in health services there is a relationship between the
patient or the patient's family who asks for help and the doctor who with their expertise and
skills can fulfill the assistance requested by the patient or the patient's family. In this case, it
is said that the patient or family demands an achievement from the doctor.
A thing that can be sued is called an achievement and usually arises as a result of an
engagement. According to article 1234 of the Civil Code, "Every engagement is to give
something, to do something, or not to do something". In the doctor-patient bond, the main
achievement is "doing something" even though in certain cases the achievement can "not do
something".
In the medical field, doctors and society realize that doctors can't guarantee that treatment
efforts will always be successful as desired by patients or their families. What a doctor can
give is the maximum effort based on his ability and knowledge to help patients. The result of
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these efforts is not a certainty of a cure. This is because the patient's immune system is not the
same, the severity of the disease when the patient comes to the doctor or hospital also affects
them, and the sensitivity or side effects of the drug for each patient are not the same.
The criminal responsibility of a doctor along with the increasing legal awareness of the
community creates many problems, especially those related to negligence based on theories
of error in criminal law. Criminal responsibility here arises if it can first be proven that there
is a professional error, for example, an error in diagnosis or an error in the method of treatment
or treatment. Mistakes or omissions will always be related to the unlawful nature of an act
committed by a person who can take responsibility.
About the ability to be responsible in determining that a person is guilty or not according to
the law, it is determined by three factors, namely the inner state of the person who did it, the
meaning is that the perpetrator is aware that the act committed is an act prohibited by law and
there is a relationship. the mind between the perpetrator and the deeds committed, namely in
the form of dolus (deliberately) or culpa (negligence/negligence), as well as the absence of
excuses.
Regarding negligence, it includes two things, namely because of doing something that should
not be done or because it is not doing something that should be done. Errors or negligence of
health workers can occur in the field of criminal law, as regulated in articles 263,267, 294
paragraph 2, 299, 304, 322, 344, 347, 348, 349, 351, 359, 360, 361, and 531 KUHP.
The important difference between ordinary crime and medical crime. In ordinary criminal
acts, the main concern is the effect, while in medical crimes, the cause is concerned
(Immergluck & Smith, 2006). Although the consequences are fatal, if there is no element of
negligence or error, doctors cannot be blamed. An abortion that is performed without medical
indication is an example of criminal malpractice that is deliberate. Regarding abortions
without medical indication, although the reality on the ground is that many cases occur, not
many cases have reached the courts.
In the medical law literature with the Anglo Saxon legal system it is said that a new doctor
can be blamed if he meets 4D requirements, namely: duty, derelictions of that duty, damage,
and direct causal relationship.
In carrying out medical practice, it is mandatory for doctors to make medical records and if
medical action is to be performed, and informed consent is required. According to Permenkes
No. 269 / MENKES / PER / III / 2008 concerning Medical Records, a medical record is a file
containing notes and documents about patient identity, examination, treatment, actions, and
other services that have been provided to patients. Meanwhile, according to Permenkes No.
290 / MENKES / PER / III / 2008 concerning Approval of Medical Action, approval for
medical action is an approval given by a patient or immediate family after receiving a
complete explanation of medical or dental action to be performed on the patient. The use of
medical records and informed consent is when verification is needed.
If it can be proven that the doctor has treated the patient with the utmost effort to save the
patient's life, then the doctor can medically and legally say that the doctor is doing his job and
not breaking the law even though the baby died and it can be proven that the doctor did not
violate the standard operating procedure and don't commit malpractice.
The important difference between ordinary crime and medical crime. In ordinary criminal
acts, the main concern is the effect, while in medical crimes, the cause is concerned. Although
the consequences are fatal, if there is no element of negligence or error, doctors cannot be
blamed. An abortion that is performed without medical indication is an example of criminal
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malpractice that is deliberate (Filkins, 2001; Vuletić, 2019). Regarding abortions without
medical indication, although the reality on the ground is that many cases occur, not many
cases have reached the courts.
In the medical law literature with the Anglo Saxon legal system it is said that a new doctor
can be blamed if he meets 4D requirements, namely: duty, derelictions of that duty, damage,
and direct causal relationship.
In carrying out medical practice, doctors are obliged to make medical records and if medical
action is to be performed, informed consent is required. According to Permenkes No. 269 /
MENKES / PER / III / 2008 concerning Medical Records, a medical record is a file containing
notes and documents about patient identity, examination, treatment, actions, and other
services that have been provided to patients. Meanwhile, according to Permenkes No. 290 /
MENKES / PER / III / 2008 concerning Approval of Medical Action, approval for medical
action is an approval given by a patient or immediate family after receiving a complete
explanation of medical or dental action to be performed on the patient. The use of medical
records and informed consent is when verification is needed.
If it can be proven that the doctor has treated the patient with the utmost effort to save the
patient's life, then the doctor can medically and legally say that the doctor is doing his job and
not breaking the law even though the baby died and it can be proven that the doctor did not
violate the standard operating procedure and don't commit malpractice.
In Indonesia, abortion as a choice is still considered as a forbidden things. The abortion that
allowed is only abortion with medical indication. Even if someone was raped, one can not
terminate their pregnancy without medical emergency.
Conclusion
If the abortion does not result in the termination of the pregnancy, then a KUHP Article 53
paragraph 1 because it is included in an attempt to commit a crime. Even though it only informs
or raises an expectation that someone's abortion can be threatened with Article 299 of the
Criminal Code. If the abortion is carried out by the pregnant woman herself and causes the
baby to die, the mother is threatened with Article 346 of the Criminal Code. Meanwhile, if the
abortion was carried out by another person and resulted in the death of the mother and baby,
then he would be threatened with article 347 or 348 of the Criminal Code. If the other person
is a doctor, midwife, or meditator, based on Article 349 of the KUHP, the penalty can be added
by one-third and the case for searching can be revoked. For someone who does, orders to do
participates in, gives or promises something by abusing power or dignity, by using violence,
threats or misdirection, or by giving opportunities, means, or information, deliberately
encouraging other people to commit acts which are threatened by the Criminal Code Article 55
as Meanwhile, a person who deliberately provides assistance, opportunity, means and
information to commit a crime is threatened with Article 56 of the Criminal Code and sentenced
to assist a crime. The criminal threat for abortion perpetrators is also stated in Article 194 of
the Health Law, which can ensnare anyone who deliberately has an abortion. Medical services
by Law No. 36 of 2009 About Health, and Law No. 44 of 2009.
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