Baby Hatch Triumph in Malaysia: Criminal Law versus Health Law

In August this year, I wrote about baby dumping and possible interventions to the baby dumping epidemic in Malaysia. Legalistically-speaking, we are looking at comprehensive ‘safe haven’ legislation which combines multiple interventions with harmonization of other laws, the most relevant of which is s302 of the Penal Code, i.e. murder. Safe haven legislation encompasses decriminalisation of baby abandonment. I’m positive that this sentence on its own is bound to attract the criticism of scores of ignoramuses out there who will condemn safe haven legislation as pro-murder/pro-infanticide. Which is absolutely and irrefutably erroneous.

Safe haven legislation allows for the creation of baby hatches at strategic locations such as hospitals and religious institutions, where individuals may leave their newborns. Baby hatches, aside from saving the lives of countless newborns, provides a window of opportunity for mothers to come into contact with advice and social services if need be.

What part of this is pro-murder? Well, critics argue that the measure to introduce baby hatches encourages baby dumping. To some of us, the response to that is obvious to the point of repeated forehead slapping. But to others, as I’ve experienced in the course of my work, that sentence pretty much sums up public opinion. And to this I emphasise, that baby dumping is going to happen one way or another; the baby hatches just create the difference of how many babies die and how many live. NOT introducing baby hatches is pro-murder, if anything, and not the other way around.

To this I have to commend the efforts of KPJ Ipoh Specialist Hospital in introducing Malaysia’s first baby hatch.[1] I'm not sure to what extent the Perak government was involved in policy discussions on baby hatches, but nevertheless, I commend them too. I dare say we are on the verge of a new era of rationalization in health policy versus traditionalistic moralist health policy.

In the face of this nascent positivity in tackling baby abandonment, however, I foresee clashes with the criminal justice system. In mid-August 2010, baby dumping was classified as murder under s302 of the Penal Code. Why is this problematic? After all, individuals abandon foetuses with full knowledge that the foetus is unlikely to survive. The individual charged for murder must have malice aforethought, and I doubt that many mothers who abandon their children have the requisite intent to kill, and on top of that, I question if there is even actus reus for murder. But that’s a question for another day; and is a question for a criminal lawyer and not someone like myself.

What I will talk about is the indirect effects of the criminalisation of baby dumping. As baby dumping is murder under Malaysian law, mothers will fear prosecution and may avoid baby hatches altogether. In such a situation, if the police were to lurk within close proximity of baby hatches just to catch individuals who plan to deposit their newborns there, the baby dumping epidemic will continue as it is now. We will be back to status quo. A positive change requires that the law be changed. If we want to save lives, baby dumping MUST be decriminalised. At the very least, it should NOT be classified as murder as such legislation will do nothing but increase infant mortality. Baby hatches is a fantastic start. But without harmonization of the law with health practice, I fear that punitive and uninformed law enforcement measures will continue to impede positive public health outcomes.

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[1] Sylvia Looi, ‘Ipoh Gets Nation’s First Baby Hatch in Hospital’ The Star Online (28 December 2010) http://thestar.com.my/news/story.asp?file=/2010/12/28/nation/7692435&sec=nation accessed 28 December 2010