15 September 2009

Abortions, Plastic Surgery, Breastfeeding, and Other Goodies in the Indonesian Health Bill...

No apologies for a really long post...read it if you want to (it is interesting though) :D

The Health Bill which will repeal and replace the current law, Law No. 23 of 1992, has been doing the rounds of the House of Representatives (Dewan Perwakilan Rakyat / DPR) since at least 2003. The passage of the bill was somewhat controversial as it includes clauses that permit abortions to occur under very specific circumstances. Ultimately, these clauses saw one parliamentary faction reject the bill outright and another pass the bill but with notes as to their objections included. These factions were the Prosperous Peace Party (Partai Damai Sejahtera / PDS) and the Star Reform Party (Partai Bintang Reformasi / PBR), respectively.

Nevertheless, PDS did accept the right to an abortion where there was a medical reason detected early in the pregnancy (Art. 75(2)(a)). In contrast, the PBR rejected the clause that permits a rape victim to abort the product of that rape. The PBR rejection is based on the rights to life of the fetus / baby.

However, the bill is so much more than just a few clauses legalizing abortion in certain circumstances or more generally female reproductive rights. The bill also includes provisions on generic medicines and the rights of babies to be breastfed exclusively for the first six months of their young lives, and the amount of the respective government budgets that are to be allocated to health.

The provisions permit abortion within a very narrowly defined set of circumstances. It is important to note that these circumstances do not include abortion as a form of birth control. Abortion is permitted where the pregnant woman is pregnant as a result of a rape. Abortion is also permitted in circumstances where there is a medical reason for the procedure to be conducted. Some of the medical reasons include where there is an identified risk of severe genetic defects in the fetus or where the life of the mother is at risk if she were to carry the fetus / baby to term.

Before an abortion can be performed, counseling must be undertaken by the woman to determine whether she has considered all of the pros and cons of what she is about to do. The bill lists who may provide this counseling.

The bill also requires that the government ensure the availability and supply of generic medicines. This is intended as a measure to ensure that all Indonesians have access to medicines and drugs that they can afford. It is worth noting that the only obligation on the government with respect to generic medicines and drugs relates to those medicines and drugs listed on the essential list.

Interestingly, the bill recognizes the rights of babies to be breastfed exclusively for the first six months of their young lives, and then in combination with other foods up to the age of two. The bill also recognizes that some mothers, even when they want to, for medical reasons are unable to breastfeed. Where this is the case the mother is exempted from the provision. However, it would seem that there would need to be a provable medical reason for this before the exemption would come into effect. It is unclear whether mothers need to have a medical certificate that they must carry with them in order to prove this. The bill is also silent on how this is to be enforced.

More interestingly, the bill requires that the ability to breastfeed be facilitated by not only family members, but also by the central and regional governments, and the broader community. This implies that there is an expectation that employers respect the need for women to breastfeed and provide specialized facilities for this purpose.

Anyone that intentionally interferes with the breastfeeding program is liable for a term of imprisonment up to one year and a fine of IDR 100 million.

Furthermore, the bill sets out provisions that require the central government to set aside at least 5% of the state budget for the health sector. The bill also requires that the regional government set aside a minimum of 10% of their respective budgets for the health sector. There is an important stipulation with these minimum amounts, namely: that they are the minimum amount required to be set aside and these numbers do not include the salaries of any employees. Therefore, in real terms the budget for health related matters is likely to be larger than the amounts noted when salaries are factored in.

The bill also addresses issues such as malpractice, an obligation on health services and providers to provide emergency health care to anyone who requires it irrespective of that person’s ability to pay, traditional healers and therapies, plastic surgery and reconstructive surgery, and expressly prohibits the trafficking in organs.

The provisions relating to malpractice and the obligation to provide treatment are attacked to a criminal sanction that provides that where medical treatment is refused then there is a liability to a term of imprisonment up to two years and a fine of up to IDR 200 million. However, where this refusal results in impairment or death then the penalties are ratcheted up to a maximum of ten years imprisonment and a fine of up to IDR 1 billion.

Traditional healers who use “tools” are required to have those tools registered by the relevant authorities. I would be guessing that this includes Mak Erot and her sons with respect to their noted abilities in fixing male issues like small penis syndrome. If a traditional healer causes injury then they are liable for a term of imprisonment not to exceed one year and a fine of up to IDR 100 million. This is the case even where the injury caused results in death.

So, in that sense it is better to be a traditional healer and kill someone than be a doctor and kill someone. In fact it could be better by about nine years.

The bill explicitly prohibits the commercialization of organ transplants by stipulating that transplantation of organs and body parts can only be done for humanitarian reasons and not for commercial purposes. Therefore, anyone caught trading human organs and body parts are liable for a term of imprisonment up to ten years and a fine of up to IDR 1 billion.

The plastic and reconstructive surgery provisions are interesting. Probably more interesting because the elucidations to the bill only state “self-explanatory” which in essence means that the bill is silent as to how these provisions might be interpreted. This is of concern considering that the penalties are severe, up to ten years in prison and fines of up to IDR 1 billion.

Yet, the provisions prohibit the use of plastic and reconstructive surgery if the objective is to change one’s identity. But, isn’t that the purpose of plastic surgery to change or improve how you look, and consequently change your identity? The bill also prohibits plastic and reconstructive surgery that is against community norms. Unfortunately, the elucidations are silent as to what these community norms (and presumably values) are. So, it is worth wondering out loud whether the provision can be used to prevent gender re-assignment surgeries? I guess that this will all become much clearer when the necessary implementing legislation is enacted. So, until then perhaps this is all much ado about nothing.

It is clear that the bill is a lot more than just a few clauses on abortion and when abortion is permitted. Nevertheless, it is expected that it is the abortion provisions that will dominate news headlines. However, the articles dealing with matters such as generic medicines and drugs, breastfeeding, and minimum budgets are equally as important as these in effect significantly alter the regulatory framework from the current law and also seemingly place additional burdens on both the public and private sectors.

The bill comes into immediate force once it is enacted. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.

2 comments:

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