Abortion Due to Rape in The Perspective of Criminal Law and Health Law in Indonesia

Abstract

The legalization of abortion as a result of rape in Law Number 36 Year 2009 Concerning Health, has caused a long debate. The debate is divided into at least two opposing views. First, the view that supports the abortion caused by rape. This group holds that abortion due to rape can be tolerated on humanitarian grounds. This view is based on the idea that the criminalization of women abortionists as a result of rape is a form of discrimination against women victims of rape. Second, the view that refuses abortion due to rape. This group is of the view that fetuses in the womb of women still have the right to life. According to this view, abortion can only be performed on medical indication. The following article will carry two issues as a reference for discussion. First, how is abortion caused by rape constructed in positive law in Indonesia? Second, how is the legal consequence of the decriminalization of abortion as a result of rape in health law in Indonesia? Through normative studies, this study produces conclusions as follows. First, in the perspective of positive law in Indonesia, abortion is in principle a prohibited act. Second, the decriminalization of abortion due to rape in health law is a response to emergencies, not valid in all circumstances.

Keywords: abortion, rape, criminal law, health law

DOI: 10.7176/JLPG/103-02

Publication date: November 30^th 2020