LEGALITY OF ABORTION AND VIOLATION OF LEGAL RIGHTS IN INDONESIA

by ZESKA JULIAN

Preliminary

"Indonesia is a state of law", these words are embodied in the 1945 Constitution of the Republic of Indonesia. Based on this provision, all the problems that exist in the community in their daily activities are settled according to the prevailing rules. This rule applies nationally regardless of ethnicity, race, religion, diverse in Indonesia. This is to ensure that the goals of the country contained in the preamble of the 1945 Constitution can be realized. The objectives of the country according to the preamble of the 1945 Constitution are:

1. Protecting the whole Indonesian nation and the entire blood of Indonesia

2. To promote the common good,

3. Educating the life of the nation,

4. Implementing a world order based on freedom, eternal peace and social justice

To achieve the goals of the country there must be community participation that will be one of the parties that run a regulation. Regulations are made from the interests of the people, guaranteeing human rights and for the maintenance of public order. Thus, the state that makes the regulation in this case the Legislature does not arbitrarily make rules for its own sake. The State has the duty to fulfill its obligations, and the public is entitled to the guarantee of its basic rights. This is because the state is a container for all rights of the people, even though the people themselves have an obligation to their country. In performing its functions, the state has an obligation to protect its citizens. According to Leslie lipton the function of the original state and the oldest is protection, because the state in the form by individual individuals to obtain protection and the state continues to be maintained to maintain that goal (Mansur 2007: 9). One of the most visible things in the protection of citizens by the state is when citizens confront the law. In this case there is usually a rule violation involving the perpetrator and the victim. For perpetrators would have been normal if their rights should be fulfilled, because in the Criminal Code itself there is a principle of persumption of innocent, which in essence, a person can not be guilty before proven and sentenced for the deeds he has committed. In practice, after being found guilty the rights of the perpetrators of criminal acts are still protected by the state, such as prisons (LAPAS). However, the current rights of victims in prisons has not been adequate. There is no institution for casualties, where their existence is important for rehabilitation by the state. After the court's verdict, the victim community only gets satisfied, in the sense that the victim feels hurt when the perpetrator is in law, but the victim does not get the rehabilitation of the suspect's treatment. The above case shows that some of the criminal cases that occurred around the life of the community are neglected in such a way, and it should be of concern to the government. The problem is, what if it turns out the violation of rights in the community was supported by regulations made by the government? This rule only focuses on the punishment of the perpetrator, even the offender can be said to be innocent when carrying out these things under certain conditions. An example is the legalization of abortion behavior by the Act, whereas the act is the act of the disappearance of life and the abolition of the right to human life. The legal category is clear, that is the act of a crime. Based on these considerations, the authors are interested in writing articles that analyze the behavior of abortion legalized by the Act in Indonesia.

Recognizing Abortion:

 In the medical world are known 3 kinds of abortion, first, Spontaneous / Natural Abortion or Abortus Spontaneus. Second, Artificial Abortion / Accidental or Abortus Provocatus Criminalis. Third, Therapeutic / Medical Abortion or Provocatus Therapeuticum Abortion. Spontaneous / natural abortion takes place without any action. Mostly due to poor quality of eggs and sperm cells. Artificial / deliberate abortion Provocatus Criminalis is termination of pregnancy before 20 weeks' gestation or fetal weight is less than 500 grams as a result of deliberate action and is acknowledged by both expectant mothers and abortion practitioners (in this case doctors, midwives or dukun beranak). While therapeutic abortion / Abortus Provocatus therapeuticum is the abortion of artificial content performed on medical indications. (Www.anneahira.com/pengertian-aborsi.htm, "Abortion", Semarang: December 8, 2013). From the definition of abortion above when referring to the notion of spontaneous abortion is certainly not the will of the perpetrator or the fabricated because it occurs naturally. This abortion takes place beyond the will of the offender regardless of whether the child is wanted by the owner of the womb or not. But there are exceptions when it turns out the mother deliberately doing heavy activity or intentionally eating / drinking a substance that is intended to make the weak content can be classified on the second sense. The problematic abortion is the abortion is the will of the perpetrator. With the decision taken by the perpetrator it can be said that the perpetrator intentionally committed murder or deliberately took the lives of other individuals. It is said to have taken a life because pregnancy is usually known by the perpetrator after the fetus has a life or has shown signs of life in the womb and therefore means that the fetus should be protected by the state in recognition of human rights related to the right to life . Because human rights are the natural rights that man has since he has a life in the womb. So in this case the mother can already be sentenced as mentioned in Article 299, Articles 346- 349, Article 383, and Article 535 of the Criminal Code (KUHP). Common reasons for women having an abortion in Indonesia are usually due to pregnancy out of wedlock (http://www.parentsindonesia.com, "7 Reasons for Abortion", Semarang: December 8, 2013) The next question is what if the abortion was done for medical reasons Done because of the pressing conditions (force force)? Actually this is where the accomodation by the state. On the one hand the act of abortion is usually a consideration to save the life of the mother or the child by the family can even both survived. However, it will cause major problems in the future such as the child will suffer from mental or physical disability, or the mother affected. Therefore, in order not to be a problem the family decided to abort the womb because it is considered the child will suffer at birth, for example when the child is big will be ridiculed, feel isolated, which in essence can not live normally and well like other children on generally. Most parents do not want to take risks in this regard. On the other hand, there is actually an evil conspiracy because the family conspires to commit the murder of someone who has a life and it is all encouraged by the will of the family because according to them this is the best way forward. The family also conspired with doctors in this murder and that certainly would have an impact on the violation of the right to life of a baby. The problem is, why the action is still accommodated by the state. The author himself analyzes, as a matter of fact, the law is derived from the rights of interested citizens to meet their needs but in a positive way and it is deemed to fulfill the stated legal purpose of fulfilling the principle of justice, benefit and the principle of legal certainty. So the rules set forth in Law No. 36 of 2009 on Health should be there, because it is not just the interests of the state or only 1 (one) or 2 (two) individuals but is in everyone's interest. The state is also not stupid in facilitating abortion. It is true that the State here indirectly in the case of abortion legalizes the killing of an animate fetus and neglects the fetus. The state supports it based on community demands tailored to the values ​​of society, such as abortion when the mother's life is threatened, and so on. However, the reason must necessarily be based on expert considerations in this case the obstetrician, the family of the perpetrator, as well as the perpetrator itself. According to Health Act No. 23 of 1992 article 15 mentioned that in an emergency as an effort to save the life of pregnant women and / or fetus can be done certain medical actions. The purpose of the phrase 'certain medical actions is based on the medical indication that requires the action taken by health personnel who have the expertise and ability for it and performed in accordance with the professional responsibilities and consideration of a team of experts with the approval of pregnant women concerned as well as husband and family While according to UUKesehatan No. 36 of 2009 Article 75 paragraph (2) states that the prohibition of abortion may be exempted based on, first, medical emergency indications detected since early childhood of pregnancy, both life-threatening mothers and / or fetuses, suffering from severe genetic diseases and / or congenital defects , And that can not be fixed so difficult for the baby to live outside the womb; Or second, pregnancy due to rape that can cause psychological trauma for rape victims.

Conclusion:

Based on the above discussion, the authors conclude that abortion has the support of the state, in this case seen from the Laws that allow it. But this can not only be viewed from one side because the Law is based on the demands of the society itself. Therefore, the act of abortion is not as easy as reversing the palm of the hand, there must be underlying considerations. Of course, it has become a matter of consideration, especially by medical institutions and police and the participation of the public to examine the abortion, which is allowed and which is not justified. In addition, the law that allows abortion should be criticized again in view of the growing social dynamics of society. Moreover, we know that the right to life is an indispensable right in any condition (non derogable right) and abortion is, after all, an act of the disappearance of life and the right of human life. Another consideration is that most people have an abortion because the kwatir is incapable of meeting the needs of their child at birth, and let alone just the reason for the kebo get together.