Kesenjangan Struktural Norma Pengaturan Aborsi dalam Hukum Positif Indonesia: Analisis Hak Asasi Manusia dan Teori Hukum Feminis

Abstract

The reform of Indonesia's Criminal Code, Health Law, and its implementing regulation has been presented as progress for women's reproductive rights, yet it remains unclear whether the new framework actually meets international human rights standards. Existing studies tend to examine criminal, health, or ethical aspects in isolation, leaving a research gap concerning the combined assessment of Indonesia's abortion norms through both human rights law and feminist legal theory. This study aims to measure the gap between Indonesia's abortion norms and international reproductive rights standards and to explain why that gap persists. It employs normative legal research with statutory and conceptual approaches, analysing primary legal materials, treaty body interpretations, and scholarly literature prescriptively. The results show that the norms recognise reproductive rights only partially and symbolically, while neglecting them substantively, procedurally, and in implementation, and that they fail the legality, necessity, and proportionality tests for restricting rights. The novelty of this study lies in a three-layer reading of gender subordination, namely the construction of the legal subject, the distribution of decision-making authority, and the recognition of legitimate knowledge, which shows that the gap is structural and requires a shift from criminalisation to a health-service paradigm.