Translation:Act Amending the Penal Code (No. 28), 2564 BE
Act
Amending the Penal Code (No. 28),
2564 BE
Phra Bat Somdet Phra Paramenthara Ramathipbodi Sisinthra
Maha Vajiralongkorn Phra Wachiraklao Chaoyuhua
Given on the 5th day of February 2564 BE
Being the 6th year of the present reign
Phra Bat Somdet Phra Paramenthra Ramathipbodi Sisinthra Maha Vajiralongkorn Phra Wachiraklao Chaoyuhua gives a great royal command by which He orders with His pleasure that it be announced as follows:
Whereas it is appropriate to amend the Penal Code;
Therefore, by and with the advice and consent of the National Assembly, He orders with His gracious pleasure that the following Act be enacted:
Section1.This Act is called the "Act Amending the Penal Code (No. 28), 2564 BE".
Section2.This Act shall come into force from the day following the day of its publication in the Royal Gazette onwards.
Section3.The stipulations of section 301 of the Penal Code, which have been amended by the Act Amending the Penal Code (No. 26), 2560 BE, shall be repealed and replaced by the following stipulations:
"Section301.Any woman who causes her own abortion or allows another person to cause her abortion when her pregnancy is longer than twelve weeks, shall be punished with imprisonment not over six months, or a fine not over ten thousand baht, or both the imprisonment and the fine."
Section4.The stipulations of section 305 of the Penal Code shall be repealed and replaced by the following stipulations:
"Section305.If the offence under section 301 or section 305 is committed in [any of] the following events by a medical practitioner and in compliance with the criteria of the Medical Council, the person committing it is guiltless:
(1)it is necessary to commit [the offence] because the woman would be at risk of suffering harm to her physical or mental health if her pregnancy continues;
(2)it is necessary to commit [the offence] because there is a considerable risk, or there is a medical reason for which it should be believed, that the baby, if born, would suffer abnormality to the extent of severe infirmity;
(3)the woman confirms to the medical practitioner that she has become pregnant as a result of an offence relating to sexuality;
(4)the woman whose pregnancy is not longer than twelve weeks confirms [her intention] to terminate the pregnancy;
(5)the woman whose pregnancy is longer than twelve weeks but not than twenty weeks confirms [her intention] to terminate the pregnancy after [receiving] examination and options counselling from medical practitioners and other practitioners according to the criteria and procedure designated by an announcement of the Minister of Public Health upon advice of the Medical Council and relevant agencies under the law on prevention and solution of adolescent pregnancy problems."
General Prayut Chan-o-cha
Prime Minister
Note: The grounds for promulgation of this Act are as follows: The Constitutional Court has issued the Ruling No. 4/2563 dated 19 February 2563, declaring that the provisions regarding the offence of a woman causing her own abortion or allowing another person to cause her abortion under section 301 of the Penal Code are contrary to or inconsistent with section 28 of the Constitution of the Kingdom of Thailand for [these reasons:]
- "Abortion or termination of pregnancy is a sensitive problem pertaining to the society, medicine, and law, and is a problematic issue involving ethics and morality, as a woman who causes her own abortion or allows another person to cause her abortion is considered to be guilty of a criminal offence in respect of which a punishment is designated for her only. Although the legal spirit and virtue of the offences of abortion are to protect the life of a foetus because importance is given to the life of a human who is to be born; the foundation of the society does not merely rely upon the value of a human life and other significant factors are also required to form the basis of the society. Likewise, in protecting the right of a foetus to life, if the protection is mainly focused upon the right of the foetus without taking into account the protection of the right of the pregnant woman which comes before the right of the foetus, the impact that might result therefrom would be that the woman suffers unfairness and incurs diminution or restriction of the right to her own body, which is a natural right — a right that grounds the dignity of a human, by virtue of which one is entitled and free to do or refrain from doing anything respecting one's own life and body, as long as one's action does not disturb or violate the rights and freedoms of another person — and that the right of the pregnant woman to self-determination, which covers the right of the woman to decide whether to terminate her pregnancy or to continue the pregnancy, is prejudiced. The protection of the right of the foetus and the right of the pregnant woman thus requires equilibrium, for which the period of the pregnancy might need to be taken as a criterion. The denial of [those] rights of women without designating a suitable condition or time clause as in section 301 of the Penal Code results in immoderate restriction of rights and freedoms of women. In addition, the State has the duty to designate measures for supporting [every] person in the exercise of rights and freedoms, in respect of which [the State needs] to make available measures for terminating pregnancy in a safe [and] lawful manner without affecting the exercise of a right by a woman, and, at the same time, [the State] is obliged to take care of and offer protection to the life of a foetus in order to prevent its right to life from being affected. Accordingly, the provisions of section 301 of the Penal Code cast an immoderate impact upon the rights and freedoms of women [with respect] to their [own] lives and bodies, fail to conform to the principle of proportionality, and amount to the restriction of rights and freedoms according to section 28 of the Constitution of the Kingdom of Thailand."
In addition, the Constitutional Court has also provided recommendations that the Penal Code and laws regarding abortion ought to be improved to suit the present situation. It is thus appropriate to amend the provisions relating to the offences of abortion, by designating the pregnancy period for the offence of a woman causing her own abortion or allowing another person to cause her abortion under section 301, and adding exempting circumstances for the offences of abortion into section 305, so that [these provisions] conform to the said ruling of the Constitutional Court and be more compatible with the situation at present. Therefore, it is necessary to enact this Act.
Bibliography[edit]
- "Phra Ratcha Banyat Kaekhaiphoemtoem Pramuan Kotmai Aya (Chabap Thi Yisip Paet) Phoso Song Phan Ha Roi Hoksip Si" [Act Amending the Penal Code (No. 28), 2564 BE]. (2021, 6 March). Ratchakitchanubeksa [Royal Gazette], 138(10A), 1–3. (In Thai).
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