Observations of the Extraordinary Commission Considering on Revision of Offence of Abortion under the Penal Code

The Draft Act on Amendment to the Penal Code (no. ..) B.E. …. on the part of offence of abortion (“Draft Act”) has recently been published in the Royal Gazette as the Act on Amendment to the Penal Code (No. 28) B.E. 2564 on 6 February 2021 (“Act”) and it became enforced on 7 February 2021.

The revised provision to Section 301 of the Penal Code as specified in the Act will not penalize a woman, with gestational ages up to 12 weeks, who has terminated a pregnancy by herself or allowed another person to do so.

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The revised provision to Section 305 of the Penal Code as also specified in the Act exempts the offence of abortion for medical professionals, who perform so under one of the conditions as follows:

  1. It is necessary to be done due to the risk of causing danger to physical or mental health of the woman once she continues her pregnancy;
  2. It is necessary to be done due to the significant risk of being affected by physical or mental disability to serious disability if a fetus is born;
  3. The woman is pregnant on account of commission of the offence relating to sexuality;
  4. The woman, with gestational ages upto 12 weeks, insists on terminating her pregnancy; or
  5. The woman, with gestational ages over 12 weeks but not exceed 20 weeks, insists on terminating her pregnancy after examined and received alternative consultation from the medical professional in accordance with the rules and procedures as announced by the Ministry of Public Health with the advice of the Medical Council and the relevant authorities under the Act on Preventing and Solving the Problem of Adolescent Pregnancy.

However, during the 12th House of Representatives meeting (the 2nd annual ordinary session) on 20 January 2021, the Extraordinary Commission (“Commission”) had made certain observations about the Draft Act and the meeting finally voted in favor of the said observations.

According to the revised provision to Section 301 of the Penal Code, the Commission viewed that it is possible that the woman may cause herself to be aborted by any means not under the supervision of the medial professional (i.e. consuming illegal drugs to cause herself to be aborted or conducting illegal abortion). Hence, the relevant government authorities should take actions against such problems by stating controlling measures, encouraging the woman to enter into the public health service system and facilitating access to quality drugs in order to ensure the safe termination of pregnancy.

As for the alternative consultation system under Section 305, the Commission suggested that all government service centers should provide (i) an advisory service on alternatives and comprehensive problems solving to terminate or not terminate a pregnancy and (ii) a referral and continuous care system to assist and look after the woman to be able to access the service easily.

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Furthermore, the Commission viewed that this revision to the Penal Code is a part of solving the problem of unplanned pregnancy by termination of pregnancy in which it is an end-to-end problem solving. Therefore, all responsible sectors should coordinate with each other actively by taking care of their own family together with providing knowledge and understanding about sex education in an education institution, including providing serious and comprehensive birth control.

The Cabinet acknowledged the abovementioned observations of the Commission. The observations will be passed to the Ministry of Public Health together with the relevant authorities for their consideration and summarize the result of consideration or overall performance before delivering the same to the Secretariat of the Cabinet in order to return to the Cabinet for its consideration. The provision of offence of abortion then may be revised again after the said reconsideration of the Cabinet.

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