Navigating the Legal Landscape: Abortion Laws, Rights, and Amendments

Abortion has a long historical presence dating back to ancient times, initially not prohibited by law as children were considered part of a woman's body. Over time, awareness of the dangers associated with abortion led to its prohibition and classification as a crime. Presently, varying reasons justify legal abortion in different countries, such as medical, economic, and social factors, or when determining the age of the fetus or the health of the mother. While many countries have successfully addressed the issue of illegal abortions, others strictly forbid the practice, resulting in widespread unsafe procedures and compromising women's safety.

In Thailand, abortion was deemed illegal under Sections 301-305 of the Criminal Code until the recent amendment in 2021. This amendment decriminalized abortion in specific cases, including situations where there is a risk to the baby's health or serious disorders, or if the pregnancy is within 12 weeks and the woman insists on having an abortion. The amendment has sparked both support and opposition within the community.

Concerns have been raised in Thailand regarding the impact of abortion law amendments on morality and religious beliefs. While some view abortion as a sin, conflicting opinions argue that legalizing abortion can mitigate social problems. The central debate revolves around whether abortion is a right of the pregnant woman or a right of the fetus to live.

The determination of gestational age requires a delicate balance between the rights of the pregnant woman's body and the rights of the fetus. In the Civil and Commercial Code of Thailand, Section 15 stipulates that personality begins with the full completion of birth and ends with death. According to the Constitution of the Kingdom of Thailand, Section 28 grants individuals the right and liberty over their lives and persons. Applying these legal principles, a fetus is not considered a personality and, therefore, does not possess rights under Section 15. Consequently, a pregnant person may have the right to abortion in accordance with the law.

Is abortion tantamount to the crime of murder? Abortion, without consideration for the fetus's condition, may be viewed as akin to murder. However, the offense of murdering another person requires that person to have personality, as defined in Section 15. Therefore, abortion is not deemed murder, but rather an offense specific to abortion. This provides pregnant women with the opportunity to make a choice, whether to safely terminate their pregnancy or to continue with proper care for both mother and child.

Comparing the amended offenses of abortion to the previous version, notable changes include:

  • Section 301 now allows the termination of pregnancy if the gestational age is not more than 12 weeks, a significant departure from the old version where termination was not allowed in any case.
  • Section 305 in the old version had two sub-clauses specifying exceptions to the offense of abortion, limited to health problems and pregnancies resulting from sexual harassment, even if the child had serious disabilities. The new version, with five sub-clauses, includes consideration for children's health and permits abortion for women with gestational ages not exceeding 12 weeks (as per Section 301). If exceeding 12 weeks, the termination must not surpass 20 weeks and comply with regulations set by the Ministry of Public Health.

In the new version of Section 305, only doctors with medical practitioner degrees are permitted to perform abortions, highlighting a more stringent requirement compared to the previous version.

Written by: Suthawan Boonmak & Wasin Kitcharoen

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