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Thailand: Abortion in First Trimester Legalized

(Mar. 1, 2021) On January 25, 2021, the Ratthasapha (Thai national assembly) amended the Thai Penal Code to relax currently restrictive regulations on abortion by decriminalizing the termination of pregnancy during first 12 weeks. The amendment was published in the Government Gazette on February 6, 2021, and took effect on the following day. (Act Amending the Criminal Code (No. 28), B.E. 2554, sec. 2.)

The relevant provisions of the penal code that were affected by the amendment are as follows:

  • Section 301, which stipulated that a woman who performed an act that caused herself to abort or who allowed another person to procure an abortion for her was punishable by up to three years’ imprisonment or a fine of up to 60,000 bahts (about US$2,000), or both.
  • Section 302, paragraph 1, which stipulated that a person who procured an abortion for a woman with her consent was punishable by up to five years’ imprisonment or a fine of up to 100,000 baht (about US$ 3,330), or both. (See an unofficial translation of the Penal Code as of 2003. The amounts of the fines were increased in 2017.)
  • Section 305, which stipulated that a medical practitioner who committed the offense described in section 301 or section 302 was not guilty of committing an offense when (1) the act was necessary for the sake of the health of the woman or (2) the woman was pregnant as the result of a sexual crime.

On February 19, 2020, the Constitutional Court of Thailand ruled that the aforementioned provisions of the penal code were partially unconstitutional and ordered the legislature to amend the code. The ruling was the result of a lawsuit filed with the Constitutional Court in 2018 by a doctor who claimed that sections 301 and 305 of the code were unconstitutional. The doctor, who had performed abortions on women with their consent, was arrested by police and charged with the offense of performing an abortion with the woman’s consent under section 302 of the penal code. The women whose pregnancies the doctor had terminated were also arrested and charged under section 301, but the police did not apply the provision in section 305 of the code justifying abortions performed by a medical practitioner. In its ruling, the court decided that section 301 of the code violated section 28, paragraph 1 of the Thai Constitution, which states that “[a] person shall enjoy the right and liberty in his or her life and person,” and obligated the legislature to amend the provision within 360 days from the court’s decision.

The new section 301 criminalizes terminating a pregnancy after 12 weeks of pregnancy if there is no justification for the termination. In addition, the penalty for the offense has been reduced to imprisonment for not more than six months or a fine not exceeding 10,000 baht (about US$ 333), or both.

Although the Constitutional Court did not rule that section 305 was unconstitutional, the legislature amended section 305 as well. The new section 305 adds more justifications for medical practitioners when the acts described in sections 301 and 302 are in accordance with criteria set by the Thai Medical Council. Under the new section, abortions are justified for pregnancies when they

  • are terminated during the first 12 weeks,
  • pose a threat to either the physical or mental health of the mother,
  • carry a high risk of health problems that may lead to infant deformities or disabilities, or
  • result from a sexual offense.

In addition, the new section allows abortions after 12 weeks but no later than 20 weeks of pregnancy in cases where a woman, after consulting with experts, insists that she must have an abortion.