Criminal liability structure for a woman over twelve weeks of pregnancy causing her own miscarriage or allowing someone else to cause an abortion

Abstract

This paper aims to explain the criminal liability of a woman with over twelve weeks of pregnancy causing a miscarriage of herself or allowing other persons to cause an abortion under the Section 301of the Criminal Code as an explanation tool. Firstly, it was found that Section 301 of the Criminal Code only applies to women with over 12 weeks of pregnancy. The law does not specify whether a woman with a pregnancy up to 12 weeks of gestation is required to be under the care and consultation of a qualified medical practitioner. Moreover, from the information of the Department of Health, Bureau of Reproductive Health in 2019, the live birth ratio of children between the ages of 10 to 14 was found to be 1.1 per 1,000 whereas the live birth ratio of women aged 15-19 years was 31.3 per 1,000. Consequently, since the self-abortion without the supervision and consultation of the medical practitioner is allowed by the law, termination of pregnancy of an underage child could endanger the child or encourage them to opt for illegal clinic service.  Secondly, the Section 305 of the Criminal Code has described the offence exemption for pregnant women with over 12 weeks of pregnancy and medical practitioners, including those performed under the supervision of a medical practitioner. This is subjected to the Medical Council Regulation on Criteria for Termination of a Medical Pregnancy of a Medical Practitioner under Section 305 of the Criminal Code B.E. 2021. In accordance with Article 5 of the Medical Council of Thailand regulations, the termination of pregnancy for women in conditions related to physical or mental disorders that are unable to make their own decisions, the consent of lawful representative or caregiver is required. Based on the regulations of the Medical Council, in case legal representatives or caregivers are not able to give a consent without sensible reason or any conflict of interest is concerned, the pregnancy termination will be legitimately depending on the women’s decision. In addition, the pregnancy termination must be done if there is a mental or physical health risk to the pregnant women in line with the conditions for legal termination of pregnancy under the Criminal Code, Section 305 (1). Besides, according to the Criminal Code, Section 305 (2), pregnancy termination has to be done if there are substantial risks or convincing medical reasons of serious deformities and disabilities to the newborn baby. Therefore, the law should specifically allow legal practitioners to make a decision only in urgent case related to women's health or serious harm. In case of non-urgent condition or non-fatal required pregnancy termination in line with the Criminal Code, Section 305 (2), legal measures by the court as a decision-making mediator must be implemented. Consequently, the judgment of the court can be intentionally expressed the most benefit to the pregnant women as well as the legal resolutions of pregnant women for any argument involving with their physical or mental disorders to the non-consensual pregnancy termination by the medical practitioner.