SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Indonesia’s Constitution recognises the right to health as a fundamental right. Article 28H
states that, “Every person shall have the right to… to enjoy a good and healthy environment,
and shall have the right to obtain medical care.”
The Constitution of Thailand recognizes the ‘Rights to Public Health Services and Welfare’
and provides that, “Every person shall enjoy equal rights to receive appropriate and standard
public health service, and the indigent shall have the right to receive free medical treatment
from a State infirmary. A person shall have the right to receive comprehensive and efficient
public health services from the State. A person shall have the right to enjoy the prompt
prevention and eradication of harmful contagious diseases from the State free of charge.” 648
The only Constitution to specifically recognize reproductive rights is the Interim Constitution
of Nepal which states that, “every woman shall have the right to reproductive health and
other reproductive matters.” 649
While the Constitutional foundations for the right to health exist to varying degrees, they
have not necessarily been used to promote access to health services in the context of sexual
health.
6.1 Abortion
Several of the research countries continue to have highly restrictive legal provisions in
relation to abortion.
Sri Lanka’s Penal Code provides that any person who voluntarily induces the miscarriage of
a foetus (including the woman concerned), unless it is done in good faith in order to save the
woman’s life, is liable to imprisonment. 650 This penalty increases to up to twenty years if such
miscarriage is committed without the consent of the woman. 651
Indonesia’s Penal Code contains several provisions criminalizing abortion and the provision
of abortion services. It punishes the woman (if there is deliberate intent; punishment 4 years)
as well as any person who causes the abortion (without consent 15 years, with consent 5
years). 652 Higher punishment if it results in the death of the woman. A physician, midwife or
pharmacist who is an accomplice enhanced punishment and deprived of profession. Although
the Penal Code provides no exceptions, Indonesia’s Law concerning Health No. 36/2009
provides limited circumstances in which abortion can be carried out i.e. “medical emergency
Internally Displaced Persons,” Human Rights Commission of Sri Lanka, March 2009 at page 22, available at
http://www.idpsrilanka.lk/Doc/ResearchPub/Right_to_Health_of_Internally_Displaced_Persons.pdf
648 Section 50(1), Constitution of Thailand, 2007. Section 80(2) of the Directive Principles of Fundamental State
Policies direct the State to, “Section 80(2): (2) to promote, support and develop a health system with emphasis
on health promotion for sustainable health conditions of the public, including the provision and promotion of
people’s access to comprehensive and efficient standard public health services and encouraging private sector
and the communities in participating in health promotion and providing public health service, and the person
having duty to provide such service whose act meets the requirements of professional and ethical standards shall
be protected as provided by law;
649 Article 20, Interim Constitution of Nepal, 2007
650 Section 303, Penal Code, 1883 (Sri Lanka)
651 Section 304, ibid.
652 Article 346 of the Penal Code of Indonesia provides that ”Any woman who deliberate intends, causes or lets
another cause the drifting off to death of the fruit of her womb, shall be punished by a maximum imprisonment
of four years.” See also Articles 347 and 348 for the punishment of person causing the abortion.
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