FWLD - Working for Non-Discrimination and Equality

Nepal Vouching to Decriminalize Abortion: Read between the Laws

I am writing this article to reach out to the YOUTHS. To my GENERATION and the next.

Because in the WORLD we live in or the MARKETS we roam about, the odds of knowing about our rights and laws that matter to us and our near ones is extremely rare or next to zero.

I hope this piece is helpful to us – in understanding one single yet crucial issue ‘ABORTION’.

I BET NO ONE HAS TALKED TO YOU ABOUT IT!

The right to ‘safe abortion’ is guaranteed by the Constitution of Nepal as a fundamental right of every woman to ‘safe motherhood and reproductive health’ (Article 38 (2)). This is elaborated by the special legislation passed by the parliament in 2018 called “The Safe Motherhood and Reproductive Health Rights Act” (SMRHR Act).

Under this Act ‘reproductive rights’ not only means direct health services but also the right of every woman and adolescent to receive the necessary information, counseling, and consultation regarding reproductive health. Safe abortion being an inseparable part of reproductive health, is protected as a right by the Act.

However, despite the existence of these seemingly progressive legislations, Nepal’s laws STILL criminalize women for undertaking abortions beyond certain gestational limits.

‘STILL’ – because our laws criminalized abortion in the past and continue to do so.

To understand the laws that specifically criminalize abortion and the legal trend that led to it, it is first important to take a look at our past.

– FIRST A SHORT HISTORICAL BACKGROUND –

The discussion regarding abortion and its importance is not new in Nepal. In 1989 when the multiparty system was re-instated, the civil uprising for gender equality and multiple judicial decisions resulted in historical changes in the field of gender justice and reproductive health.

One of the major changes was the 2002 amendment of the then Country Code, 1963 which for the first time legalized a ‘conditional’ abortion in Nepal. It is also called the 11th amendment. It is important to know that before this, abortion was completely banned and criminalized in Nepal under any circumstances. In a society that viewed abortion as an immoral act and against religious or societal values, the recognition of conditional abortion was a step toward progress!

Abortion, in the Country Code, was placed under the chapter on homicide (murder). Women continued to be imprisoned for abortions done beyond the spelled conditions. Thus, on the one hand, abortion was legalized and on the other hand, it re-instated the social-value system which believed in stunting women’s decision-making and autonomy over their own body.

Later, in 2006 the Interim Constitution of Nepal, adopted during Nepal’s transition phase, protected women’s fundamental right to reproductive health. Over the following years, multiple landmark court decisions sought to effectuate the legally recognized conditional abortion. One noteworthy case is Laxmi v Government of Nepal, 2006.

In the Laxmi case – the court issued a directive order requiring the State to carry out extensive awareness programs regarding the importance of maintaining confidentiality in abortion cases, to eliminate the negative stigma surrounding abortion and educate people about the responsible utilization of safe abortion services, and to provide necessary information to general people. Most importantly, it required the State to enact a separate and adequate law relating to abortion in line with its obligations under international human rights laws – that made safe abortion service accessible, qualitative, and also free. (Full Translation: https://fwld.org/wp-content/uploads/2021/07/Laxmi-dhitta1-endnote.pdf)

Five years after this decision, the current Constitution of Nepal, 2015 was promulgated. It emulated its predecessor, whereby ensuring women’s “safe motherhood and reproductive health” as a fundamental right (Article 38(2)). Additionally, the Constitution requires the State to enact separate legislations to elaborate and implement the fundamental rights – within three years from the promulgation of the constitution (Article 47). This created a conducive environment for the State to expand ‘abortion’ as a right rather than a crime.

Also, the Constitution guarantees basic health care services as the fundamental right of every citizen and that no one should be denied emergency health care (Article 35(1)). Shadowing these positive provisions, the Public Health Act, 2017 ensured “safe abortion service” under its list of ‘basic health services’ which is free and accessible to all.

However, before the separate legislation on reproductive health – came the Country Criminal Code 2017, a general law that replaces the Country Code. This Code gave continuance to the narrow legal provisions of its forerunner that criminalized abortion.

Finally, a year later, the SMRHR Act was enacted – a first-ever dedicated law that protected ‘reproductive health’ and within it ‘safe abortion’ as a ‘right’. According to its preamble, the Act aims to respect, protect and fulfill the reproductive health rights of women. However, despite this progress, the Act contradicts itself when laying down the legal provisions relating to abortion. In fact, the Act is even more regressive than the previous Country Code and the current Criminal Code. It not only fails to de-criminalize abortion but instead places stricter conditions on abortion rendering a women’s decision to end her pregnancy a crime against the State.

The following section explains -three legal pieces of evidence- that blatantly imprison a woman for undertaking an abortion even when her life is at stake.

Table: provisions of Country Code 2020 – Criminal Code 2017 – SMRHR Act 2018

Conditions Previous Country Code 2020 Current Criminal Code, 2017 Safe Motherhood and Reproductive Health Rights Act
On Consent of a pregnant woman 12 Week 12 Week 12 Week
In cases of Rape or Incest 28 Weeks with the consent of a pregnant woman 18 Weeks with the consent of a pregnant woman 28 Weeks with the consent of a pregnant woman
Where danger to the life of a pregnant woman or her physical or mental health may deteriorate, if a disabled infant may be born in case the abortion is not performed Any time during pregnancy, with the opinion of the certified doctor Any time during pregnancy, with the opinion of the certified doctor 28 Weeks, with the opinion of the certified doctor
In cases where the woman is suffering from incurable diseases such as HIV Positive Any time during pregnancy, with the women’s consent 28 Weeks, with the women’s consent
Where damage may occur in the womb due to defects occurring in the fetus, and it cannot live even after birth if there is any condition of disability in the fetus due to genetic defects or other causes. 28 Weeks, with the opinion of the health service provider involved in the treatment and consent of a woman
  • LEGAL PROVISIONS THAT CRIMINALIZE ABORTION –

 [First – Continuance of abortion under criminal law]

Let us address the common concern first: No one argues that anyone who forces a pregnant woman to undergo an abortion against her will should be punished.

The major concern is whether or not a woman should be subjected to punishment.

As mentioned above, Nepal has two laws that simultaneously talk about abortion. In such cases, the specific legislation always prevails over the general one. i.e., The SMRHR Act comes first in the hierarchy in issues related to safe motherhood and reproductive health rights.

Instead of taking advantage of this hierarchy to withdraw the issue of abortion from under the claws of a criminal offense, the Act refers to the provisions of the Criminal Code for the punishments in abortion-related cases.

Furthermore, the fact that the Act gives continuance to the law that punishes a woman for undergoing abortion irrespective of whether the pregnancy was forcefully ended or not, establishes ‘abortion’ as a criminal offense. This has caused many women and girls to accept imprisonment or seek unsafe means to end their unwanted pregnancy that may result in their own death or a major deformity of the child born!

Thus, SMRHR Act promises the protection of reproductive health as a right and at the same time provides stringent punishment to a woman undertaking abortion. Moreover, it overrides the Constitutional guarantee of ‘safe motherhood and reproductive health’ as a fundamental right.

 [Second – Strict ban on abortion above 28 weeks under any circumstances – with strict criminal prosecution and punishment]

The SMRHR Act strictly bans abortion in gestation above 28 weeks. This is against the legal provision of the Criminal Code that allows abortion at any time in cases such as – if the abortion is not sought, the life of a pregnant woman will be in danger or it is harmful to her physical or mental health. Contrary to this, the SMRHR Act penalizes abortion even if a pregnant woman or the child born is at risk of death!

Additionally, the law obligates women to seek abortion only from the listed/certified doctor in a certified health institution. The objective here may be to protect against unsafe abortion –but the consequences of current stringent laws are quite the opposite. First, the government itself is lagging behind in implementing the certification of capable service providers and health institutions to provide abortion services. In areas where a woman is not able to find a listed health institution ‘and’ service provider, she is either forced to continue her unwanted pregnancy or risk an unsafe abortion or accept abortion from an uncertified (through capable) site and provider and later risk a criminal punishment!

[Third – Unclear definition of abortion]

 Another legal gap exists in the DEFINITION itself.

The SMRHR Act defines abortion as the “act of fetus coming out or taking it out of the womb before the fetus becomes capable of being born naturally”

One may see no issues with this definition. But upon a closer look – you won’t even need legal glasses to spot the problem!

To break down the definition – ‘..act of fetus coming out..’ refers to a condition when the pregnancy ends naturally or spontaneously. It is also called ‘miscarriage’. Whereas, ‘..the act of taking it out of the womb..’ refers to induced abortion done with the help of external means such as medicine or medical procedure.

The fact that the law defines both miscarriage and induced abortion as the same is problematic for the reason that the same law also punishes abortion beyond 12 weeks of gestation (in normal condition) and beyond 28 weeks (in the other four conditions). This means that, even if a woman suffers a miscarriage between the banned gestation limits, she is punishable under the law.

This needs to be amended!

– Nepal’s International Obligation and Commitments –

The Constitution of Nepal has realized and guaranteed the fundamental rights of each citizen to a dignified life, rights against untouchability and discrimination, right related to confidentiality, right against torture, rights related to health, rights of women, and within it the right of women to safe motherhood and reproductive health rights.

As such, denying a woman from acquiring information about her reproductive health or denying her a safe abortion service means not only depriving her of the obvious services but also entails a violation of her other fundamental rights – depending on the nature of deprivation.

The Constitutional protection of these rights is in line with Nepal’s obligation and commitment under multiple international laws and instruments which it has either ratified (as a State party) or agreed to abide by.

An important international document one should refer to when trying to understand what ‘reproductive health right’ actually include is the Program of Action of the United Nations (UN) International Conference on Population and Development (ICPD) held in Cairo on 1994. It states that,

Reproductive Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all the matters relating to the reproductive system and to its functions and process reproductive health, therefore, implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.”

Besides the Cairo Program of Action, there are multiple other international treaties and conventions that Nepal is a state party to and which fervently protect reproductive health rights. Some noteworthy conventions are:

The International Human Rights Declaration, 1948: Everyone has the right to life, security and freedom from cruel, inhuman, and degrading treatment.

The International Covenant on Economic, Social and Cultural Rights, 1966 and the International Covenant on Civil and Political Rights, 1966: All people have the right to self-determination.

Convention on the Rights of Child: obligates all state parties to ensure all necessary services and take all necessary actions to address the issues surrounding infant mortality.

Convention on the Elimination of all forms of Discrimination against Women (CEDAW): Requires all State parties, for the establishment of the principle of equality, to repeal any laws, practices, and traditions that are discriminatory towards women. It also requires states to ensure equality in terms of women’s decision to bear a child and birth spacing.

Also, CEDAW Committee’s Recommendation No. 19 maintains that no woman should be forced to accept an abortion that involves illegal and unsafe medical procedures.

In this regard, it is essential that no compromise is made in respecting, protecting, and fulfilling the reproductive health rights of women. If any woman is denied her legally guaranteed rights, then under international laws, it is considered to be discrimination against women done by the State.

Recommendations provided to Nepal by CEDAW Committee through Concluding Remarks in Nepal’s Sixth Periodic Report Recommends Nepal to abide by Sustainable Development Goal (SDG) No. 3.1 (Reduction of mortality rate) and SDG No. 3.7 (Access to Sexual and Reproductive Health Rights). The specific recommendation reads as bellow:

  • Not to criminalize women in any case of abortion
  • To amend the SMRHR Act to ensure that abortion, in cases of rape/incest, in cases where there is danger in women’s life and health, also be allowed without any upper limit.
  • To manage adequate resources to spread awareness regarding abortion services and health institutions where it is available.

Nepal’s Third Universal Period Review, 2021: This report after being presented to the Human Rights Council, received various recommendations. One of the major recommendations provided was to Decriminalize abortion and concretely protect the rights and sexual and reproductive health of women and girls.

Nepal Government has decided to fully accept this recommendation. Thus, in order to fulfill its commitment made in such an internationally accepted universal periodic report, it has become essential for Nepal to amend its laws to decriminalize abortion.

– Conclusion –

Thus, unlike other reproductive health rights services, abortion rights come with a condition that bans it beyond certain gestational limits. This is despite the fact that it is established as a fundamental right by the constitution, judicial precedents, and international laws. If performed beyond the legal limits, a woman is subjected to criminal punishment. Thus, in most cases of unwanted pregnancy, especially in conception resulting from rape or incest or where a woman’s life or health is at risk or where there is a pre-knowledge that the child born may have a disability due to genetic or other defects or may not live even if given birth, a woman is left with three options after crossing 28 weeks gestational limit: first, to end such pregnancy through unsafe means and risk dying; second, to seek abortion and risk going to the prison, and third to continue such unwanted pregnancy and bear the consequences of death, or mental or physical harm.

– Solution –

  • The SMRHR Act should include the punishment clause in the Act itself rather than referring to the Criminal Code.
  • The Act should itself lay down the punishment in cases of forced abortion.
  • The Act should remove the 28 weeks limitation in acquiring safe abortion in certain cases where abortion becomes mandatory for a woman’s life or health or the life and health of the fetus.
  • The punishment should exclude women undergoing abortion from imprisonment or any form of stringent legal action.
  • The legal definition of ‘abortion’ should be revised and ‘miscarriage’ should be defined separately from ‘induced abortion’

Hopefully, you enjoyed the read and hope that it was helpful in some way!

Shutting off for now, with a promise to write about more such issues in the future.

 

Keep learning. Keep growing. Keep shining. With empathy and kindness.