Ravi Nayak

Nepal is a religious country where the people believe that a child is a gift of God, and thus abortion for them is a heinous act. However, with the modernisation and sensitisation of health and reproductive rights, the perspective on abortion has been evolving.

People have now realised that there is a need to balance culture and current needs, as the medical termination of pregnancy offers a sigh of relief to all those women dying across the nation due to a lack of safe and urgent abortion.
Earlier, Nepal's legal code, known as the Muluki Ain 1854 (2020BS), banned abortion except when the woman's life was at risk. In other cases, the termination of pregnancy was categorised as homicide and Nepal was one of the rarest countries to prosecute and send women to prison under charges of infanticide.

Fundamental Rights
Until the Nepal Abortion Law 2002 was promulgated, up to one-fifth of women were convicted and punished with prison sentences for engaging in illegal abortion acts, with many branded as murderers. The Interim Constitution of Nepal-2007, for the first time, made women's reproductive rights the fundamental right, and the new constitution of 2015 continued the same as the government promulgated the Safe Motherhood and Reproductive Health Rights Act in 2018.

Currently, abortion in Nepal is regulated by the Country Criminal Code 2017 and the Safe Motherhood and Reproductive Health-related act 2018. However, both legislation has criminalised abortion with the provision of a prison sentence except under certain conditions.
The various nation has gradually shifted their legal standing positions on abortion from rigorous strict criminalization to a medical procedure regulated by medical legislation. In 1988, a Canadian court in the case of R vs. Morgentaler where the group of doctors purposefully challenged Section 251 of the criminal code, which deals with abortion. In that case, the court held that the Criminal Code was unconstitutional and violates women's rights under section 7 of the Canadian Charter of Rights and Freedoms, which ensured the right to 'life, liberty, and security of the person.

Punishing women for performing abortions beyond legal requirements cannot be justified as a means to prevent them from performing unsafe abortions. Despite criminalisation, in situations where legal abortion is not available or accessible, women seek the services of illegal providers in illegal settings.

According to a report published by FWLD (Forum for Woman Law and Development), less than half (42%) of all abortions were performed legally in government-approved facilities in Nepal, and the remainder (58%) were clandestine procedures performed by untrained or unregistered providers or by pregnant women self-instituted. These situations have become more urgent during humanitarian crises, including earthquakes and pandemics, such as COVID19.

During these times, the availability and accessibility of essential reproductive health services, including contraception and legal and safe abortion services, are negatively impacted due to mobility restrictions, stress on health facilities and systems, economic challenges, gender, and social inequalities. Conditions also oblige women to seek an illegal and unsafe abortion, even in cases where they are within the legal limits of gestation, and face possible criminal penalties.

Furthermore, the criminalization of abortion violates the enjoyment of constitutionally guaranteed fundamental rights of Nepalese women, including their right to a dignified life, to freedom, to equality, to free basic medical care, and access equal to health services, and to safe motherhood and reproductive health. Criminalization also denies women the right to self-determination in reproductive decision-making, which is protected by the Law SMRHR act (2018), which prescribes abortions as basic medical care that the state must provide free of charge to all citizens.

Nepal's National Health Policy (2019) also focuses on making abortion services they are sure to be of high quality and efficiency. The right of women to abortion as a constitutional right and interprets it as a right to reproductive health, the Supreme Court of Nepal in its landmark judgment Lakshmi v. Government of Nepal, where the court decides that it was "inconsistent and inappropriate" to leave the provisions on the right to abortion in a "severe and rigid penal framework" to enact the comprehensive law on abortion, which incorporates the provisions of international law of human rights related to reproductive health ”.

Decriminalisation
The total decriminalisation of abortion will also comply with the recommendations received by human rights organisations in Nepal. In 2018, the Committee on the Elimination of Discrimination Against Women (CEDAW) expressed concern about the criminalization of abortion in Nepal and urged Nepal to amend the SMRHR act to "fully decriminalise and enforce abortion in all cases legalise. At least if the mother is at risk, in addition to the already legalised cases, which include rape, incest, serious foetal impairment, and danger to the life of the mother, then provide sufficient resources to raise awareness about clinics and services of safe abortion.” In 2021, during the 37th session of the Universal Periodic Review, Nepal urged to "decriminalise abortion and concretely protect the rights and sexual and reproductive health of women and girls."

For Nepalese women to be able to exercise their basic human rights and ensure access to safe abortion services, Nepal must take immediate steps to amend the SMRHR act by expanding the scope of legal abortion by decriminalizing abortion in all cases, including interruption of pregnancy after 28 weeks of gestation if necessary to save the life or health of the woman or girl; or in cases of interruption of pregnancy after 28 weeks of gestation Affiliations with foetal alterations.

To fully decriminalise abortion, concrete measures should be taken to eliminate punitive measures for women who undergo abortions and for the health care providers who provide abortion services, including by repealing the provisions of the criminal law on abortion under the Penal code. Thus abortion should be decriminalised with certain exceptions, like sex-selective abortion, harm to the mother's body with intent to hurt the foetus, and others as a crime.

(The writer is a 5th Year BA and LLB student at National Law School of India University, Bengaluru)