Ensure Women's Reproductive Rights

Nepal’s commitment to women’s reproductive rights has been strengthened by the Constitution of Nepal (2015), which guarantees safe motherhood and reproductive health rights as fundamental rights of women. Through this provision, the country has further reinforced the commitments it had previously expressed regarding women’s reproductive health rights. To implement these constitutionally guaranteed fundamental rights, Nepal took a historic step by promulgating the Safe Motherhood and Reproductive Health Rights Act (SMRHR) on October 18, 2018, as an umbrella law. 

The SMRHR Act was intended to respect, protect, and safeguard women’s reproductive health rights and recognise access to abortion as a right to reproductive health. But since the Act has failed to fully decriminalise abortion, women have faced a continued risk of prosecution for abortion care. The National Penal Code allows abortion at any time if continuing the pregnancy poses a risk to the pregnant woman’s life, may seriously harm her physical or mental health, or may result in fetal impairment. Due to a contradiction between two laws, there is difficulty in the implementation of the Act. 

International convention 

Besides, Nepal is a party to different international conventions, including Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW), the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) and its General Recommendation No. 14, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the Convention against Torture, 1990 (CAT). The CEDAW committee recommended that Nepal fully decriminalise abortion in all cases and legalise it at least in cases of risk to the health of the mother. This also applies to cases of rape, incest, and severe fetal impairment. 

The World Health Organisation Abortion Care Guideline, 2022, recommends the full decriminalisation of abortion. It states that decriminalising abortion means there should be no criminal law or penalty associated with abortion care. Likewise, Universal Periodic Review fourth cycle recommended that the Nepal government decriminalise abortion in all circumstances and provide it with legal recognition. The 8 March Principles for a Human Rights-Based Approach to Criminal Law for Sexual, Reproductive, and Other Conduct have been established. Under them, Principle 15 includes the issue of decriminalising abortion services, including the provision that no one should be held criminally liable for abortion or stillbirth, abortion resulting from emergency obstetric conditions, or the act of procuring an abortion. 

Unfortunately, the government has failed to decriminalise abortion despite various international recommendations, resulting in many girls and women facing punishment and suffering due to a lack of legal clarity, says Navin Kumar Shrestha, legal advisor of Forum for Women, Law and Development. 

As Shrestha claimed, there is evidence of suffering caused by the legal gaps.  Take this case: an 18-year-old young woman from Dailekh who had been living and studying in Birendranagar, Surkhet, and a 17-year-old young man from Dolpa had been in a relationship for about one and a half years. Despite taking precautions, the young woman unexpectedly became pregnant. While living in Surkhet and struggling with dreams of pursuing education and building a future, they decided not to get married immediately and opted for an abortion. 

However, after the case came in the notice of locals, the abortion incident was criminalised. Members of the community themselves called the police and accused them of immoral conduct. 

At a time when the young woman should have been resting and eating nutritious food after the abortion, the police arrested her and took her into custody. Following the police investigation, cases were filed against the young woman, the young man, and the medical shop operator on charges of conducting an illegal abortion. 

In another case, a 25-year-old man from Kanchanpur and a local single woman had established an intimate relationship. The man worked in house construction, and they became acquainted in the course of that work. They had been in a relationship for about three years, and the woman became pregnant. This issue caused turmoil in their lives. Even arranging an abortion was not easy for them, so they went to the hospital cautiously posing as husband and wife. Although they had not even planned to get married, they went to the hospital and underwent an abortion at eight weeks of pregnancy by registering themselves as husband and wife. However, due to excessive bleeding, the woman’s family came to know about it. After that, the matter reached the police and eventually the court.

Not only the physical relationship but also the abortion had taken place with the consent of both of them. However, due to the fear of social stigma faced by the woman and the existing abortion-related laws, the woman accused her lover of committing rape and forcing abortion. The police filed the case accordingly. The court acquitted the young man on the accounts of rape, but found him guilty of causing an abortion and sentenced him to one year of imprisonment and a fine of Rs. 7,000. 

Immoral act 

There was a time when abortion was considered a sin from a religious perspective, an immoral act socially, and a crime legally. However, it has now been 23 years since abortion gained legal recognition. While safe abortion is being established worldwide as a woman’s reproductive right, in Nepal, the social stigma imposed on women simply for having an abortion has not diminished. The examples mentioned above illustrate the kind of legal practice that is taking place. Patriarchal thinking and the current laws have posed as obstacles to women’s rights over their own pregnancies. Women are being criminalised by treating cases of spontaneous miscarriage and premature stillbirth as offences of abortion. 

The decision of whether to give birth or not should rest with the woman. But here, even if a woman miscarries, they are sent to prison.  This requires amending contradictory and ambiguous laws so that women can enjoy their right to sexual and reproductive health and Nepal fulfill its constitutional and international human rights obligations.

(Dhakal is a journalist at this daily.)