Abortion law reform in Nepal Melissa Upreti PII: DOI: Reference:
S0020-7292(14)00245-8 doi: 10.1016/j.ijgo.2014.05.001 IJG 7979
To appear in:
International Journal of Gynecology and Obstetrics
Please cite this article as: Upreti Melissa, Abortion law reform in Nepal, International Journal of Gynecology and Obstetrics (2014), doi: 10.1016/j.ijgo.2014.05.001
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ACCEPTED MANUSCRIPT ETHICAL AND LEGAL ISSUES IN REPRODUCTIVE HEALTH
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Abortion law reform in Nepal
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Center for Reproductive Rights, New York, NY, USA
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Melissa Upreti *
* Center for Reproductive Rights, 120 Wall Street, New York, NY 10005, USA. Tel.: +1
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917 637 3600; fax: +1 917 637 3666.
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E-mail address: [email protected]
Keywords: Abortion; Lakshmi Dhikta judgment; Nepal; Rights to abortion; Rural
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women’s rights; Supreme Court of Nepal
Synopsis: By reforming its constitution, criminal law, and Supreme Court rulings, Nepal has evolved democratically to recognize women’s rights to lawful abortion, including for poor women.
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ACCEPTED MANUSCRIPT ABSTRACT Across four decades of political and social action, Nepal changed from a country
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strongly enforcing oppressive abortion restrictions, causing many poor women’s long
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imprisonment and high rates of abortion-related maternal mortality, into a modern democracy with a liberal abortion law. The medical and public health communities
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supported women’s rights activists in invoking legal principles of equality and non-
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discrimination as a basis for change. Legislative reform of the criminal ban in 2002 and the adoption of an Interim Constitution recognizing women’s reproductive rights as
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fundamental rights in 2007 inspired the Supreme Court in 2009 to rule that denial of women’s access to abortion services because of poverty violated their constitutional
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rights. The government must now provide services under criteria for access without charge, and services must be decentralized to promote equitable access. A strong legal
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foundation now exists for progress in social justice to broaden abortion access and reduce abortion stigma.
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ACCEPTED MANUSCRIPT 1. Introduction Nepal is a landlocked country located in the Himalayas, home to approximately 30
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million people, 80% of whom reside in rural settings. There have been some
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improvements in the health status of the poor and marginalized, with an overall 10% decline in poverty between 1996 and 2004, and a general increase in the utilization of
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health services. Nevertheless, disparities in access to health care persist, which are
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deeply accentuated by a range of socioeconomic and geographic factors [1] (p.1). Most rural households continue to lack access to basic healthcare services, sanitation, and
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safe drinking water [2] (p.1). The rural health infrastructure is inadequate and trained service providers are scarce. The mountainous terrain impedes physical access to
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health services in many parts of the country, which translates into poorer health
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indicators for people residing in remote areas.
Certain basic health services including contraceptives are offered by the government at no cost, but incidental costs associated with the travel required to access these services and a general lack of information about the types of commodities and services offered by the government make them inaccessible in practice. Socially marginalized and lowincome populations are frequently deterred from seeking health services because of the poor attitudes of health service providers, many of whom lack the compassion, motivation, skills, and training to provide quality health care to the socially disadvantaged and poor. Further, specific historical and cultural factors make gender a crucial determinant of health care in Nepal. Nepalese society is fundamentally patriarchal, where women are considered subordinate to men. Women’s reproductive
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ACCEPTED MANUSCRIPT functions associated with childbearing are traditionally viewed as an obligation, and
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women’s destiny.
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Unsurprisingly, the status of women’s reproductive health is a major concern: only 43% of married women use a modern method of contraception [3] (p.95); each week, about
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42 women die of pregnancy-related causes [1] (p.1); there are over 600 000 reported
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cases of uterine prolapse [4]; and unsafe abortion is the third leading cause of maternal
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death in Nepal [5] (p.9).
2. Impact of the criminal ban on abortion
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Nepal was officially a Hindu Kingdom until 2008 and the former sweeping criminal ban
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on abortion is an extreme expression of Nepal’s traditional patriarchal history and
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mindset. Abortion was criminalized in Nepal through the Country [criminal and civil law] Code of 1854, although informal punishments for abortion existed prior to the codification of the ban. The premise of the ban was religious. Abortion is deemed a sin in Hindu religious texts and women who have them may be ostracized.
The 1854 Country Code was subsequently revised in 1963 [6], but the criminal ban was retained with the exception that there would be no criminal liability for an abortion performed as an act of benevolence [6] (section 28). Since this exception was never clarified, it offered no practical recourse for women.
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ACCEPTED MANUSCRIPT The criminal ban resulted in negative consequences for women and burdened the health system as a whole. By the early 1990s there were ample studies and data
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demonstrating these negative outcomes. First, the ban contributed directly to Nepal’s
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high maternal death rate; studies showed that complications from unsafe abortion resulted in over half of all hospital maternity deaths [7]. Second, it resulted in the routine
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imprisonment of women on charges of abortion, which was frequently conflated with
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infanticide—a crime punishable with life imprisonment [8]. Third, it created a strain on the nation’s fragile health system, as complications from unsafe abortion became the
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3. The motivations for change
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leading cause of hospital admissions (54%) [9] (p.67).
The motivation for law reform came from various quarters, and evolved over a period of
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more than four decades before successfully culminating in law reform in 2002. The most significant challenges to the ban came from the medical community, the public health community, and the women’s rights movement, although each community was motivated by different considerations.
3.1. Medical community The harmful impact of the criminal ban was not lost on medical professionals, who recognized that unsafe abortion procedures that included, for example, the insertion of cow dung and sticks into the uterus, were forcing women to put their health and lives at risk and seek urgent medical care for complications from botched procedures. In 1968, the Nepal Medical Council introduced regulations [10] that included a provision that
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ACCEPTED MANUSCRIPT would allow medical practitioners to perform abortions in circumstances where a pregnant woman’s life or health was at risk and in cases of fetal impairment [10]
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(section 22(j)). While this provision was introduced to justify the performance of
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abortions by medical professionals on certain grounds, and to offer some protection to providers from criminal liability, rules issued by the medical council do not supersede
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national law. It is unlikely that the 1968 regulations could in fact have shielded a medical
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provider from criminal prosecution for an illegal abortion in an actual case. Nonetheless, the formal introduction of this rule did constitute a symbolic rejection of the strict criminal
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ban by the nation’s respected community of medical professionals.
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Down the years, a few compassionate doctors, including members of the Nepal Society of Obstetricians and Gynaecologists (NESOG), started publicly expressing the need for
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exceptions to the ban in the interest of women’s health. There were some reputable medical professionals who even performed abortions and were not pursued by law enforcement officials because of their elite status. The women who sought services from these doctors were primarily urban-based and educated, and had the financial resources to circumvent the law. This scenario coexisted with a sizeable number of untrained providers who catered to women—mostly rural, uneducated, and poor—who were willing to take immense risks to terminate their unwanted pregnancies, and who were often the ones to either be imprisoned or die. This dichotomy reflects the grim reality that the negative impact of the criminal ban was felt the most by socially disadvantaged and poor women.
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ACCEPTED MANUSCRIPT 3.2. Public health community The public health community has played a key role in exposing the harmful impact of
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the criminal abortion ban and in pushing for legal reform. By the early 1990s, there was
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compelling evidence pointing to unsafe abortion as the leading cause of maternal mortality in Nepal [7]. In those years, Nepal had a maternal mortality ratio (MMR) of 850
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per 100 000 live births [11] (p. 45), and each year over 4000 women died of preventable
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pregnancy-related causes [9] (p.75). Hospital-based studies showed that women with severe complications from unsafe abortion were being admitted in significant numbers,
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and many of them could not be saved [7]. The majority of women who underwent induced abortion were between 20 and 45 years of age, and already had 2−3 children,
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indicating that abortion was being used as a method of family planning and in many
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instances to space pregnancies [12] (p.4).
In 1997, draft legislation aimed at amending the criminal ban and establishing a broad framework for abortion service provision, The Pregnancy Protection Bill of 1996, was tabled in parliament under the leadership of a former chairperson of the Family Planning Association of Nepal (FPAN). While tabling the Bill in parliament represented a collective effort, his inspiration to lead the effort came, by his own account [13] (p.44), from two sources: First, insights he had gained into the shocking realities of women’s reproductive health status in Nepal through his work at FPAN; and, second, a deeper understanding of women’s reproductive health issues in the broader context of development, acquired through his participation in the UN International [Cairo] Conference on Population and Development in 1994 [13] (p.44). The Bill lapsed in
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ACCEPTED MANUSCRIPT parliament in 1999, but the public health community’s efforts toward legalization
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continued.
Notwithstanding the criminal ban, there were some government officials who
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understood the nature of the devastating impact of the ban on women’s lives. For years,
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certain organizations were allowed to provide safe abortion services in the form of
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menstrual regulation while high-level officials in the Family Health Division of the
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Ministry of Health essentially turned a blind eye.
3.3. Women’s rights movement
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The role of the women’s rights movement in Nepal’s historic process of abortion law
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reform is significant. Following Nepal’s political transition to a parliamentary democracy
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and the adoption of a new constitution in 1990, which recognized the right to equality as a fundamental right and prohibited discrimination based on several grounds including sex, a series of public interest cases was filed in an attempt to systematically dismantle laws that had for centuries discriminated against women. Among these cases was Meera Dhungana v. Ministry of Law, Justice and Parliamentary Affairs [14], a case that challenged the nation’s discriminatory ancestral property laws and became the precursor of the 11th Amendment to the Country Code, which in 2002 legalized abortion on broad grounds. The women’s rights movement included abortion in its agenda for legal reform, framing the abortion ban as a form of discrimination against women. Many women’s rights advocates relied on the compelling evidence presented by public health
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ACCEPTED MANUSCRIPT data to come forward and demand the legalization of abortion as a matter of women’s
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health and survival.
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The routine imprisonment of women for abortion, and the release of a study in 2000 showing that around 20% of women—predominantly from rural areas, poor and
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uneducated—in the nation’s prisons were incarcerated for abortion or infanticide,
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exposed the broader injustice of the ban [8]. Human rights violations documented through a fact-finding mission conducted by women’s rights organizations in 2001
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provided women’s rights activists with hard evidence of violations of women’s rights to due process in the enforcement of the criminal ban, in addition to violations of a broad
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range of civil, political, economic, and social rights under international law [15]. This
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evidence was utilized by women’s rights activists to bolster their demands for abortion
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law reform as a matter of women’s autonomy, dignity, social justice, and human rights.
4. The amended criminal ban
The criminal ban on abortion prevailed in Nepal for well over a century before it was finally amended in 2002. The amendments made it legal for abortion to be performed on several grounds: within the first 12 weeks upon request; within 18 weeks in cases of rape or incest; and at any time during the pregnancy if it posed a risk to the life or health (physical or mental) of the pregnant woman, and in cases of fetal impairment [16]. These provisions can be found in the Country Code in the Chapter on Homicide, which still contains a general prohibition on abortion and deals with crimes such as murder and infanticide. These amendments were followed by the introduction of safe abortion
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ACCEPTED MANUSCRIPT policies and procedures, which together constitute the current framework for the
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provision of abortion services.
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5. The current impetuses for further advancement of women’s abortion rights 5.1. Interim Constitution of 2007
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The Interim Constitution of Nepal 2007 marked the end of a decade long peoples’
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movement, also known as the Maoist insurgency, and brought with it the recognition of some new fundamental rights. The Interim Constitution of Nepal establishes the right to
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health as a fundamental right of all citizens, which includes the right to “basic health services free of cost from the State as provided for in the law” [17] (Art. 16(2)). It
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specifically recognizes women’s reproductive rights as fundamental rights [18] (Art. 20(2)). It further recognizes the right to equality [17] (Art.13), and the specific right of
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women not to be discriminated against on the basis of gender [17] (Art. 20(1)), as fundamental rights. The Interim Constitution places strong emphasis on the inclusion of historically marginalized and disempowered groups in political processes, and guarantees a fundamental right to social justice, which establishes the right of participation of marginalized groups, including women, in state structures [17] (Art.21).
Since the adoption of the Interim Constitution [17], the Ministry of Health and Population has developed strategies and policies that specifically note the constitutional recognition of health as a fundamental right. The Nepal Health Sector Programme-2 (NHSP-2) outlines three core objectives: to increase access to and utilization of quality essential health services; to reduce cultural and economic barriers to accessing healthcare
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ACCEPTED MANUSCRIPT services and reduce harmful cultural practices in partnership with non-state actors; and to improve the health system to achieve universal coverage of essential health services
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[1] (p.ii). The NHSP-2 specifically envisions promoting women’s access to health
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services and promoting a human rights-based approach to health, which includes a focus on improving provider/client relationships [1] (p.13). It includes abortion and
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contraception in its list of issues guiding its strategic direction [1] (p.13).
Social health protection is a dominant theme in the current health policy discourse,
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recognizing the reality that for services to be accessible, they must be affordable. Notable efforts that have been made in recent years to increase access to free health
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services include the scaling up of a pilot maternity incentive scheme, which since 2009 has offered free childbirth services in all public health facilities and partner health
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facilities [1] (p.6). This measure is considered to have contributed significantly to the overall decline in maternal mortality in Nepal, which the government has prioritized to meet its commitment under the Millennium Development Goals. Currently, Nepal is considered likely to achieve its target MMR of 213 by 2015, although there are notable disparities in MMR between rural and urban settings and by various social and age groups [11] (p. 45-6). The legalization of abortion is also recognized to have contributed to the notable reduction in maternal mortality, with an estimated 280 000 women having utilized safe abortion services since 2002 [1] (p.7).
Another notable aspect of health policy development in Nepal is the recognition that the right to health cannot be realized without taking into account unequal power relations
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ACCEPTED MANUSCRIPT between men and women, and the specific needs of poor, vulnerable, and marginalized social groups, which significantly includes women. In 2009, the government introduced
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a Health Sector Gender Equality and Social Inclusion Strategy, which builds on the changed political context to call for stronger integration of a gender perspective in health
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care, and is clearly anchored in the Constitution’s recognition of a fundamental right to
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health [18]. The policy recognizes familial and societal discrimination as factors that
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undermine women’s access to health care and result in poor health outcomes [18] (p.2). One of the potential challenges that have been identified in implementing the strategy is
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service providers’ discriminatory behavior toward poor, vulnerable, and marginalized
5.2. The Dhikta decision
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groups, which significantly includes women [18] (p.22).
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The Supreme Court decided the case, Lakshmi Dhikta v. Government of Nepal in 2009, [19] in which it recognized a constitutional right to abortion [20]. Lakshmi Dhikta was a mother of five from Dadeldhura, in Western Nepal, who sought termination of her sixth pregnancy. She and her husband went to a government hospital to obtain an abortion, but were not able to get the procedure because they were unable to pay the service fee of approximately 1130 rupees (US $12). Lakshmi Dhikta’s story is all too common in Nepal owing to widespread poverty and inadequate access to contraceptive information and services. Her case was therefore filed as a public interest case.
The Dhikta decision recognizes the denial of access to abortion because of its unaffordability as a violation of women’s constitutional rights. On the issue of
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ACCEPTED MANUSCRIPT affordability in particular, the Court notes that cost should be determined on the basis of an individual’s ability to pay [19] (para 100), and that where poverty is a bar to access,
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the government must take steps to provide abortion services without charge, including
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by clarifying the criteria for free services, the process for obtaining free services, and where they will be offered [19 (para 67). The Supreme Court further notes the need to
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increase the number of abortion service providers and to prevent their concentration in
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urban areas [19] (para 63).
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The Court uses the systemic failures that led to denial of abortion in Lakshmi Dhikta’s case to make a more general point about the health system as a whole: that there are
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not enough hospitals and health centers that focus on and cater specifically to women’s health needs [19] (para 69). The gravity of these systemic gaps and failures is
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underscored by the Court’s emphasis on the right to health being linked to the right to life, and on the state’s constitutional duty to protect certain fundamental rights specifically in relation to women, which include their reproductive rights, as recognized in the Interim Constitution’s Article 20(2). The Court notes that the formal recognition of these rights as fundamental makes it the primary duty of the state to prioritize their implementation [19] (para 70).
6. The paradigm shift The recognition of women’s reproductive rights as fundamental rights and, more specifically, of abortion as a constitutionally protected right, represents a profound paradigm shift in Nepal, where patriarchy once ruled and childbearing was generally
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ACCEPTED MANUSCRIPT considered to be a duty that a woman must bear at any cost. Speaking of the current context in Nepal, the Supreme Court observed in Dhikta that “[i]n this changed context,
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the recognition of women’s reproductive health and abortion [rights] calls for a different
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way of thinking” [19] (para 88).
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The Supreme Court’s analysis of the implications of failing to ensure women’s access to
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abortion can be a helpful guide in embracing a new way of looking at abortion. In its analysis, the Court looks at abortion from both individual and societal perspectives. On
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an individual level, the Court recognizes that denying a woman the right to terminate her pregnancy results in forcing her to carry an unwanted pregnancy to term, which is unjust
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in itself and violates a broad range of individual rights guaranteed by law. According to the Court, while pregnancy may be viewed as an honorable act, it cannot be considered
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a woman’s obligation [19] (para 32). On a societal level, the Court recognizes that while abortion is a private matter, considering Nepal’s recognition of the right to social justice as a fundamental right, it is not possible as a matter of social justice for the state to dissociate itself from issues that arise when women’s abortion rights are denied [19] (para 75). It is the state’s duty to ensure that women have access to abortion services by making them affordable, and establishing the necessary infrastructure, human resources, protocols, and funding.
Further, the Court frames pregnancy as a woman’s right and privileges women’s autonomy and bodily integrity over cultural stereotypes that equate womanhood with motherhood. This reflects the Court’s understanding of how stereotypes and socialized
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ACCEPTED MANUSCRIPT roles lead to women’s lack of control over their fertility. The Court deepens its analysis by characterizing forced pregnancy resulting from the denial of abortion as a form of
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violence against women and recognizing it as a source of inequality between men and
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women [19] (para 38). The recognition of these multiple dimensions of women’s abortion rights signals a radical shift in the conceptualization of abortion purely as a
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crime, to regarding abortion as a matter of substantive equality for women.
The Supreme Court addresses the stigma of abortion stemming from societal norms
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and the criminalization and lengthy punishment of abortion under the Country Code. The current legal framework for abortion is essentially made up of the amended
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provisions of the former ban, which still contain a general prohibition of abortion while allowing it on broad grounds. These provisions are located in the chapter of the Country
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Code that deals with serious crimes including murder and infanticide, giving all abortions a general aura of criminality. As noted by the Court, considering the societal evolution of views on abortion, it is no longer appropriate to regulate abortion through this chapter of the Country Code [19] (para 89).
7. The way forward Abortion law reform has been a complex process in Nepal. What started as an effort to address a major public health concern evolved into a much broader movement to end discrimination against women. The negative consequences of the ban on women’s search for health and survival through safe termination of pregnancy, and the routine incarceration of women, made a very compelling case for change that helped to bring
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ACCEPTED MANUSCRIPT many different stakeholders together. Nepal’s experience clearly shows that the criminalization of abortion does not stop abortions from happening, but leads to multiple
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violations of women’s rights.
Also evident from the Nepal experience is that law reform is not enough in itself to make
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abortions safe and accessible. Law reform is just the beginning of the story; it must be
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followed by robust protocols that establish a clear and adequate framework for service provision and funding. For example, this could include improving availability of and
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access to medication abortion by enabling midlevel providers to supply the drug,
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especially in rural areas [21].
In Nepal, it was eventually through public interest litigation that the actual scope of the
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right to abortion was clarified, and the inadequacy of existing protocols and programs was formally recognized. This legal process yielded a decision that has now broadened the premise for creating a more robust legal infrastructure for women’s abortion rights, through the introduction of a comprehensive law that will go beyond establishing the legal grounds for abortion to clarify the rights and duties of service providers in relation to women seeking the procedure, create legal avenues for women who are denied abortion services, and provide a basis for seeking adequate government funding to ensure equitable access to quality abortion services.
In countries where abortion has been criminalized for a long time, abortion stigma is pervasive. Changes in attitudes among policymakers and service providers are needed
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ACCEPTED MANUSCRIPT to ensure that abortion access is sufficiently prioritized within the health system and that
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women are encouraged to seek services when they need them [22].
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Health service providers are in key positions to help women overcome barriers to abortion, by recognizing and exposing these barriers and advocating for positive change
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within the health system; for example, by working with government agencies to make
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abortion services affordable, ensuring the provision of quality care, supporting the adoption of comprehensive abortion legislation that will provide adequate protection for
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women’s rights in the provision of abortion services, and promoting a conducive environment for women seeking abortions that is non-judgmental and compassionate.
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Active engagement in these activities can enable medical professionals to fulfill their
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ethical obligation to become advocates for women’s health [23].
In countries like Nepal, where women’s vulnerability to unintended pregnancy and unsafe abortion is associated with multiple factors including their geographic location, lower levels of income and education, underlying gender discrimination, unequal power dynamics, and government failure to adequately prioritize women’s reproductive health, particularly access to contraception, changes in historical attitudes and public advocacy are needed to ensure that the legalization of abortion actually helps save women’s lives and health, and promotes their autonomy and empowerment. If this happens, society as a whole will reap the benefits.
8. Conclusion
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ACCEPTED MANUSCRIPT In a period of 10 years, Nepal, through its legislature, executive, and Supreme Court has taken significant steps toward establishing women’s right to abortion that other
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countries with high maternal mortality and morbidity related to restrictive abortion laws and practices might follow. Nepal’s paradigm shift provides a useful model for the
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reconceptualization of abortion from a crime to a matter of women’s human rights.
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Nepal’s legal jurisprudence reflects a progressive and gendered understanding of
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abortion rights that still needs to be translated into practice. This may be achieved if members of the medical profession are able to take steps to improve attitudes to
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respect and promote women’s reproductive choices and substantive equality within the health system. A concrete step that may be taken by medical professionals in Nepal is
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to support the adoption of comprehensive abortion legislation, as envisioned by the
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Supreme Court in Dhikta, to establish stronger legal protections for women’s human
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rights in the delivery of abortion services.
Conflict of interest
The author was a co-petitioner in the Lakshmi Dhikta case.
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ACCEPTED MANUSCRIPT References [1] Ministry of Health and Population, Government of Nepal. Nepal Health Sector
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[2] International Fund for Agricultural Development. Enabling poor rural people to
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[14] Meera Dhungana v. Ministry of Law, Justice and Parliamentary Affairs, Writ no. 6013, Nepal Kanoon Patrika (Supreme Court) 2052 (1993), Vol.6, p. 462. [15] Center for Reproductive Law and Policy, Forum for Women, Law and Development. Abortion in Nepal. Women Imprisoned. 2002. http://reproductiverights.org/sites/crr.civicactions.net/files/nepal_2002.pdf [16] Nepal. Country Code 1963 [Muluki Ain 2020]. Eleventh Amendment (2002). [17] Interim Constitution of Nepal 2063 (2007).
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ACCEPTED MANUSCRIPT [18] Government of Nepal, Ministry of Health and Population. Health Sector Gender Equality and Social Inclusion Strategy. December 2009.
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http://www.rti.org/pubs/30_nepal_healthgenderequality.pdf
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[19] Lakshmi Dhikta v. Government of Nepal, Writ no. 0757, Nepal Kanoon Patrika (Supreme Court) 2067 (2009) pp.1551-1579.
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[22] Cook RJ. Stigmatized meanings of criminal abortion law. In: Cook RJ, Erdman JN, Dickens BM, eds. Abortion Law in Transnational Perspective: Cases and Controversies. Philadelphia: University of Pennsylvania Press; 2014:347−69. [23] FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health. The role of the Ob/Gyn as an advocate for women’s health. In: Ethical Issues in Obstetrics and Gynecology. London: FIGO; 2012):8−9. http://www.figo.org/files/figocorp/English%20Ethical%20Issues%20in%20Obstetrics%20and%20Gynecology.pdf
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S0020-7292(14)00245-8 doi: 10.1016/j.ijgo.2014.05.001 IJG 7979
To appear in:
International Journal of Gynecology and Obstetrics
Please cite this article as: Upreti Melissa, Abortion law reform in Nepal, International Journal of Gynecology and Obstetrics (2014), doi: 10.1016/j.ijgo.2014.05.001
This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.
ACCEPTED MANUSCRIPT ETHICAL AND LEGAL ISSUES IN REPRODUCTIVE HEALTH
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Abortion law reform in Nepal
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Center for Reproductive Rights, New York, NY, USA
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Melissa Upreti *
* Center for Reproductive Rights, 120 Wall Street, New York, NY 10005, USA. Tel.: +1
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917 637 3600; fax: +1 917 637 3666.
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E-mail address: [email protected]
Keywords: Abortion; Lakshmi Dhikta judgment; Nepal; Rights to abortion; Rural
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women’s rights; Supreme Court of Nepal
Synopsis: By reforming its constitution, criminal law, and Supreme Court rulings, Nepal has evolved democratically to recognize women’s rights to lawful abortion, including for poor women.
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ACCEPTED MANUSCRIPT ABSTRACT Across four decades of political and social action, Nepal changed from a country
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strongly enforcing oppressive abortion restrictions, causing many poor women’s long
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imprisonment and high rates of abortion-related maternal mortality, into a modern democracy with a liberal abortion law. The medical and public health communities
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supported women’s rights activists in invoking legal principles of equality and non-
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discrimination as a basis for change. Legislative reform of the criminal ban in 2002 and the adoption of an Interim Constitution recognizing women’s reproductive rights as
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fundamental rights in 2007 inspired the Supreme Court in 2009 to rule that denial of women’s access to abortion services because of poverty violated their constitutional
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rights. The government must now provide services under criteria for access without charge, and services must be decentralized to promote equitable access. A strong legal
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foundation now exists for progress in social justice to broaden abortion access and reduce abortion stigma.
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ACCEPTED MANUSCRIPT 1. Introduction Nepal is a landlocked country located in the Himalayas, home to approximately 30
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million people, 80% of whom reside in rural settings. There have been some
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improvements in the health status of the poor and marginalized, with an overall 10% decline in poverty between 1996 and 2004, and a general increase in the utilization of
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health services. Nevertheless, disparities in access to health care persist, which are
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deeply accentuated by a range of socioeconomic and geographic factors [1] (p.1). Most rural households continue to lack access to basic healthcare services, sanitation, and
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safe drinking water [2] (p.1). The rural health infrastructure is inadequate and trained service providers are scarce. The mountainous terrain impedes physical access to
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health services in many parts of the country, which translates into poorer health
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indicators for people residing in remote areas.
Certain basic health services including contraceptives are offered by the government at no cost, but incidental costs associated with the travel required to access these services and a general lack of information about the types of commodities and services offered by the government make them inaccessible in practice. Socially marginalized and lowincome populations are frequently deterred from seeking health services because of the poor attitudes of health service providers, many of whom lack the compassion, motivation, skills, and training to provide quality health care to the socially disadvantaged and poor. Further, specific historical and cultural factors make gender a crucial determinant of health care in Nepal. Nepalese society is fundamentally patriarchal, where women are considered subordinate to men. Women’s reproductive
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ACCEPTED MANUSCRIPT functions associated with childbearing are traditionally viewed as an obligation, and
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women’s destiny.
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Unsurprisingly, the status of women’s reproductive health is a major concern: only 43% of married women use a modern method of contraception [3] (p.95); each week, about
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42 women die of pregnancy-related causes [1] (p.1); there are over 600 000 reported
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cases of uterine prolapse [4]; and unsafe abortion is the third leading cause of maternal
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death in Nepal [5] (p.9).
2. Impact of the criminal ban on abortion
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Nepal was officially a Hindu Kingdom until 2008 and the former sweeping criminal ban
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on abortion is an extreme expression of Nepal’s traditional patriarchal history and
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mindset. Abortion was criminalized in Nepal through the Country [criminal and civil law] Code of 1854, although informal punishments for abortion existed prior to the codification of the ban. The premise of the ban was religious. Abortion is deemed a sin in Hindu religious texts and women who have them may be ostracized.
The 1854 Country Code was subsequently revised in 1963 [6], but the criminal ban was retained with the exception that there would be no criminal liability for an abortion performed as an act of benevolence [6] (section 28). Since this exception was never clarified, it offered no practical recourse for women.
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ACCEPTED MANUSCRIPT The criminal ban resulted in negative consequences for women and burdened the health system as a whole. By the early 1990s there were ample studies and data
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demonstrating these negative outcomes. First, the ban contributed directly to Nepal’s
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high maternal death rate; studies showed that complications from unsafe abortion resulted in over half of all hospital maternity deaths [7]. Second, it resulted in the routine
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imprisonment of women on charges of abortion, which was frequently conflated with
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infanticide—a crime punishable with life imprisonment [8]. Third, it created a strain on the nation’s fragile health system, as complications from unsafe abortion became the
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3. The motivations for change
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leading cause of hospital admissions (54%) [9] (p.67).
The motivation for law reform came from various quarters, and evolved over a period of
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more than four decades before successfully culminating in law reform in 2002. The most significant challenges to the ban came from the medical community, the public health community, and the women’s rights movement, although each community was motivated by different considerations.
3.1. Medical community The harmful impact of the criminal ban was not lost on medical professionals, who recognized that unsafe abortion procedures that included, for example, the insertion of cow dung and sticks into the uterus, were forcing women to put their health and lives at risk and seek urgent medical care for complications from botched procedures. In 1968, the Nepal Medical Council introduced regulations [10] that included a provision that
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ACCEPTED MANUSCRIPT would allow medical practitioners to perform abortions in circumstances where a pregnant woman’s life or health was at risk and in cases of fetal impairment [10]
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(section 22(j)). While this provision was introduced to justify the performance of
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abortions by medical professionals on certain grounds, and to offer some protection to providers from criminal liability, rules issued by the medical council do not supersede
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national law. It is unlikely that the 1968 regulations could in fact have shielded a medical
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provider from criminal prosecution for an illegal abortion in an actual case. Nonetheless, the formal introduction of this rule did constitute a symbolic rejection of the strict criminal
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ban by the nation’s respected community of medical professionals.
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Down the years, a few compassionate doctors, including members of the Nepal Society of Obstetricians and Gynaecologists (NESOG), started publicly expressing the need for
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exceptions to the ban in the interest of women’s health. There were some reputable medical professionals who even performed abortions and were not pursued by law enforcement officials because of their elite status. The women who sought services from these doctors were primarily urban-based and educated, and had the financial resources to circumvent the law. This scenario coexisted with a sizeable number of untrained providers who catered to women—mostly rural, uneducated, and poor—who were willing to take immense risks to terminate their unwanted pregnancies, and who were often the ones to either be imprisoned or die. This dichotomy reflects the grim reality that the negative impact of the criminal ban was felt the most by socially disadvantaged and poor women.
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ACCEPTED MANUSCRIPT 3.2. Public health community The public health community has played a key role in exposing the harmful impact of
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the criminal abortion ban and in pushing for legal reform. By the early 1990s, there was
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compelling evidence pointing to unsafe abortion as the leading cause of maternal mortality in Nepal [7]. In those years, Nepal had a maternal mortality ratio (MMR) of 850
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per 100 000 live births [11] (p. 45), and each year over 4000 women died of preventable
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pregnancy-related causes [9] (p.75). Hospital-based studies showed that women with severe complications from unsafe abortion were being admitted in significant numbers,
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and many of them could not be saved [7]. The majority of women who underwent induced abortion were between 20 and 45 years of age, and already had 2−3 children,
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indicating that abortion was being used as a method of family planning and in many
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instances to space pregnancies [12] (p.4).
In 1997, draft legislation aimed at amending the criminal ban and establishing a broad framework for abortion service provision, The Pregnancy Protection Bill of 1996, was tabled in parliament under the leadership of a former chairperson of the Family Planning Association of Nepal (FPAN). While tabling the Bill in parliament represented a collective effort, his inspiration to lead the effort came, by his own account [13] (p.44), from two sources: First, insights he had gained into the shocking realities of women’s reproductive health status in Nepal through his work at FPAN; and, second, a deeper understanding of women’s reproductive health issues in the broader context of development, acquired through his participation in the UN International [Cairo] Conference on Population and Development in 1994 [13] (p.44). The Bill lapsed in
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ACCEPTED MANUSCRIPT parliament in 1999, but the public health community’s efforts toward legalization
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continued.
Notwithstanding the criminal ban, there were some government officials who
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understood the nature of the devastating impact of the ban on women’s lives. For years,
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certain organizations were allowed to provide safe abortion services in the form of
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menstrual regulation while high-level officials in the Family Health Division of the
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Ministry of Health essentially turned a blind eye.
3.3. Women’s rights movement
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The role of the women’s rights movement in Nepal’s historic process of abortion law
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reform is significant. Following Nepal’s political transition to a parliamentary democracy
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and the adoption of a new constitution in 1990, which recognized the right to equality as a fundamental right and prohibited discrimination based on several grounds including sex, a series of public interest cases was filed in an attempt to systematically dismantle laws that had for centuries discriminated against women. Among these cases was Meera Dhungana v. Ministry of Law, Justice and Parliamentary Affairs [14], a case that challenged the nation’s discriminatory ancestral property laws and became the precursor of the 11th Amendment to the Country Code, which in 2002 legalized abortion on broad grounds. The women’s rights movement included abortion in its agenda for legal reform, framing the abortion ban as a form of discrimination against women. Many women’s rights advocates relied on the compelling evidence presented by public health
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ACCEPTED MANUSCRIPT data to come forward and demand the legalization of abortion as a matter of women’s
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health and survival.
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The routine imprisonment of women for abortion, and the release of a study in 2000 showing that around 20% of women—predominantly from rural areas, poor and
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uneducated—in the nation’s prisons were incarcerated for abortion or infanticide,
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exposed the broader injustice of the ban [8]. Human rights violations documented through a fact-finding mission conducted by women’s rights organizations in 2001
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provided women’s rights activists with hard evidence of violations of women’s rights to due process in the enforcement of the criminal ban, in addition to violations of a broad
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range of civil, political, economic, and social rights under international law [15]. This
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evidence was utilized by women’s rights activists to bolster their demands for abortion
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law reform as a matter of women’s autonomy, dignity, social justice, and human rights.
4. The amended criminal ban
The criminal ban on abortion prevailed in Nepal for well over a century before it was finally amended in 2002. The amendments made it legal for abortion to be performed on several grounds: within the first 12 weeks upon request; within 18 weeks in cases of rape or incest; and at any time during the pregnancy if it posed a risk to the life or health (physical or mental) of the pregnant woman, and in cases of fetal impairment [16]. These provisions can be found in the Country Code in the Chapter on Homicide, which still contains a general prohibition on abortion and deals with crimes such as murder and infanticide. These amendments were followed by the introduction of safe abortion
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ACCEPTED MANUSCRIPT policies and procedures, which together constitute the current framework for the
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provision of abortion services.
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5. The current impetuses for further advancement of women’s abortion rights 5.1. Interim Constitution of 2007
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The Interim Constitution of Nepal 2007 marked the end of a decade long peoples’
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movement, also known as the Maoist insurgency, and brought with it the recognition of some new fundamental rights. The Interim Constitution of Nepal establishes the right to
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health as a fundamental right of all citizens, which includes the right to “basic health services free of cost from the State as provided for in the law” [17] (Art. 16(2)). It
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specifically recognizes women’s reproductive rights as fundamental rights [18] (Art. 20(2)). It further recognizes the right to equality [17] (Art.13), and the specific right of
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women not to be discriminated against on the basis of gender [17] (Art. 20(1)), as fundamental rights. The Interim Constitution places strong emphasis on the inclusion of historically marginalized and disempowered groups in political processes, and guarantees a fundamental right to social justice, which establishes the right of participation of marginalized groups, including women, in state structures [17] (Art.21).
Since the adoption of the Interim Constitution [17], the Ministry of Health and Population has developed strategies and policies that specifically note the constitutional recognition of health as a fundamental right. The Nepal Health Sector Programme-2 (NHSP-2) outlines three core objectives: to increase access to and utilization of quality essential health services; to reduce cultural and economic barriers to accessing healthcare
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ACCEPTED MANUSCRIPT services and reduce harmful cultural practices in partnership with non-state actors; and to improve the health system to achieve universal coverage of essential health services
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[1] (p.ii). The NHSP-2 specifically envisions promoting women’s access to health
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services and promoting a human rights-based approach to health, which includes a focus on improving provider/client relationships [1] (p.13). It includes abortion and
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contraception in its list of issues guiding its strategic direction [1] (p.13).
Social health protection is a dominant theme in the current health policy discourse,
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recognizing the reality that for services to be accessible, they must be affordable. Notable efforts that have been made in recent years to increase access to free health
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services include the scaling up of a pilot maternity incentive scheme, which since 2009 has offered free childbirth services in all public health facilities and partner health
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facilities [1] (p.6). This measure is considered to have contributed significantly to the overall decline in maternal mortality in Nepal, which the government has prioritized to meet its commitment under the Millennium Development Goals. Currently, Nepal is considered likely to achieve its target MMR of 213 by 2015, although there are notable disparities in MMR between rural and urban settings and by various social and age groups [11] (p. 45-6). The legalization of abortion is also recognized to have contributed to the notable reduction in maternal mortality, with an estimated 280 000 women having utilized safe abortion services since 2002 [1] (p.7).
Another notable aspect of health policy development in Nepal is the recognition that the right to health cannot be realized without taking into account unequal power relations
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ACCEPTED MANUSCRIPT between men and women, and the specific needs of poor, vulnerable, and marginalized social groups, which significantly includes women. In 2009, the government introduced
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a Health Sector Gender Equality and Social Inclusion Strategy, which builds on the changed political context to call for stronger integration of a gender perspective in health
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care, and is clearly anchored in the Constitution’s recognition of a fundamental right to
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health [18]. The policy recognizes familial and societal discrimination as factors that
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undermine women’s access to health care and result in poor health outcomes [18] (p.2). One of the potential challenges that have been identified in implementing the strategy is
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service providers’ discriminatory behavior toward poor, vulnerable, and marginalized
5.2. The Dhikta decision
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groups, which significantly includes women [18] (p.22).
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The Supreme Court decided the case, Lakshmi Dhikta v. Government of Nepal in 2009, [19] in which it recognized a constitutional right to abortion [20]. Lakshmi Dhikta was a mother of five from Dadeldhura, in Western Nepal, who sought termination of her sixth pregnancy. She and her husband went to a government hospital to obtain an abortion, but were not able to get the procedure because they were unable to pay the service fee of approximately 1130 rupees (US $12). Lakshmi Dhikta’s story is all too common in Nepal owing to widespread poverty and inadequate access to contraceptive information and services. Her case was therefore filed as a public interest case.
The Dhikta decision recognizes the denial of access to abortion because of its unaffordability as a violation of women’s constitutional rights. On the issue of
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ACCEPTED MANUSCRIPT affordability in particular, the Court notes that cost should be determined on the basis of an individual’s ability to pay [19] (para 100), and that where poverty is a bar to access,
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the government must take steps to provide abortion services without charge, including
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by clarifying the criteria for free services, the process for obtaining free services, and where they will be offered [19 (para 67). The Supreme Court further notes the need to
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increase the number of abortion service providers and to prevent their concentration in
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urban areas [19] (para 63).
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The Court uses the systemic failures that led to denial of abortion in Lakshmi Dhikta’s case to make a more general point about the health system as a whole: that there are
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not enough hospitals and health centers that focus on and cater specifically to women’s health needs [19] (para 69). The gravity of these systemic gaps and failures is
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underscored by the Court’s emphasis on the right to health being linked to the right to life, and on the state’s constitutional duty to protect certain fundamental rights specifically in relation to women, which include their reproductive rights, as recognized in the Interim Constitution’s Article 20(2). The Court notes that the formal recognition of these rights as fundamental makes it the primary duty of the state to prioritize their implementation [19] (para 70).
6. The paradigm shift The recognition of women’s reproductive rights as fundamental rights and, more specifically, of abortion as a constitutionally protected right, represents a profound paradigm shift in Nepal, where patriarchy once ruled and childbearing was generally
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ACCEPTED MANUSCRIPT considered to be a duty that a woman must bear at any cost. Speaking of the current context in Nepal, the Supreme Court observed in Dhikta that “[i]n this changed context,
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the recognition of women’s reproductive health and abortion [rights] calls for a different
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way of thinking” [19] (para 88).
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The Supreme Court’s analysis of the implications of failing to ensure women’s access to
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abortion can be a helpful guide in embracing a new way of looking at abortion. In its analysis, the Court looks at abortion from both individual and societal perspectives. On
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an individual level, the Court recognizes that denying a woman the right to terminate her pregnancy results in forcing her to carry an unwanted pregnancy to term, which is unjust
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in itself and violates a broad range of individual rights guaranteed by law. According to the Court, while pregnancy may be viewed as an honorable act, it cannot be considered
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a woman’s obligation [19] (para 32). On a societal level, the Court recognizes that while abortion is a private matter, considering Nepal’s recognition of the right to social justice as a fundamental right, it is not possible as a matter of social justice for the state to dissociate itself from issues that arise when women’s abortion rights are denied [19] (para 75). It is the state’s duty to ensure that women have access to abortion services by making them affordable, and establishing the necessary infrastructure, human resources, protocols, and funding.
Further, the Court frames pregnancy as a woman’s right and privileges women’s autonomy and bodily integrity over cultural stereotypes that equate womanhood with motherhood. This reflects the Court’s understanding of how stereotypes and socialized
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ACCEPTED MANUSCRIPT roles lead to women’s lack of control over their fertility. The Court deepens its analysis by characterizing forced pregnancy resulting from the denial of abortion as a form of
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violence against women and recognizing it as a source of inequality between men and
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women [19] (para 38). The recognition of these multiple dimensions of women’s abortion rights signals a radical shift in the conceptualization of abortion purely as a
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crime, to regarding abortion as a matter of substantive equality for women.
The Supreme Court addresses the stigma of abortion stemming from societal norms
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and the criminalization and lengthy punishment of abortion under the Country Code. The current legal framework for abortion is essentially made up of the amended
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provisions of the former ban, which still contain a general prohibition of abortion while allowing it on broad grounds. These provisions are located in the chapter of the Country
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Code that deals with serious crimes including murder and infanticide, giving all abortions a general aura of criminality. As noted by the Court, considering the societal evolution of views on abortion, it is no longer appropriate to regulate abortion through this chapter of the Country Code [19] (para 89).
7. The way forward Abortion law reform has been a complex process in Nepal. What started as an effort to address a major public health concern evolved into a much broader movement to end discrimination against women. The negative consequences of the ban on women’s search for health and survival through safe termination of pregnancy, and the routine incarceration of women, made a very compelling case for change that helped to bring
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ACCEPTED MANUSCRIPT many different stakeholders together. Nepal’s experience clearly shows that the criminalization of abortion does not stop abortions from happening, but leads to multiple
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violations of women’s rights.
Also evident from the Nepal experience is that law reform is not enough in itself to make
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abortions safe and accessible. Law reform is just the beginning of the story; it must be
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followed by robust protocols that establish a clear and adequate framework for service provision and funding. For example, this could include improving availability of and
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access to medication abortion by enabling midlevel providers to supply the drug,
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especially in rural areas [21].
In Nepal, it was eventually through public interest litigation that the actual scope of the
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right to abortion was clarified, and the inadequacy of existing protocols and programs was formally recognized. This legal process yielded a decision that has now broadened the premise for creating a more robust legal infrastructure for women’s abortion rights, through the introduction of a comprehensive law that will go beyond establishing the legal grounds for abortion to clarify the rights and duties of service providers in relation to women seeking the procedure, create legal avenues for women who are denied abortion services, and provide a basis for seeking adequate government funding to ensure equitable access to quality abortion services.
In countries where abortion has been criminalized for a long time, abortion stigma is pervasive. Changes in attitudes among policymakers and service providers are needed
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ACCEPTED MANUSCRIPT to ensure that abortion access is sufficiently prioritized within the health system and that
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women are encouraged to seek services when they need them [22].
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Health service providers are in key positions to help women overcome barriers to abortion, by recognizing and exposing these barriers and advocating for positive change
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within the health system; for example, by working with government agencies to make
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abortion services affordable, ensuring the provision of quality care, supporting the adoption of comprehensive abortion legislation that will provide adequate protection for
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women’s rights in the provision of abortion services, and promoting a conducive environment for women seeking abortions that is non-judgmental and compassionate.
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Active engagement in these activities can enable medical professionals to fulfill their
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ethical obligation to become advocates for women’s health [23].
In countries like Nepal, where women’s vulnerability to unintended pregnancy and unsafe abortion is associated with multiple factors including their geographic location, lower levels of income and education, underlying gender discrimination, unequal power dynamics, and government failure to adequately prioritize women’s reproductive health, particularly access to contraception, changes in historical attitudes and public advocacy are needed to ensure that the legalization of abortion actually helps save women’s lives and health, and promotes their autonomy and empowerment. If this happens, society as a whole will reap the benefits.
8. Conclusion
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ACCEPTED MANUSCRIPT In a period of 10 years, Nepal, through its legislature, executive, and Supreme Court has taken significant steps toward establishing women’s right to abortion that other
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countries with high maternal mortality and morbidity related to restrictive abortion laws and practices might follow. Nepal’s paradigm shift provides a useful model for the
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reconceptualization of abortion from a crime to a matter of women’s human rights.
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Nepal’s legal jurisprudence reflects a progressive and gendered understanding of
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abortion rights that still needs to be translated into practice. This may be achieved if members of the medical profession are able to take steps to improve attitudes to
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respect and promote women’s reproductive choices and substantive equality within the health system. A concrete step that may be taken by medical professionals in Nepal is
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to support the adoption of comprehensive abortion legislation, as envisioned by the
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Supreme Court in Dhikta, to establish stronger legal protections for women’s human
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rights in the delivery of abortion services.
Conflict of interest
The author was a co-petitioner in the Lakshmi Dhikta case.
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[2] International Fund for Agricultural Development. Enabling poor rural people to
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ACCEPTED MANUSCRIPT [18] Government of Nepal, Ministry of Health and Population. Health Sector Gender Equality and Social Inclusion Strategy. December 2009.
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