Petitioners argued that Lakshmi Dhikta’s inability to receive a safe, legal abortion violated the following rights, protected by Nepali and international law:
• Right to abortion
The eleventh amendment of the Muluki Ain (National Code of Nepal) grants women the right to abortion on the following grounds: a) upon request for pregnancies up to 12 weeks, with the voluntary consent of the woman; b) when the pregnancy (of up to 18 weeks) results from rape or incest; c) when, at any time during the pregnancy, the life or physical or mental health of the pregnant woman is at risk; or d) if there is a risk of fetal impairment, with the woman’s consent and the recommendation of an authorized medical practitioner. The Muluki Ain also recognizes that legalizing abortion, while important, is insufficient. It states that well-equipped facilities and a monitoring body should be developed to ensure that the right to abortion is properly implemented.
• Right to life
Under the Interim Constitution of Nepal (2006), every individual has the right to live a respectful life (art. 12). Additionally, the Nepal Citizenship Act of 1964 states that an individual has the right to life and the right to freedom unless otherwise arranged by the prevailing law (art. 12). International human rights law also protects the right to life. The Universal Declaration of Human Rights states that everyone has the right to life, liberty and security of person (art. 3).
The right to abortion is interrelated with a woman’s right to life. The petitioners argued that unsafe abortion is a leading cause of maternal death in Nepal due in large part to the lack of accessible and affordable abortion services. Under international law, states must not simply refrain from depriving people of their right to life – they must also take active steps to ensure this right. The U.N. Human Rights Committee, which oversees compliance with the International Covenant on Civil and Political Rights (ICCPR), has stated that “The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.” Such positive measures include ensuring access to safe abortion services so that women do not have to undergo life threatening clandestine abortions.
• Right to be free from cruel, inhuman or degrading treatment
Both the Universal Declaration of Human Rights (art. 5) and the ICCPR (art. 7) affirm that everyone has the right to be free from cruel, inhuman and degrading treatment. This right protects both “the dignity and the physical and mental integrity” of the person. In the case of K.L. v. Peru, the Human Rights Committee found that the denial of legal abortion services violated a woman’s right to be free from cruel, inhuman and degrading treatment.
• Right to health
The Interim Constitution of Nepal states that “Every woman will have access to reproductive health and the right to reproductive health” (art. 20(2)). This provision imposes a positive obligation on the state to ensure that women are able to access services. The Interim Constitution ensured the right to reproductive health, under special provisions for women’s rights, for the first time in the history of Nepal.
Additionally, the Interim Constitution states in Article 13 that the right to health is a fundamental right. The Interim Constitution guarantees every individual the right to enjoy primary health services free of cost, which means that no Nepalese woman should be deprived of her right to abortion due to her inability to pay for the service.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) (art. 12) also guarantees “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This right requires states to ensure that healthcare is available, accessible, acceptable and of high quality for everyone, without discrimination.
• Right to equality and non-discrimination
The Interim Constitution of Nepal states that all citizens are equal before the law and that no one shall be deprived of enjoying their constitutional rights due to lack of information or poverty (art. 13). When women are unable to access legal abortion services, they are deprived of their right to equality and non-discrimination before the law.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also affirms that women have the right to be free from discrimination (art. 1). Article 12 of the Convention states that women have the right to non-discrimination in access to healthcare and that, in order to eliminate discrimination against women, states must provide “appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary….”
• Right to decide the number and spacing of one's children
CEDAW, Article 16(e), states that women have the right to “decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights….” Access to safe and legal abortion is an important component of empowering women to decide when and how often to have children.
Furthermore, the Programme of Action of the International Conference on Population and Development (ICPD), held in Cairo in 1994, recognizes reproductive rights as entailing the “basic right of all couples and individuals to decide freely and responsibly the number and spacing of their children....”
• Right to self-determination
The eleventh amendment of the Muluki Ain protects the right to self-determination by allowing women to undergo abortion in conditions defined by the law.
• Right to confidentiality
The Interim Constitution of Nepal states that confidentiality regarding an individual’s life cannot be violated against his/her will (art. 28). The right to abortion is an extremely personal and confidential matter in a woman’s life. Confidentiality regarding all abortion records is guaranteed by the law, but there is no legal provision for appropriate compensation if confidentiality is breached.
19. See Human Rights Committee, General Comment No. 6: The right to life (Art. 6), (16th Sess., 1982) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies, at 176, para. 5, U. N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).
20. Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment) (44th Sess., 1992) in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies, at 200, para. 2, U. N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).
21. Human Rights Committee, K.L. v. Peru, Communication No. 115312003, U.N. Doc CCPR/C/85/D/115312003/Rev. 1.
22. Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5-13, 1994, at chap. 2, U.N. Doc. A/CONF.171/13/Rev.1 (1995).
