Contraceptive Access Case Filed In Supreme Court of Nepal

Last month, the first case to be developed by the Center for Reproductive Rights’ South Asia Reproductive Justice and Accountability Initiative (SARJAI) was filed in the Supreme Court of Nepal. The public interest case, filed by SARJAI fellow and Nepali lawyer Sarmila Shrestha with support from the Center, demands that the Nepalese government take specific steps to protect women’s reproductive health and rights by prioritizing access to contraceptive information and services at all levels within the public health system, particularly for rural, poor, and marginalized women.

This is the first case to be filed in the region seeking to hold a government accountable for its obligation to ensure women’s access to contraceptive methods, information, and services.  Immediately after the filing, the Supreme Court issued a show cause notice to the government, and the case has now been taken up as priority litigation.  

Nepal formally recognized women’s reproductive rights as constitutionally protected fundamental rights in 2007. Yet, the status of women’s reproductive health remains dismal. Over a third of pregnancies are unplanned in the country; almost 50% of married women have an unmet need for contraceptives; notable disparities in maternal mortality persist; the incidence of uterine prolapse is unusually high; and women continue to die from unsafe abortions. 

Furthermore, child marriage is widespread resulting in significant numbers of young girls and women experiencing high-risk early and frequent pregnancies.  According to the 2011 National Demographic Health Survey, the current contraceptive prevalence rate for Nepal for any modern method is only 49.7%.

Sarmila’s public interest case is based primarily on the findings of field research that she conducted, with support from the Center. This research identifies barriers faced by Nepali women in accessing contraceptive information and services. 

SARJAI is an initiative established by the Center to build a robust body of law that will secure safe and accessible reproductive healthcare—specifically, contraceptive and safe abortion services—for women in South Asia. It aims to promote legal accountability to ensure that governments in the region adopt and fully implement appropriate reproductive health laws and policies and protect women’s access to essential reproductive healthcare services in line with their national and international legal obligations.

About the Petition

Sarmila’s case claims violations of the Nepal Interim Constitution which guarantees women’s reproductive rights as fundamental rights and guarantees other fundamental rights including the right to health, the right to freedom from gender-based violence and the right to privacy. It frames the issue of lack of access to contraceptive methods, information and services as discrimination against women, as envisioned in the Convention on the Elimination of All Forms of Discrimination Against Women and applies the “Availability, Accessibility, Acceptability, and Quality” framework as developed under the International Covenant on Economic, Social and Cultural Rights.

Building upon previous Supreme Court’s decisions including Lakshmi & Others v. Nepal Government, in which the Court has recognized women’s right to self-determination in relation to their reproductive functions, the petition argues that the contraceptive services fall within the scope of constitutional rights guaranteed by the 2007 Interim Constitution.

Some of the specific issues and barriers raised in the case include: 

  • Lack of universal access to a full range of modern contraceptive methods resulting in very limited options; 
  • Lack of information and counseling on modern contraceptive methods resulting in the prevalence of misconceptions about contraceptives and fear of side effects; 
  • Disparities in access to modern contraceptive information and services based on factors such as income, geographic location and age, resulting from the government’s failure to address specific barriers faced by rural, poor and remotely located women and young girls; and
  • Lack of trained health providers in the health system and limited hours of service provision and absenteeism which altogether negatively affect the availability of information and services.

Remedies demanded by the petition:

  • Universal access to a full range of contraceptives, including emergency contraceptives at all levels of health care;
  • Examination of the existing legal and policy framework and appropriate actions necessary, including infrastructural development and policy reform, to ensure the availability of trained health professionals, information dissemination and availability of counseling services;
  • Guarantees that health care centers provide modern contraceptive information and services at all times during the government’s official working day;
  • Introduction of specific interventions for adolescents and women belonging to marginalized groups who face additional barriers; and
  • Adequate funding for contraceptive methods, information, and services.

About the Petitioners

There are 11 co-petitioners in this case, including two women from a village where research was conducted by Sarmila on barriers to contraceptive access. The other co-petitioners include  representatives from several leading public interest organizations in Nepal: Forum for Women, Law and Development (FWLD); ProPublic; Public Interest Law Advocacy and Litigation  in Nepal (PILAL); Justice and Rights Institute-Nepal (JuRI-Nepal); Centre for Agro-Ecology and Development (CAED); Environment and Development Organization (ENDO); and Legal Aid Center, a law firm based in Kathmandu. Sarmila is both a co-petitioner and the lead lawyer on the case.