Decriminalizing Abortion in Nepal
This case seeks to amend Nepal’s penal code to eliminate the crime of abortion and the punitive measures associated with it.
Summary
In Nepal, abortion has been legal in some circumstances since 2002, when the country’s high maternal death rate allowed activists to successfully frame legalization as a public health issue. But despite continued progress on sexual and reproductive health and rights over the past two decades, the country’s penal code still categorizes abortion as a crime.
The criminalization of abortion leads to unsafe abortion practices and deters women from accessing post-abortion care services, posing a serious risk to their health and lives. Prosecution and punishment are primarily targeted at women and girls. The amendment of Nepal’s penal code is crucial to ensuring that women and girls have access to their fundamental right to safe and legal abortion.
With technical support from the Center for Reproductive Rights, Nepal-based Forum for Women Law and Development (FWLD) filed a case at the Supreme Court of Nepal demanding that the government fully decriminalize abortion in accordance with constitutional guarantees and United Nations recommendations.
The petition seeks to hold Nepal accountable for its commitments, calling on the government to repeal the abortion-related provisions in the 2017 Country Criminal Code, and to amend the 2018 Safe Motherhood and Reproductive Health Rights (SMRHR) Act to expand access to and protections for abortion.
BackgroundBackground
Before 2002, women in Nepal were routinely imprisoned for obtaining abortions, and many more suffered complications from risking unsafe, illegal abortions to terminate their pregnancies. The country’s maternal mortality rate was among the highest in the world, with an estimated half of those deaths resulting from unsafe abortion.
Coordinated efforts from stakeholders and activists led Nepal to amend its criminal ban in 2002, permitting abortion on request within the first 12 weeks of pregnancy and in specific circumstances thereafter–though not removing abortion from its criminal code altogether. The right to safe motherhood and the right to reproductive health were recognized in the country’s constitution, but implementation barriers left many still unable to access safe and affordable abortion care.
In 2007, FWLD filed a lawsuit with support from the Center on behalf of a rural woman who couldn’t afford abortion care and had been forced to give birth to her sixth child. The case, Lakshmi v. Nepal, argued that the government had failed to implement its abortion law. In a groundbreaking decision, the Supreme Court ruled that the government had to guarantee access to safe and affordable abortion services.
The 2018 Safe Motherhood and Reproductive Health Rights (SMRHR) Act further expanded constitutional guarantees, established abortion, antenatal care, maternity leave, and confidentiality around reproductive care as fundamental rights. But despite these commitments, Nepal still did not amend its penal code to fully decriminalize abortion. Criminal laws continued to govern abortion, alongside rights-based reproductive health law. This legal inconsistency (especially regarding gestational limits for abortion due to rape and incest) presents obstacles for women seeking care, providers taking care of patients, and law enforcement.
The SMRHR Act permits abortion on request for up to 12 weeks with the pregnant woman’s consent. Beyond this, abortion is criminalized except in specific cases up to 28 weeks: danger to the woman’s life or health; rape or incest; HIV infection or incurable disease; and fetal impairment. Abortion outside these limited grounds or by unapproved providers or providers not listed by the government is also criminalized. The law imposes a penalty of imprisonment of up to five years and a fine not exceeding fifty thousand rupees (approximately US$500) for a pregnant woman undergoing an abortion and health service providers for providing abortion services.
About the caseAbout the case
Challenging the continued criminalization of abortion and the legal inconsistencies that push women to seek unsafe abortions, a Public Interest Litigation (PIL) was filed by the Forum for Women, Law and Development (FWLD) with the Center’s support on February 3, 2022.
The petition asks the court to issue the following directives and orders to the government of Nepal:
- Repeal the abortion-related provisions from the penal code, as they are inconsistent with the SMRHR Act and undermine its existence as a specific rights-based law.
- Revise the definition of abortion to exclude miscarriage from its scope.
- Remove narrow place/institutional requirements from the SMRHR Act (specifically, the phrase “listed health institution that fulfills the prescribed standards”) which act as barriers to abortion access.
- Make necessary amendments to SMRHR Act following the repeal of the abortion-related provisions from the Penal Code.
- Repeal the 28-week gestational limit provision from the SMRHR Act in cases where there is danger to the life of the pregnant woman; deterioration of her physical or mental health; pregnancy due to rape or incest; the women is infected with HIV or a similar incurable disease; or there is a fetal impairment. Women seeking care for these reasons beyond 28 weeks of gestation are currently at risk of criminalization, and their lives are endangered if abortion services are denied.
It’s time for the government of Nepal to make good on its commitments and pave the way for safe, legal and affordable abortion access for all women.
Prabina Bajracharya, CRR Regional Director, Asia
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