New Litigation Filed to Decriminalize Abortion in Nepal

With technical support from the Center for Reproductive Rights, Nepal-based Forum for Women Law and Development (FWLD) filed a new 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 was filed on February 3, 2022.

Despite making several commitments to abortion rights and access, Nepal still categorizes abortion as a crime in its penal code beyond the prescribed grounds provided by the law – which presents obstacles for women seeking care as well as for health care providers delivering access to them. Nepal’s penal code must be amended to eliminate the crime of abortion and the punitive measures associated with it to ensure that women have access to their fundamental right to safe and legal abortion.

Nepal’s earlier commitments to abortion rights and access have included:

• Acceptance of recommendations from its Universal Periodic Review (UPR) before the UN Human Rights Council, in July 2021, which included decriminalizing abortion and protecting sexual and reproductive health and rights (SRHR).
• Positive guarantees to abortion outlined in the country’s 2018 Safe Motherhood and Reproductive Health Rights (SMRHR) Act.
• A ruling by the Nepal Supreme Court in the 2009 case, Lakshmi vs. Government of Nepal, declaring that the government must guarantee access to safe and affordable abortion services.

“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,” said Prabina Bajracharya, the Center’s Senior Manager for Asia. “By filing this litigation, we call on the government to remove the obstacles remaining in its Penal code and align with constitutional guarantees and recommendations by UN human rights mechanisms,” said Sabin Shrestha the FWLD’s Executive Director. “Making amendments to the Penal code is a crucial step for ensuring full decriminalization of abortion,” said Prabhakar Shrestha, the Center’s Senior Legal Adviser for Asia.

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 to uphold the decision made by the Supreme Court in Lakshmi vs. Government of Nepal, the fundamental rights ensured by the Nepal Constitution, and the SMRHR Act.
• Make amendments to the SMRHR Act, including delineating a clear distinction between miscarriage and induced abortion to reduce the risk of criminalization of miscarriage; amending provisions on gestational limits, facilities, and service providers; amending sections that restrict conditional safe abortion beyond 28 weeks; and removing regulatory mechanisms for providing safe abortion services to allow for self-managed abortion and telemedicine services.

Decades-long Work to Advance Reproductive Rights in Nepal

For more than 20 years, the Center has worked in Nepal alongside partners to advance reproductive rights, including access to abortion, maternal health care and contraception. The Center’s strategies have included advocating and engaging with lawmakers, policymakers, and other key actors; building and strengthening capacity through training workshops with advocates, civil society groups, and relevant government ministries; making formal submissions to UN bodies; and networking and strengthening partnerships with national and regional organizations. 

Highlights of the Center’s recent work with partners in Nepal include:

• A July 2020 joint submission for Nepal’s UPR report, made with FWLD and Justice and Rights Institute-Nepal, that focused on the continuing legal and procedural barriers to accessing safe abortion services and how the COVID-19 pandemic exacerbated those barriers. 
• Publishing and distributing a 2021 report, Decriminalization of Abortion in Nepal: Imperative to Uphold Women’s Rights, which outlined the country’s abortion restrictions and recommended decriminalization. 

• After consultations with key national stakeholders, developing and submitting an amendment proposal for full decriminalization in April 2021 to Nepal government ministries.
• Working with the Nepal government, after it accepted its UPR report in July 2021, to brief officials on abortion decriminalization and advise government bodies on implementation.
• Providing technical support, with FWLD and other stakeholders, to the Ministry of Health and Population to adopt the “Safe Abortion Service Program Management Guideline 2021,” which provided procedures for safe abortion services and provisions for telemedicine and self-manage abortion.

“We will continue to work with and support our partners for the full decriminalization of abortion services in Nepal and to ensure that the government meets its obligations to protect the sexual and reproductive health and rights of women and girls throughout the country,” added Bajracharya.

Read more:

• Nepal Agrees to Decriminalize Abortion and Protect SRHR, 08.04.21
• Report of the Working Group of the Universal Periodic Review (UPR): Nepal, 03.30.21
• Joint submission for the Nepal UPR Report by the Center for Reproductive Rights, the Forum for Women Law and Development (FWLD), and Justice and Rights Institute-Nepal, 07.09.20