Retrial Begins for Nepalese Migrant Worker Wrongfully Accused of Obtaining Illegal Abortion

(PRESS RELEASE) The retrial of Nirmala Thapa, a 24-year old Nepalese migrant worker who was arrested alongside her doctor in a clinic raid and found guilty of obtaining an illegal abortion, starts today in the Penang High Court in Malaysia.

High Court Judicial Commissioner Nordin Hassan overturned Nirmala’s conviction in January after he discovered she was charged and convicted without a Nepali interpreter and determined she was unable to understand the full consequences of her initial guilty plea. 

Since 1989, abortion in Malaysia has been legal in circumstances when a qualified doctor considers the “continuance of the pregnancy” to pose a “risk of injury to the mental or physical health of the woman, greater than if the pregnancy were terminated.” Nirmala is the first woman to be charged and convicted for an “illegal” abortion since 1989.

Said Melissa Upreti, regional director for Asia at the Center for Reproductive Rights:

“Migrant women deserve the same reproductive health care as every other woman in Malaysia, and Nirmala was unfairly targeted.

“If Nirmala’s conviction is upheld, it will set a dangerous precedent for the harassment and unlawful imprisonment of any woman in Malaysia who obtains legal abortion care.

“We urge the Malaysian judicial authorities together with the Ministry of Health to work quickly to reverse the unjust and discriminatory charges against Nirmala and to set her free.”

In October 2014, Nirmala, who was six weeks pregnant at the time, went to a polyclinic in Taman Ciku, Bukit Mertajam seeking a legal abortion. Nirmala was an operator at a Sony factory and, because she was a migrant worker, the pregnancy put her job security at risk. The doctor considered the mental trauma associated with the risks of Nirmala losing her job, having to pay compensation to her employer, and being sent back home if found pregnant—and decided she was legally justified to have a termination.  While in the recovery room post procedure, officials from the Malaysian Ministry of Health entered the clinic and arrested both Nirmala and her doctor.

The Bukit Mertajam Sessions Court charged and convicted Nirmala in November with “conducting an act to prevent a child from being born alive without the intention of saving her own life as a mother,” under section 315 of the country’s Penal Code. Soon after, she filed an appeal in the Penang High Court which was granted by High Court Commissioner Nordin Hassan. Nirmala is currently out of prison on bail and staying at a migrant workers shelter.

The application of section 315 for terminating an early non-viable pregnancy before 22 weeks is unprecedented in Malaysia. The human rights bodies that oversee states’ compliance with the international treaties that have been signed and ratified by Malaysia have recognized the right to safe and legal abortion as a human right. Nirmala’s rights have been violated under both Malaysian law and international law and justice demands that the Penang High Court accord full protection to the rights of all women in Malaysia to reproductive health care without stigma and criminal punishment.

The Center for Reproductive Rights has built a significant presence throughout Asia with major initiatives such as the South Asia Reproductive Justice and Accountability Initiative that focuses on promoting the use of the law and legal strategies to protect and advance women’s reproductive rights in the region. The Center—which opened a Nepal office in 2012—has conducted legal research, built local capacity and undertaken advocacy at the UN in relation to numerous countries in the region.