Nepal dispatches: government of Nepal moves to decriminalize abortion in response to rights campaign – JURIST – News

After years of advocating women’s rights groups, the government of Nepal agreed to decriminalize abortion and protecting the sexual and reproductive health of women and girls. The Nepalese law students Smriti Phuyal and Smriti Pantha from the NLU Delhi and the Kathmandu University School of Law submit this exclusive report for JURIST from Kathmandu.

The move began as the Center for Reproductive Rights and its Nepal-based partners a compliance report for the Universal Periodic Review (“UPR”) focuses on the barriers to safe abortion services in Nepal and their impact on women’s sexual and reproductive health rights.

The Universal Periodic Review is a comprehensive periodic review of human rights for each country that takes place before the United Nations Human Rights Council (“UNHRC”). At each UPR, the UN member states can review the compliance report submitted and make recommendations. France, one of the UN member states, recommended that the Government of Nepal (“GON”) fully decriminalize abortion in order to protect women’s sexual and reproductive health rights.

On August 6th, Country accepted France’s recommendations in Nepal’s youngest UPR. This initiation by the GON would empower women by recognizing their constitutionally guaranteed right to a decent life, freedom, equality and safe motherhood and reproductive health across Nepal. In addition, the decriminalization of abortion would give women the right to self-determination in making decisions about reproduction, which is to be protected under the protection of the land Safe Maternity and Reproductive Health Act 2018 (“SMRHR Law”).

Until 2002, Nepal was one of the many countries where abortion was not illegal under any circumstances. As a result, the complications of clandestine abortions have been the leading cause of the deaths of hundreds of Nepalese women each year. Even if she survived through an abortion, she would either be stigmatized or criminalized. It was not until 2002 that abortion became unconditionally possible in the first trimester. Legal barriers were gradually being dismantled, but poor enforcement and social stigma made access to safe abortion difficult.

Over time, with changes in the country’s political scenario and the joint efforts of various human rights organizations to break resistance from social and religious groups, there has been a positive change in the context of sexual and reproductive health and rights. Efforts by international organizations have also helped change the way society thinks and create a friendly environment where abortion is accepted as a woman’s right.

the Constitution of Nepal Adopted in 2015, guarantees safe motherhood and reproductive health within the framework of fundamental rights. The SMRHR law was introduced in 2018. It aims to “respect, protect and fulfill women’s rights to safe motherhood and reproductive health” by providing “safe, high quality, affordable and accessible maternal and reproductive health services”.

Although the SMRHR law recognized abortion, it was not free from legal barriers. An important regressive aspect was that it refused to terminate a pregnancy after 28 weeks of gestation, even when it was necessary to save the woman’s life. In other cases, it narrowed down legal abortion to just up to 12 weeks. Furthermore, the Criminal Code of Nepal continued to lead the punishment for abortion.

In addition, the law defined abortion as “the spontaneous termination of the fetus from the womb before it becomes capable of natural childbirth”. As a result, even accidentally caused miscarriage or would fall within the realm of “abortion” without any outside intervention. This misleading definition could lead to a “natural miscarriage” being prosecuted as an illegal abortion. Despite the 2002 and 2018 amendment, Nepal was unable to fully decriminalize abortion and the traces of criminal provisions on abortion remained.

As a result, a situation arose where the Constitution of Nepal guaranteed safe motherhood and reproductive health rights for women, but on the other hand the SMRHR law maintained some regressive provisions that punished abortion beyond its narrow legal framework. The UPR recommendation, recently published in March 2021, highlighted this inconsistency and encouraged the full decriminalization of abortion. Following the adoption of this report by Nepal, various government officials, including members of the Parliamentary Committee on Law, Justice and Human Rights, the Ministry of Women, Children and Seniors and the Ministry of Health, met with reproductive rights organizations to discuss the path to implementation. The parliamentary committee then promised to take the necessary steps in accordance with the recommendations of the UPR. This shows that the GON takes seriously the commitment made following the UPR recommendations.

Hence, this initiative by the GON has laid a good foundation on which to expect the advancement of reproductive rights and safe abortion services for every Nepalese woman. To bring this progress to life, the GON must take the necessary steps and implement the commitments made following the adoption of the UPR recommendations. Nepalese citizens look forward to the government lifting the penal code that prevents safe abortion. Until the government keeps their pledge, Nepalese women are waiting for the day to come when they will regain their sexual and reproductive autonomy.