Kathmandu, March 2

Although the newly enacted Safe Motherhood and Reproductive Health Rights Act contains many positive provisions, some provisions are however, not as progressive as those of the new penal code.

The new act has also failed to decriminalise abortion as ruled in Laxmi Devi Dhikta versus Government of Nepal case.

A division bench of justices Kalyan Shrestha and Rajendra Prasad Koirala ruled in 2011 in a major precedent setting verdict that the foetus does not have an independent status in the mother’s womb and its interests cannot be greater than that of the mother.

The SC had ruled that abortion should not be part of a homicide chapter and there should be a separate law to deal with it.

Regional Manager of Centre for Reproductive Rights Purna Shrestha said although SMRHRA contained many positive provisions, it failed to comply with the spirit of a Supreme Court decision that said abortion should not be under criminal law.

Shrestha said the wording of Section 2 (d) of SMRHRA could be invoked to penalise women even for miscarriage. “When it is a case of induced miscarriage, the culprit can be penalised, but miscarriage can happen without anybody inducing it,” she argued.

The new act allows women to have abortion up to 12 weeks after pregnancy, but in the case of rape and incest, women are allowed to have abortion till 28 weeks of pregnancy.

The new penal code, however, allows women to have abortion after 18 weeks of pregnancy in case of rape and incest. “It is not clear which provision — the one in the penal code or SMRHRA — will apply,” Shrestha added.

The new penal code also allows women to have abortion at any stage of pregnancy if her life is at risk or if she risks developing mental and physical health problems or if she is at risk of giving birth to a child with physical abnormalities.

Shrestha said these provisions of the penal code were positive, but SMRHRA did not contain these provisions. So, the new act was a regressive law.

Advocates Meera Dhungana and Indu Tuladhar also said contradictory provisions of the penal code and SMRHRA had created confusion.

“Such confusions will be cleared only after the court tests these laws,” Tuladhar said.

Section 189 (d) of the new penal code, however, allows women to have abortion at any stage of pregnancy if they suffer from HIV or other incurable diseases, but SMRHRA does not allow abortion after 28 weeks of pregnancy.

“SMRHRA should be amended to incorporate provisions to enable women to terminate pregnancy at any stage in some serious situations as provisioned in the penal code,” Dhungana said.

Shrestha said women in need of reproductive services had not been able to enjoy their rights due to gap in these laws and lack of regulations as per the new safe motherhood reproductive health rights laws.

“Sometimes rape victims may not know for 22 to 23 weeks that they are pregnant and if they are not allowed to have abortion after 18 weeks of pregnancy, it will be an injustice to them. Shrestha said laws related to safe motherhood and reproductive health rights needed to be amended to enable women enjoy their bodily rights and bring uniformity to legal provisions.