KATHMANDU, APRIL 2
Even one year after Nepal accepted the Human Rights Council's universal periodic review recommendation that it should decriminalise abortion, the government has not taken any concrete steps to amend the prevailing laws that criminalise abortion.
In 2018, the Convention on the Elimination of All Forms of Discrimination Against Women Committee had also recommended that Nepal fully decriminalise abortion in all cases and legalise it at least in the cases of health complications of the mother.
Executive Director of Forum for Women, Law and Development Sabin Shrestha said many women who had suffered miscarriages were unnecessarily indicted in abortion case mainly due to criminalisation of abortion. Shrestha said the government needed to amend the existing laws in line with the CEDAW and UPR recommendation to decriminalise abortion. "As long as abortion is criminalised, many women continue to seek abortion in an unsafe environment which may pose risk to their health," Shrestha added.
Legal Adviser to the Centre for Reproductive Rights Prabhakar Shrestha said the Right to Safe Motherhood and Reproductive Health Rights Act which was supposed to be progressive turned out to be a regressive act as it invoked the punishment provision of penal code that criminalises abortion.
"RSMRHR Act prohibits hospitals and doctors that have not received licence to perform abortion from providing abortion services and thus the act continues to criminalise abortion," he argued.
Advocate Nabin Shrestha said the abortion related provision should be removed from Muluki Criminal Code as there was already a special law, the Right to Safe Motherhood and Reproductive Health Act, 2018. "As long as the Criminal Code which criminalises abortion exists, health professionals who provide abortion services in good faith are likely to face the risk of indictment," he added.
According to Sabin Shrestha, a doctor who terminated the pregnancy of an unwed girl above 18 years of age in Kaski with her consent, faced indictment along with the girl's father after the girl filed an FIR accusing her father and the doctor of terminating her pregnancy. "In the Kaski case, the girl lodged FIR because she was incited by friends. Therefore, there should be adequate safeguards for health professionals," he added.
"The penal code's provision contradicts the RSMRH Act. The code says that women can terminate their foetus up to 12 weeks whereas the Act says that women can do so up to 28 weeks after meeting some conditions," Shrestha said. Senior Manager and Officer In-Charge of Centre for Reproductive Rights Prabina Bajracharya said the conclusion of the UN Rights bodies, including the CEDAW, was that criminalisation of abortion violates women's rights," she argued. She also said putting restriction on abortion on any pretext was like perpetuating discrimination against women.
"Requiring only licensed doctors and clinicians to perform safe abortion is also a barrier for women to receiving reproductive health service," she said.
A medical doctor should not be required to receive another licence just to perform safe abortion," she said. "This restriction has deprived women in remote areas from getting safe abortion services from medical doctors," she added.
A version of this article appears in the print on April 3, 2022, of The Himalayan Times.