Abortion should prima facie be decriminalised with certain exceptions (sex selective abortion, harm to mother's body with intent to hurt foetus and others) as a crime. Decriminalisation does not mean deregulation, and the issue of abortion must be treated as a medical procedure, where the well-being of the women is placed at the centre.
Nepal adopted reproductive health rights as a fundamental right for the first time in its interim constitution 2007 (2063 B.S) under article 20(2) 'Rights of Women'. This was carried forward by the new, existing constitution, 'Constitution of Nepal 2015 (2072 B.S)' under Article 38(2). Furthermore, the Supreme Court in the (2067 B.S) case of Laxmi Dhikta vs Nepal Government clearly defined abortion as an integral aspect of reproductive health rights and women's human right and went on to say that "it is contradictory and incompatible that the issue of abortion which has emerged as a new right is still placed under the strict criminal procedure in the Penal Code (2020) under the Chapter on Homicide", and ordered to regulate the issue of abortion by promulgating separate specific legislation.
At present abortion is regulated by the Country Criminal Code 2017 (2074 B.S) and Safe Motherhood and Reproductive Health-related Act 2018 (2075).
However, both these legislation have criminalised abortion, carrying a prison sentence, except in certain conditions. The contradiction between these legislation, and constitutionally secured fundamental rights, defined by the Supreme Court judgement, is clear. This inconsistency gives rise to a pertinent question: If the constitutional rights listed under the fundamental rights chapter are about protection of women, how can a criminal law that disproportionately (and negatively) affects women be in line with this constitutional objective? To understand the decriminalisation debate, it is first essential to understand the historical perspective of how abortion came under the ambit of criminal law.
According to historian Jeffrey H. Reiman, "the earliest laws of relevance to abortion were not concerned with the voluntary termination of pregnancy by the pregnant woman.
They were rules providing compensation for the death of a foetus resulting from an assault on a pregnant woman".
Their goal appears to have been, not to protect the rights of the foetus, but to protect the rights of fathers.
For instance, the Code of Hammurabi and the Book of Exodus in the Hebrew Bible provide for penalties for an assault causing miscarriage.
The first law prohibiting voluntary abortion appears to be the Middle Assyrian laws, which came into being about 500 years after the Code of Hammurabi.
These laws provided for impalement and no burial for a woman who "has a miscarriage by her own act". Middle Assyria permitted the infanticide of children by the fathers, which shows that this harsh law was aimed at keeping the decision about which offspring to live or die in the hands of their fathers.
Although ancient Rome did not have specific legislation on abortion, the Twelve Tables did allow infanticide of unwanted female newborns and children born with deformities. Nevertheless, under Roman law, the mother, or a third party, who caused the death of the child in utero did commit a type of 'crimen', for which punishment was temporary exile.
Abortion for the larger part of history has thus been viewed, not in terms of a 'medical issue which affects women' but a) either as a method to strengthen a man's position in the family and society or b) developed as a narrative where women were perceived only as a vessel to give birth.
Women's choice, and how the issue impacts them were never considered and, sadly, is still not being considered in many parts of the world.
With the recognition of the 'rights based approach' on abortion, different countries have gradually shifted their legal standing on abortion from strict criminalisation to a medical procedure regulated by medical legislation.
An interesting reference when we discuss about decriminalisation of abortion is the case law of Canada.
Induced abortion was decriminalised in 1988 following the case of R vs Morgentaler, where a group of doctors purposefully set out to challenge Section 251 of the Criminal Code, which set out the conditions for abortion.
The Court held that the Criminal Code was unconstitutional and violated women's rights under Section 7 of the Canadian Charter of Rights and Freedoms – the right to 'life, liberty and security of the person'.
Outside the parliamentary discussions and legislative provisions, the issue of decriminalisation of abortion is advocated by various campaigns.
Diane Munday in 2019 started a petition on change.org to decriminalise abortion in Britain. The 1967 Abortion Act made it legal to access abortion under certain circumstances, but it didn't decriminalise abortion.
The growing leniency towards strict abortion laws and effective regulation of abortion through other legislation worldwide has raised an essential question: 'Is it really just and fair to seek criminal penalty, at the cost of women's dignity and freedom, for something which can be regulated equally effectively by other legal mechanisms?' Abortion in Nepal is thus prima facie a crime, with certain exceptions. Despite reproductive rights being guaranteed in the Constitution as a fundamental right and a judicial decision stating that abortion is an integral aspect of reproductive rights, women in Nepal still face prosecution for taking a decision which directly impacts their overall well-being.
This fear of prosecution along with stigmatisation has further victimised the poor and already vulnerable women in Nepal.
Abortion, thus, should prima facie be decriminalised with certain exceptions (sex selective abortion, harm to mother's body with intent to hurt foetus and others) as a crime. Decriminalisation does not mean deregulation, and the issue of abortion must be treated as a medical procedure, where the well-being of the women is placed at the centre.
A version of this article appears in the print on March 2, 2021, of The Himalayan Times.