The right to bodily autonomy

In December 2001, Shilpa, a young unmarried woman, came to the Prasuti Griha Maternity Hospital in Thapathali seeking an abortion. She was turned away, as providing abortion services meant jail time for the doctors and the woman. A few days later, they saw her again, this time admitted to the hospital with complications — a perforated uterus, pulled down intestines, and infections. She had attempted to induce an abortion at home. Shilpa, whose name has been changed to protect her identity, died two days later. 

“She died a preventable death, as did many other women seeking an abortion back then,” recalls Dr. Anjana Karki, who was a medical officer at the Prasuti Griha in 2001 and saw Shilpa die before her eyes. She is now a senior gynecologist at B&B Hospital and a medical trainer in abortions with Ipas Nepal, a non-governmental organization that works with the Health Ministry to provide abortion services. 

Cases like that of Shilpa have been much rarer ever since Nepal legalized abortion in 2002. Nepal’s fight to legalize abortion, from the pre-2002 period of complete criminalization to almost fully legal today, is regarded as one of the most liberal regimes in South Asia but it is far from perfect. With the possible overturning of Roe v Wade, the American case that legalized abortion in the United States, the legality and necessity of abortion are once again being debated. And even countries as far off as Nepal are not immune to changes in US federal policy, as was evident during the Trump administration’s Global Gag Rule on abortion. It would thus be opportune to take a look back on how abortion came to be legalized, what the current state of abortions is in Nepal, and how any change in US federal law could affect Nepal. 

A history of abortion

Abortion was only legalized in Nepal in 2002, after years of tireless advocacy by feminist organizations, advocates, and gynecologists. The Muluki Ain 11th Amendment Bill, believed to be one of the most progressive reform bills in Nepali history, was passed by Parliament on March 14, 2002, and subsequently received royal assent on September 6, 2002, effectively becoming law. However, it took another two years for legalization to come into play when the Prasuti Griha in Thapathali finally began offering abortion services in March 2004. 

Before the amendment, any and all abortions were illegal, with the woman, the service provider, and even her family liable for prison terms on charges of murder for seeking abortion services. 

“Back then, the culprits of the crime of abortion were primarily the woman and everyone who aided her: her family and the doctor,” says Neha Gurung, an advocate for reproductive health with the Forum for Women, Law, and Development (FWLD). “The woman becomes almost the sole culprit, but the societal factors that force her to abort are simply overlooked.” 

Article 38 (2) of the 2015 Constitution too enshrined every woman’s right to safe motherhood and reproductive health as a ‘fundamental right’. Subsequently, the Nepal government came out with a specific act that aimed to address reproductive health and rights through the Safe Motherhood and Reproductive Health Right Act (SMRHR) in 2018. Clause 3 (5) of the Act states clearly, “Each woman shall have the right to obtain abortion services, in accordance with this Act.” 

According to the Act, every woman has an unrestricted right to safe abortion services up to 12 weeks of pregnancy, or the first trimester, given that they consent to it. From 13 to 28 weeks, abortion is still accessible but under certain conditions — if the life of the woman or her mental or physical health is at threat, in cases of rape or incest, in cases when the pregnant woman has been infected with HIV/AIDS or any such incurable disease, and finally, in cases where the fetus has such a disability that impacts viability.

The Act also allows minors — that is, women below eighteen years of age — to access safe abortion. As minors are legally incapable of giving consent, they will require a guardian or a custodian. Clause 18 (4) states: “Notwithstanding anything contained in sub-section (3), in respect of a woman with unsound mind, or unable to give the consent at the time of seeking services or who has not completed eighteen years of age, consent may be given by her guardian or custodian.” 

“The law does not mandate that consent has to be given by the parents for a minor,” says advocate Gurung. “Any guardian can give consent and fill the form for the minor. If there are no guardians, then a companion or sister would qualify to grant consent. However, if the young girl is in a position to not bring anyone along with her, the doctor can still provide service based on the best interest of the child.” 

The Act, however, prohibits forced abortions as well as ‘sex-selective abortion’, that is, aborting a child on the determination of the sex of the child as a male or, more commonly, female. 

The Act takes a rights-based approach to reproductive health but it is far from perfect. It refers to the criminal code for punishment for ‘illegal abortions’, which includes a one-year jail term and a maximum fine of Rs. 10,000 for up to 12 weeks of pregnancy, three years, and a maximum fine of Rs. 30,000 for 12-25 weeks of pregnancy, and up to five years, and a maximum fine of Rs. 50,000 after 25 weeks, if abortion is sought under illegal conditions. 

A contradiction appears when comparing provisions related to abortion in the Criminal Code and the specific Act. While the Act provides for abortions up to 28 weeks in cases of rape and/or incest, the Criminal Code specifies just 18 weeks under the same conditions. While lawyers might know that the specific Act takes precedence over a general code like the Criminal Code, laypeople will be unlikely to know the difference, leading to confusion and complications. 

Another failure of the Act is the lack of distinction between abortion and miscarriage. Miscarriage would fall under the definition of abortion in the Act, which is the “spontaneous termination of the fetus before the fetus is capable of natural birth”. Thus, miscarriage, which occurs accidentally, involuntarily, and without any external interventions, could also be conceived of as illegal abortion. 

Further, the SMRHR Act prohibits abortion after 28 weeks even when the woman’s life is in danger. All the four ‘conditions’ after the first trimester are exhausted after 28 weeks and any abortion afterward could be deemed illegal and liable for punishment. Similarly, the woman will also be convicted if she undergoes an abortion in an institution that is not a ‘listed site’ and the doctor is not a ‘listed provider’. Such sites and providers might not be safe, as they are not under the purview of the authorities, but women who do not have access to listed sites should not be punished for seeking abortions at unlisted ones, say advocates. 

In 2021, during a Universal Periodic Review (UPR) by the UN Human Rights Council, Nepal agreed to decriminalize all abortions. Despite the decriminalization of abortion through the Muluki Ain in 2002, abortion remained partially criminalized. On July 8, 2021, Nepal agreed to France’s recommendation at the UPR, filed as a joint submission by organizations like the Center for Reproductive Rights, FWLD, and Justice and Rights Institute Nepal. Earlier in 2018, the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) Committee had also recommended absolute and unconditional decriminalization of abortion even after 28 weeks. However, there has been no progress on this front yet. 

Currently, abortion services are also free across the country at public health institutions. This was achieved through a landmark decision in Lakshmi Dhikta v Government of Nepal. Lakshmi Devi Dhikta had sought an abortion for her sixth pregnancy, after already having five children. On recognizing the financial and physical burden of the unwanted pregnancy, she went to a governmental hospital seeking an abortion and was asked to pay Rs. 1,130. But by the time she collected the money, her pregnancy had crossed the 12-week limit and she was forced to carry the pregnancy to term. In the case that was subsequently filed, the Supreme Court held that financial barriers should not prevent the enforcement of a fundamental right. Thus, the Court directed the government to make abortion services affordable. 

“Abortion services from the government are free of cost, whether it is medical abortion which is induced by pills or surgical abortion,” says Dr. Deeb Dangol, a senior gynecologist and also an abortion trainer with Ipas Nepal. “In the private centers, surgical abortions cost between from Rs. 3,000-6,000 but I also have heard of cases where a hospital charged a woman up to Rs. 50,000 when she declared that she was unmarried.” 

Roe v Wade and its impacts on Nepal

Last month, a leaked draft opinion from the Supreme Court of the United States stated that Roe v Wade, the landmark 1973 case that established women’s constitutional right to abortion in the US, could be reversed. While the final ruling will only be published in the next two months, the ruling in its current draft could strip away the bodily autonomy of millions of women in the US and, potentially, all around the world. The consequences would be tragic: abortion would be illegal in as many as 20 states in the US when it is legal in every state today. Many would then have to travel to states where abortion is legal. Ultimately, low-income, young, people with disabilities, and women of color would suffer the most. 

This American dystopia is not remote to Nepal. During the Trump administration, a ‘Global Gag Rule’ (GGR) crippled Nepal’s reproductive health services. The Mexico City Policy, commonly known as the Global Gag Rule, prohibited American funding to organizations that provide abortion services as well as counseling and referrals. Such US-funded organizations could not even use funding from elsewhere to work around abortion or even talk about it. This was also extended to contraceptive services, family planning, awareness programs, and treatment of sexually transmitted diseases. 

In Nepal, the Family Planning Association Nepal (FPAN), a member association of the International Planned Parenthood Federation (IPPF) and the oldest organization working for family planning in Nepal, faced the brunt of the gag rule. In 2019, FPAN received only $1.5 million in funding, despite having an operational cost of $9 million. This lack of funding led to layovers of over hundreds of long-term staff and community volunteers and the closing down of abortion centers and family planning clinics in rural Nepal in up to 11 districts. 

The Gag Rule also affected the services of ‘MS Ladies’, outreach workers from Marie Stopes, which provides abortion and family planning services. These women travel to remote Nepal to provide healthcare services, including medical abortion and counseling on reproductive health and sexuality. When Marie Stopes International rejected the Global Gag Rule, it too ceased to receive funding from the US, leading it to shut down services in 11 districts. 

The Gag Rule affected Nepal to such an extent that even radio talk shows like Khuldulee.com, where people could message and call the host every Wednesday and Friday for questions regarding taboos of sex, queerness, consent, etc, were barred from uttering the word ‘abortion’ because the talk show was partly funded by USAID. 

If Roe v Wade is overturned in the US, abortion will no longer be federally legal in the United States, which could lead to a repeat of the Global Gag Rule, especially when conservative Republicans are in power. While abortion remains legal under Nepali law and will continue to receive financial support from the government, many non-governmental actors who receive US funding could be affected. Nepali organizations that work in family planning and around abortions could suffer the same fate they did while Donald Trump was in power. 

The US repeal of abortion could also lead to wide-ranging changes in perspective and attitude. Conservative leaders around the world could also be emboldened to restrict abortions. Even in Nepal, any doctor is free to reject abortion services on grounds of ‘conscientious objection’, where they refuse to give such services because of contrasting personal beliefs. 

Such prejudices could especially hurt unmarried women. Nepali society heavily stigmatizes premarital sex and young unmarried women who lack financial independence cannot afford to carry out unplanned pregnancies. 

“When I went to Marie Stopes for an abortion, I was given chura potey (bangles and beaded thread that are worn by married women) after my surgery was complete,” said Preeti, who was unmarried when she sought an abortion. “It was chilling to see that after the already traumatic experience of an abortion.”

Preeti’s name has been changed upon her request to protect her identity. 

According to Dr. Dangol, chura potey was initially distributed to protect the interests of married women so that they would not look sick or like they had just had an abortion when they left the center. 

“We do not usually inquire about the marriage status of the woman till 12 weeks,” said Dr. Karki. “After 28 weeks, when an unmarried woman comes to us, we try to counsel her and find out if she was pressurized in any way. If she still wants an abortion, we give her a questionnaire for any mental stress that the unplanned pregnancy might have caused. If she qualifies, she can easily access abortion services.” 

Countless studies from the world have shown that banning abortions does not stop abortions from taking place. Unwanted pregnancies have always existed and women will choose dangerous abortion methods if safe ones are not available. 

“Abortion is often navigated through the unending debate between ‘pro-life’ and ‘pro-choice’. However, abortion is as much pro-life as it is pro-choice,” says advocate Gurung. “Supporting safe abortion is supporting the choices of women. It is to respect our bodily autonomy.”