The current law on abortion as provided in the Muluki Penal Code respects rights and principles recognized by the Nepalese Supreme Court and in international human rights treaties Nepal has ratified. It is also consistent with liberal legal stances on abortion of countries around the world. This body of domestic, international and comparative law strongly supports the assertion that respect for women’s basic human rights, including those to reproductive self-determination, reproductive health care, and gender and sex equality, requires that women be able to make autonomous decisions to terminate their unplanned or otherwise inappropriate pregnancies.
The road to reform of the abortion law was a long one, characterized by periods of both low and high intensity of effort in both the public and private spheres. The following paragraphs expalin the history of the reform process and the synergistic combination of factors that contributed to the reform.
Abortion laws before 2002
Until this latest reform, abortion in Nepal was prohibited by the Muluki Ain. Based on ancient Hindu scriptures, traditions and practices, the Muluki Ain was first introduced in 1854, then amended several times and extensively revised in 1963. It did not permit the termination of pregnancies even if they were the result of rape or incest or threatened the woman’s life. In effect, it equated abortion with infanticide, and infanticide with other kinds of murder or homicide, and did not recognise any mitigating factors or exceptional circumstances under which abortion was not a crime of murder. Physicians and other medical practitioners were prohibited from recommending or performing abortion without exception. abortion, would be deliberately misclassified as a crime of infanticide, willful killing or murder, in order to have a woman convicted and incarcerated, so that she would lose her rights to any family property. A number of studies of women imprisoned for abortion6–8 have shown that police and prosecutors pressed charges for murder, homicide or willful killing because they carried a much stiffer penalty – as high as life imprisonment. In these cases, the law did not clearly distinguish between abortion and murder. Often, these injustices were perpetrated by greedy in-laws working in collusion with litigators and others connected with the courts, so that the family would not have to share land or other property with the hapless woman.
Abortion laws after 2002
Before 14 March 2002, abortion was crime as per the Nepalese criminal law. The national parliament of Nepal passed a bill (Muluki Ain 11th Amendment Bill) which amended various sections of the Muluki Ain (national Legal Code) of 1963, effectively liberalising the very strict, decades-old abortion law. Subsequently, in 2004, the bill became law.
The legal provisions in Muluki Penal Code, 2017
Section 189 of Chapter 13 on ‘Offences against protection of abortion’ provides legal provisions relating to abortion. It provides the legal ground of the right to termination of pregnancy to all women without regard to their past or present marital status, on the following grounds:
- Where the pregnancy of up to twelve weeks is terminated with consent of the pregnant women,
- Where pregnancy is terminated with consent of the pregnant woman upon the opinion of at least two physicians having met the required qualifications that if pregnancy is not terminated, the pregnant women’s health may be in danger or her physical or mental health may deteriorate or a handicapped child will born,
- where the pregnancy of up to eighteen weeks conceived from rape or incest is terminated with the consent of the concerned women,
- Where a pregnancy of a woman having HIV Positive or other incurable disease of similar nature is terminated with her consent.
However, Section 188 of this Chapter has prohibited terminating the pregnancy. Therefore, it can be said that the criminal law of Nepal has not given the full free of termination of pregnancy in Nepal.
Nepalese Supreme Court jurisprudence
Two landmark decisions of the Supreme Court offer strong interpretations of women’s rights to privacy and self-determination over matters relating to their sexual and reproductive lives, which are important for the instant case. In Annapurna Rana v. Kathmandu District Court and Others, petitioner challenged a court order compelling her to undergo a “virginity test.” The Supreme Court invalidated the order as a violation of petitioner’s constitutional right to privacy, recognizing the right to privacy over one’s own body and reproductive organs as an “inviolable” right under the constitution.[1]
In the “Marital Rape Case,” the Court strongly articulated women’s rights to self-determination, self-respect, “independent existence,” and equality and equal protection of the law in holding that marital rape should be recognized as a crime under the law of Nepal. The Court held that the rights to self-determination, self-respect and independent existence are inseparable and inalienable, and are equally available to women before as well as after marriage; as the Court recognized, “women do not lose human rights because of marriage.” Although the specific facts of the case differ from the case at hand, there is a common underlying principle: compelling a woman to use her sexual or reproductive capacity against her will—whether by forcing her to engage in sexual intercourse or compelling her to carry an unwanted pregnancy to term—is a serious violation of her human rights. As the Court recognized in this case, “[a]ny act which … infringes upon the right of women to independent decision-making or which makes women slaves or an object or property is not compatible in the context of the modern world ….”[2]
[1] Raju Prasad Chapagai, Reproductive Rights of Nepalese Women: Use of Litigation and It’s Impact (paper presented at a roundtable on Reproductive Health and Rights Advocacy in Nepal: Searching for Legal Strategies and Solutions, Aug. 7-8, 2004, Kathmandu, Nepal).
[2] On behalf of the Forum for Women, Law, and Development v. His Majesty’s Government, Writ No. 55, 2058 B.S.