The Legality of Abortion
In Association with PSI Nepal
In the context of Nepal, many might not even know that abortion is legal to let alone the fact that if they choose to make that decision they have various institutions they can go to have "Safe Abortion." Due to the vagueness and sensitivity of the topic, it has somewhat become a taboo in the society which leaves the women facing this challenging situation in a very vulnerable state. Through the connections of legal and medical, we hope to bring to our readers how it is legal and that safe abortion is possible.
With the legal expert, we shall explore the legality of abortion and the right procedure to seek abortion whereas in consultation with the medical expert we shall let the readers know what "Safe Abortion is".
Exploring Legality
In Conversation with Sabin Shrestha, Executive Director, Forum For Women, Law and Development (FWLD)
How does the constitution of Nepal protect a women's right to abortion?
The Constitution of Nepal has provisioned Reproductive Health as a fundamental right in its Article 38(2), which states, “Every woman shall have the right relating to safe motherhood and reproductive health”. The landmark judgment of Supreme Court in the case of Laxmi vs. Government of Nepal has interpreted about the reproductive health, which includes adopting a comprehensive abortion law; establishing a government fund to cover abortion procedure costs; ensuring stronger safeguards for women’s privacy; promoting access to safe services for all women, and disseminating information about safe abortion services to health service providers and the public. Hence, women’s right to abortion, being a part of reproductive health right has been protected by the Constitution of Nepal.
Could you please differentiate safe and unsafe abortion according to the law? And are individuals exempt from the law if they conduct unsafe abortion?
Safe Motherhood and Reproductive Health Rights Act, 2018 was enacted on September 18, 2018, which is an umbrella Act that covers reproductive health and rights. Chapter 4 of the Act provisioned about Safe Abortion according to which, the abortion conducted under the following circumstances are considered safe abortion;
- Up to twelve weeks of pregnancy with the consent of a pregnant woman;
- Up to twenty-eight weeks of pregnancy with the consent of the concerned woman, if in the opinion of a licensed physician that if an abortion is not performed, there may be a danger to the life of a pregnant woman or her physical or mental health may deteriorate or a child born will be impaired;
- Up to twenty-eight weeks of pregnancy with the consent of the pregnant woman in case the conception is a result of rape or incest;
- Up to twenty-eight weeks of pregnancy with the consent of the woman who is infected with a virus that deteriorates the immune system (HIV) or suffering from any similar incurable disease;
- Up to twenty-eight weeks of pregnancy with the consent of the pregnant woman, if in the opinion of the health service provider involved in the treatment, due to fetal impairment the fetus is likely to become deformed due to any genetic disorder or any other reason.
The abortion conducted in other than the mentioned circumstances is held as an unsafe abortion.
Are there any legal implications to unsafe abortion?
Yes, there are legal implications to unsafe abortion in Section 25 of the Act. Whoever commits the following acts shall deem to have committed an offence under the Safe Motherhood and Reproductive Health Rights Act, 2018;
- Abortion (conducted), as referred to in Section 16 (Forced Abortion prohibited)
- Commission of any act of identification of the sex of the fetus, in contravention with sub-section 1 and 2 of Section 17(Sex-selective abortion prohibited);
- Abortion conducted after sex determination, as referred to in sub-section 3 of Section 17 (Sex-selective abortion prohibited);
- Disclosure of confidentiality or caused to be disclosed, in contravention with sub-section 2 of Section 19 (Confidentiality to be maintained).
The provision of punishment is mentioned in Section 26 of the Act according to which, if anyone commits any act that is described as an offence under Section 25 shall be liable to the following punishment;
- Punishment in accordance with Section 188 of the National Penal Code, 2074 for committing or abetting to commit the offence referred to in clauses (g), (h) and (i) i.e. Forced Abortion, Sex-selective abortion ;
- Fine up to fifty thousand rupees for committing or abetting to commit crime as referred to in clause (j) i.e. Disclosure of confidentiality or caused to be disclosed.
The Medical Journey
In conversation with Dr. Tumla Lacoul Shah, M.D specialized in Family Planning & Infertility care, CEO of Sukhi Pariwar Clinic.
What are the causes and preventive measures of unwanted pregnancy?
Firstly, to understand unwanted pregnancy, one needs to know what the cause of it is. Number one, commonly, when people don’t use, can’t afford or can’t find access to contraceptive devices. In some cases, even when people do use them, they don’t know how to use it properly which, again, is a result of lack of counselling. Number two, especially in countries like this, the number of rape cases constantly increases, leading to more unwanted pregnancies.
To prevent unwanted pregnancy, family planning is the most essential and feasible option. More people need to be made aware of family planning, in detail. Similarly, to make the concept of family planning more effective, it should be easily available for the locals to understand and use, not just in government level but in private level as well. When I was working with the Nepal fertility care centre as a medical director and coordinator, we had brought in a project that initiated the fact that family planning should also be done in private sectors in Nepal by training the medical expertise about the concept and making every equipment readily available.
Once an individual realizes an unwanted pregnancy, how strenuous is the mental journey to abortion?
The first thing is stress. Especially if an individual already has a child and is not looking forward to having another one, they are stressed. Their blood pressure increases, they get out of place with their thoughts and cannot take mental control of themselves. There also might be possibilities of family pressure that only increases the stress levels, as family support is one of the topmost needs in situations like this when it comes to guidance, counselling, and encouragement. The other thing is, she might grow more towards depression. She won’t be able to take care of the family she already has and her own mind, as well as physical health, can start to degrade, directly affecting her work or studies. She might panic about the situation, as normally; people don’t know what to do or how to react in situations like this. Again, family support is the most important factor. Similarly, she needs someone to guide her through the journey, counsel her and make her believe that things are going to be okay.
Could you please briefly differentiate safe and unsafe abortion?
Safe abortion is the type of abortion done by a trained person in a government-listed place. Every health expert and clinic that does abortion must hold the license from the government for safe abortion. In order for the clinic to hold a license, they have to meet the criteria required such as hygiene, equipment, experts, cleanliness, and all that. Similarly, to differentiate, unsafe abortion is the kind of abortion done by an untrained person in an unlisted place. According to the rules and regulations of the government, abortion should be done before 12 weeks of conceiving or else the abortion is, again, considered unsafe.
How much of health risk is conducting unsafe abortion?
According to WHO, unsafe abortion is defined as a procedure for terminating unintended pregnancy carried out either by a person lacking skill or in an environment that doesn’t confirm the minimal medical standard.
The main risk of conducting unsafe abortion is an infection. There is a very high chance that the woman might be infected. Moreover, if the infection reaches the blood, which is called Septicemia, it can lead to death. Similarly, sometimes if the process cannot be completed and there might be excessive bleeding, which is also called hemorrhage. There can also be chances that the woman might get internal injuries due to a lack of expertise in the abortion process, which is even more dangerous.
What are the various post-abortion care an individual and members of the family have to follow, both physically and mentally?
Physically, it is important to maintain proper hygiene. When it comes to mental well-being, because of the high level of stress involved in the female, the most important factor is post-abortion counselling, both from the doctor and from the family. She also needs to rest as much as she needs after abortion.
- After 11 days, the woman can again conceive so proper method of family planning should be used.
- To prevent any possible infection, a condom should be used for the next one month after abortion.
- A small amount of blood discharge and cramps are normal after abortion.
- There are no particular food restrictions.
- The woman should rest as much as she can, without doing any household or external work.
- Warm water should be used during cleansing and hygiene should be properly maintained.
- The designated medication schedule should be properly followed and completed.
- If the menstrual cycle doesn’t continue until 45 days of abortion, doctors or clinics should be consulted.
- In case of high fever, an increase in bleeding and painful stomach cramps, a doctor should be consulted as soon as possible.
- The pregnancy test is yet shown positive after 3 months of abortion, so it is not a subject to panic about.
