Legalisation Of Abortion
Some Challenging Tasks

By Harikala Adhikary

HOPE not even a single lady will be imprisoned in charge of infanticide in the coming days. No report of illegal abortion will be recorded in human right reports of the country. No lady will be ashamed because of the unwanted pregnancy. It is because Nepal has finally legalised abortion.

Responsible

Illegal abortion was responsible for imprisonment of many innocent girls. Still there are many girls behind the bar because they were found guilty of ‘homicide’. Besides, unsafe abortion was one of the major causes of maternal death in the country where maternal mortality rate is higher. But there are questions: Will it solve all the problems related to unsafe and illegal abortion? Is the country able to deliver services needed for legal abortion? What are the possibilities of distortion of legal provision? As Nepal has introduced the liberal act regarding the abortion, it is high time to consider all the consequences.

In its latest figure, Alan Guttmacher Institute (AGI), a non-profit organisation that focuses on sexual and reproductive health research, policy analysis and publication education, has mentioned that about 46 million abortions occur each year. Twenty-six million who undergo abortion do so in countries where liberal abortion laws exist. And the remaining 20 million undergo in the countries where abortion is either restricted or illegal.

There are some other eye-opening figures too. Roughly 20 million cases of abortion are performed under the unsafe conditions. A figure from the World Health Organisation (WHO) says that every day, fifty-five thousand unsafe abortions take place, out of which 95 per cent occurs in developing countries. The WHO further estimates that between 10 to 50 per cent women who undergo unsafe abortion have complications like incomplete abortion, sepsis, haemorrhage and abdominal injuries.
It is because of the complications of unsafe abortion, according to WHO, an estimated eighty thousand women die each year, which is at least 13 per cent of global maternal morality. However, reality may be different. The actual number of deaths due to complication in abortion may be much greater than the WHO’s estimation because women who die outside of hospitals may not be identified as victims of unsafe abortion.

Nepalese women have been suffering from dangerous back-street abortions. They have been loosing lives. They do this, willingly or not willingly.Recently, an alarming figure on abortion cases was published in Nepalese newspapers. It was reported that an estimated seventy thousand abortions occur each year in the country.

Further, it is estimated that about four thousand women die each year from illegal abortions. A study conducted by the Maternity Hospital of Kathmandu revealed that one thousand 961 cases of abortion complication cases were registered during the study period of May 15, 1995 to August 31, 1996.Quoting one of the gynecologists working in the hospital, Dr. Aruna Uprety had reported. “Most of those cases which have come to the hospitals with abortion related complications, most of them done by quacks. Many come to us in a very bad conditions.” A total of 326 cases of abortion were registered in police office all over the country during the period of 1997 to 2001.

Legally it was banned in the country but many doctors and health workers were found involved in abortion in the country. Besides, it is reported that, many village women know some kind of traditional medicine to abort the foetus in the first two to three months of pregnancy.
In Nepal, feminists and activists worked to legalise the abortion from the perspective of health and justice for women. Organisations including Forum for Women, Law and Development, Centre for Research on Environment, Health and Population Activities and Family Planning Association of Nepal played crucial role in raising voices for legalising the abortion.

In 1998, Family Planning Association of Nepal (FPAN) conducted a survey covering members of parliament and gynaecologists. The result was encouraging. According to the survey, 74 per cent of then members of Parliament were in favour of legalising abortion. Similarly, 94 per cent of gynaecologists contacted were in favour of it.

The FPAN, a member of International Planned Parenthood Federation (IPPF), together with IPPF South Asia region had produced a film ‘For the Sake of Our Women’ on the abortion law in Nepal and its consequences on women’s rights and health. The IPPF and FPAN had launched an advocacy campaign for legal reform in 1994.

Likewise, Nepal Medical Association had also forwarded a programme suggesting the conditions under which doctors could perform the abortion in hospitals. In the series of efforts, one of the members of National Assembly Sunil Kumar Bhandary had registered a bill related to abortion as a personal bill in the House couples of years back but that could not come under house-business.

The final result of about one decade’s tireless effort was the approval of the bill making abortion legal in the country. Nepali lawmakers overwhelmingly approved the legalisation related to abortion in March 14,2002, six years after it was registered in the Parliament. The Act became effective from September 23, 2002.

However, one thing should be bear in mind that Nepal still does not have separate act on abortion.
Though, abortion has been legalised, some conditions have been imposed there. Violating the specified conditions is punishable. Accordingly, penalty for the termination of 12 weeks pregnancy is up to one year, up to 25 weeks pregnancy is up to three years and above 25 weeks pregnancy is up to five years imprisonment.

One vital point which should be considered in mind is that decision making power on whether the act of abortion should be performed or not is given to the pregnant lady. Nobody is allowed to influence pregnant lady for abortion or identification of the sex of unborn child (foetus) by using force, threat, or by persuading or inducing.

Women chose abortion when faced with unwanted pregnancy. The reasons might be failure to use contraception, lack of access to family planning information and supplies, pressure from sexual partner not to use contraceptives, contraceptive failure, rape etc. AGI says that nearly four in 10 pregnancies in the world are unplanned. According to a figure disclosed by the Centre for Research on Environment, Health and Population Activities, in Nepali, 37 per cent pregnancies are unplanned or unwanted.

In ‘International Conference on Population and Development’ held in 1994, the world’s nations had agreed that unsafe abortion is a major public health concern, and the governments should work to eliminate unsafe abortion and make abortion safer in countries where it is legal.

This is what Nepal should do. Legalising the abortion is one part and making it accessible and safer to rural mass is the other part, which is a Herculean task. So, translating the act into practice is still a big challenge. In the rural areas, there are neither enough health posts nor health workers. As far as gynecologist is concerned, it is said 140 gyneacologists out of 150 are residing in Kathmandu. In addition to this, existing health medical practitioners and health workers are not trained for this job.

Lapse

Besides, Prof. Dr. Shanta Thapaliya, President of LACC, while presenting her paper in national workshop held in Kathmandu recently, has pointed out some lapses in the Act. According to Dr. Thapaliya, no definition of abortion has been given. There is no provision of maintaining secrecy from medical practitioners’ side, which violates right to privacy. There is no specific provision in case of failure of contraceptives among others.

Creating awareness among the target group is another important factor. Checking the misuse of provision abortion is also a challenging task.

Domestic Violence: An Urgent Need

By Sabin Shrestha

VIOLENCE is an obstacle for the achievement of equality, development and peace. Violence is acknowledged as a violation of human rights. In every society, violence against women occurs to a greater or a lesser extent. According to the Declaration on the Elimination of Violence against Women (DEVAW) adopted by the United Nations General Assembly on December 20, 1993, Violence against Women (VAW) means any acts of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm, or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occuring in public or private life. Violence against women is used as a weapon in the hands of men through which they establish their supremacy and exploit women. Therefore, violence against women is recognised as a form of gender inequality.

Prevalent

Besides other forms of violence against women domestic violence is one of the most prevalent form, which transcends the boundaries of countries, class, caste, age, education, income, ethnicity and culture. In general, domestic violence is an abuse -physical, mental, sexual or economical -that one person in a family uses to control the other. In most of the cases domestic violence is committed against women by their husbands or in-laws. Instead of protection, the family members subject women to various abuses and even death that nullifies their enjoyment of human rights and personal liberties.

According to the General Recommendation No. 19 of the CEDAW Committee, domestic violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes. Economic dependency and cultural value system force many women to stay in a violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women’s health at risk and impair their ability to participate in family life and public life on the basis of equality. Domestic violence is aggravated by social pressures i.e. shame in exposing certain abuses; women’s lack of access to legal information; lack of effective laws, inadequate efforts by public authorities to promote awareness and enforcing existing laws; and absence of educational and other means to address the causes and consequences of violence. Images of women in the media, in particular those that depict women as sex objects are also one of the contributing factors for the continued prevalence of such violence.

International communities have made welcome statements supporting women’s human rights by ratifying the UN Conventions protecting and promoting women’s rights. But the gap between governments’ commitment for women’s human rights in the international community and fulfilling this commitment at the national level is very wide. Norms and standards of human rights are set at international levels, but the critical and challenging step is the realisation of these norms and standards at the national level. The challenge now is to ensure that Nepal implement strategies that are effective, relevant and inclusive of all gender-based violence. It has to be recognised that domestic violence is a denial of fundamental rights and freedoms of individuals, reaffirmed in UDHR, ICCPR, ICESCR, CEDAW, DEVAW and CRC.

Till now, there is no specific legislation to deal with domestic violence as it is continuously viewed and treated as a private family matter. This does not mean that acts of domestic violence are not punishable in Nepal. However, only those domestic violences prosecuted and punished which came under the ambit of law. For example, if there is a case of physical assault, a perpetrator can be prosecuted under the Chapter on Assault of the Country Code, 1963. In the last session of Parliament, the government of Nepal has taken initiative to register the Domestic Violence (Crime and Punishment) Bill, 2002 in the Parliament in February 22, 2002. Government’s initiative to introduce the separate Bill on the domestic violence was a positive step and it has been welcomed by the civil society. The Bill has included physical and mental abuses as domestic violence, provision of interim relief, victim friendly provisions such as compensation and camera court, special priority in the procedures including reporting from anyone. After general discussion, the House of Representatives passed the Bill on April 12, 2002. The Bill was under the consideration of National Assembly when the Parliament was dissolved on May 21, 2002. It has to be reintroduced in the next session.
Though the initiative of proposing the Bill is a welcome step, the Bill needs reformation to effectively fight domestic violence. While the Bill was in the Parliament, Forum for Women, Law and Development (FWLD), an NGO, made an intervention by preparing and publishing an advocacy leaflet on the ‘Domestic Violence (Crime and Punishment) Bill’ to highlight the changes needed in the Bill and to educate the stakeholders regarding this. The areas that need reformation in the Domestic Violence Bill are broad definition of family members, and inclusion of economic and sexual abuses as domestic violence. In addition to that same procedural treatment for physical and mental abuses, exceptional provision of general burden of proof, provision of emergency monetary relief and preventive relief, provision of voluntary and compulsory counselling, and establishment of separate mechanism to execute the decision effectively. Right to reside in home, right to obtain protection order and right to priority for child custody are other major provisions that should be incorporated in the Bill.

Fundamental

However, domestic violence is not only seen as a legal problem, which can be eliminated by incorporating specific law alone. It is a social and psychological problem. Therefore, fundamental changes need to be made the social system and in the attitudes of people towards women to address the problem.