What is abortion?

Abortion isthe artificial or spontaneous termination of a pregnancy before the embryo or fetus can survive on its own outside a woman’s uterus.The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus: such as

a: spontaneous expulsion of a human fetus during the first 12 weeks of gestation. This definition contains the element of miscarriage which is often unintended or is the result of accident. It also refers to unintentional or accidental abortion.

b: induced expulsion of a human fetus. Intention is a major element in this definition, which is illegal and is criminalized.

c: Contagious Abortion: An abortion caused by a bacterial species called Brucella, which occasionally causes spontaneous human abortion. It is not human induced and thus not criminalized.

Previous Understanding on Abortion in Nepal:

Abortion in Nepal was prohibited by the previous Muluki Ain 2020 before 11th amendment. Based on ancient Hindu scriptures, traditions and practices, termination of pregnancy was not permitted even if they were the result of rape or incest or a threat to the woman's life. In effects, it equated abortion with infanticide and infanticide with other kinds of murder or homicide. It did not recognize 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. Due to this kind of strict restrictions, most of the abortions that took place were unsafe. Only a small portion of women mostly those living in urban and semi urban areas were able to afford the cost of and had the access to safe abortion procedures. The harsh provisions of the old law induced unsafe abortion and sometimes even a spontaneous abortion would be misclassified as infanticide, willful killing or murder. This shows that the law did not clearly distinguish between abortion and murder and as a consequence, many women were obliged to stay behind bars.

Owing to the negative consequences of criminalizing abortion such as high maternal mortality rate, unsafe abortion practices and deteriorating status of women in terms of equality with men, abortion was legalized in 2002. (11th amendment of Muluki Ain). abortion in Nepal was prohibited by the Muluki Ain. 1,2 Based on ancient Hindu scriptures, traditions and prac- tices, 3 abortion in Nepal was prohibited by the Muluki Ain. 1,2 Based on ancient Hindu scriptures, traditions and prac- tices, 3 abortion in Nepal was prohibited by the Muluki Ain. 1,2

Based on ancient Hindu scriptures, traditions and prac-tices, 3 abortion in Nepal was prohibited by the Muluki Ain. 1,2

Based on ancient Hindu scriptures, traditions and prac- tices, 3 theMuluki Ain was first introduced in 1854, then amended several times and exten- sively revised in 1963. It did not permit the

Still there is a debate among feminist groups and human rights activists regarding whether abortion should be a matter of choice of women or not. There exists basically 2 major arguments with regard to abortion i.e. pro-choice and pro-life which proliferated as a result of movement started during the 19th century.

Pro- Life Movement:

This movement took its peak at 1969, which is also termed as right to life movement. This movement opposes elective or therapeutic abortion on both moral and sectarian grounds. It supports the legal prohibition or restriction of abortion. Thus it emphasized on criminalizing the act of abortion.

The base argument behind this movement was that human life begins at conception and that the human zygote (fetus) is a person and therefore has a right to life. Anti-abortion activists concede arguments for permissible abortion in exceptional circumstances such as incest, rape, severe fatal defects or when the women's health is at risk.

Arguments in favor of pro-life:

1. Abortion represents the killing of an innocent member of human family which makes abortion an immoral and unethical act. This argument reiterates that no one has the right to kill an innocent people.
2. Majority of unborn children are female. An unborn child has a body that is separate to that of mother. She has her own unique DNA. The generic code directs the development and growth of its own body from the movement of conception and therefore it violates the right not to be killed. This argument more from feminist perspective.
3. Whether abortion is legalized or not, women die as a result of abortion. It's possible that more women die as a result of legal abortion than dying before its legalization. End of abortion culture would prevent women from dying due to abortion.
4. Killing uterus violates the natural law.
5. Supporter of pro-life movement are also against the abortion of child conceived as a result of rape. They are of the view that if imposing death penalty to rapists is cruel, the innocent child conceived in rape doesn’t deserve death penalty for the crimes of his/her father. Rape victims are four times more likely to die within the next year after the abortion with the higher rate of suicide, murder, drug overdose etc. Thus a baby is not the worst thing that could ever happen to rape victim but abortion is.

Pro -choice movement: it basically started in United States which is also known as abortion rights movements. It was a sociopolitical movement which supported the view that a woman should have a legal right to an elective abortion. This movement was followed by a landmark court decision in US i.e. Roe Vs Wade 1973 which decriminalized and legalized abortion.

Arguments in favor of Pro-choice:

1. Women's right is at center while retrieving arguments regarding abortion as pro-choice. It is often linked with bodily rights of women which hold the opinion that women have a moral right to decide what to do with their bodies. Right to control one's own body is affected when women are not allowed to abort unwanted fetus. It affects freedom to choice and forces unwilling to bear the unwanted. Since fetus is a part of her body, she should have right to decide whether or not to abort. Right to abortion is vital for individual women to achieve their full potential.
2. Banning abortion puts women at risk by forcing them to use illegal abortion means. This impacts their right to reproductive health. As abortion is basic and fundamental concern of women, they should be allowed to make choice as to whether to continue or terminate her pregnancy.
3. Women should be recognized as a person not as a container for the fetus.
4. Abortion is an important element of women's right because women are more affected by abortion debate both individually and from gender perspective. Pregnancy disrupts her body, education, employment and entire family life and it has an impact on physical as well as mental health of a women.(this argument was put forward in the case of Roe Vs Wade, 1973)
5. Right to abortion is vital for freedom and equality. From this perspective women's liberation movement sees abortion right as a vital for gender equality. Right to choose abortion enables women to achieve equality with men. Women's freedom and life choices are limited by bearing children and the stereotypes social custom and oppressive duty that went with it.

Nepalese context:

Prior to 2002, Nepal had strict anti-abortion laws which imposed imprisonment not only to pregnant women who sleeked abortion but also their family members. This led to a rampant increase in unsafe abortion.

Abortion was legalized in March 2002 under the 11th amendment to civil court. The high maternal mortality rate led to government legalizing it. The newly introduced Muluki Criminal Court, 2074 has criminalized abortion by punishing those who abort and makes other abort (Section 188). According to Section 189, with intention to abort, if someone conducts or makes other to abort knowing that certain acts result into abortion then also it is considered a criminal act. Forceful abortion followed by threat, influence against the consent of pregnant women is also restricted. The quantum of punishment is depends upon the gestation period of the fetus.

* Fetus up to 12 weeks: up to 1 year imprisonment+ Rs 10,000 fine

* Fetus from 12 to 25 weeks: 3 years imprisonment+ Rs 30,000 fine

*More than 25 weeks: 5 years imprisonment+ Rs 50,000 fine

However, Section 189 has permitted abortion under the following grounds:

The above legal provisions have criminalized abortion which shows that the law of Nepal is in favor of pro-life view regarding abortion. However, it has also given several grounds under which a woman can go through abortion being based on her right to reproductive health and right to life. This shows that Nepalese abortion law is guided by both pro-choice and pro-life view.

The law of Nepal is yet to define abortion. This has created confusion whether accidental abortion, miscarriage, contagious abortion, abortion caused by battering comes under abortion or not under the legal definition which imposes punishment. However, abortion caused by an attempt to kill a pregnant woman who is carrying a fetus of 25 weeks or more is punishable. Such an act imposes the perpetrator with additional 5 years of imprisonment as per section 188 of criminal code 2074.

The Nepalese provision has invited more ground for debate regarding abortion as the chapter on partition of property has laid down a provision whereby one can separate property in the name of an unborn child while conducting partition of property among the family members.

All in all, safe abortion free from coercion and violence is a reproductive choice the women should be allowed to have because it has a direct connection with the health and life of a person.

Advocate KripaSubedi, Legal Associates, Judicial path and legal service (JPL) Executive Director, AdwaitaSamajikSanstha(ASS)