UNSAFE ABORTION: VIOLATION OF WOMEN'S RIGHT TO REPRODUCTIVE AND SEXUAL HEALTH A STUDY WITH REFERENCE TO NEPAL Sonali Regrni A thesis submitted in conformity with the requirements for the degree of Master of Laws Graduate Department of the Facuity of Law University of Toronto O Copyright by Sonali Regmi, 2001 1*1 National Library Bibliotheque nationale ofCanada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rue Wdlington Ottawa ON K1A ON4 OüawaON K1AûN4 Canada canada 'Rte author has granteci a non- L'auteur a accordé une licence non exciusive licence allowing the exclusive pamettant à la National Library of Canada to Bibliothèque nationale du Canada de reprod&, loan, distribute or sen reproduire, prêter, distribuer ou copies of this thesis in microfom, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in diis thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. UNSAFE ABORTION: VIOLATION OF WOMEN'S RIGHT TO REPRODUCTIVE AND SEXUAL HEALTH A STUDY WTH REFERENCE TO NEPAL Master of Laws, 200 1 Sonali Regmi Faculty of Law University of Toronto Abstract Women have been taking resort to abortion since ages. However, even today stringent abortion law andor hurdles in access to safe and affordable abortion services have led them to take resort to unsafe abortion practices resulting in high matemal rnortality rates and life long complications violating their reproductive and sexual rights. This thesis looks into the problem of unsafe abortion in Nepal that has resulted from its stringent anti-abortion law, which has affected the health and lives of women and violated their rights. This thesis argues that the Govemment of Nepal is under an obligation to stop the continuing violation of women's reproductive and sexual rights by changing its present stringent law relating to abortion in accordance to its obligations under national and international law, and provide access to safe and affordable abortion to al1 women without discrimination. Acknowiedgments 1 would like to thank Professor Bernard M. Dickens and Professor Rebecca J. Cook for giving me the opportunity to conduct research in the field of my choice and giving me their valuable comments from tirne to time. Thanks to the University of Toronto for providing me the "Reproductive Health Law Fellowship", which enabled me to undertake this project. 1 would also like to thank my parents, Vithalmo Mahadik and Pratibha Mahadik, because of whom 1 have corne so far in academic life and my late grandrnother, Pushpalata Chavan, who always believed in me. 1 wish to thank Shiva Kumar Giri for reading through the drafts so many times and giving valuable suggestions, finding time fiom his busy schedule. Thanks are also due to Renu Gin, who has always been very supportive and to Syanu (Siddhartha Kumar Giri) for his smiles and gurgles. Finally, thanks to my colleague and husband Kumar Regmi for reading through the roughest of my cirafts and giving his blunt cornments that made me work harder, and also for being by my side and never letting me get nervous over the deadlines and always making me happy. Table of Contents Introduction Chapter 1 Problem of Unsafe Abortion in Nepal Introduction Definition Reasons why women resort to unsafe abortion 1- 3.1 Socio-cultural reasons 1.3.1.1 hgarried Women 1.3.1.2 Widows 1.3.1 -3 Unmarried girls 1 -3.1- 4 Victims of rape or incest Family Planning Program in Nepal Stringent ant i-abortion law Effects of penalisation of abortion 1.6.1 Effects on the health of wornen 1.6.1.1 Maternal mortality 1 -6.1. 1 Maternal morbidity 1.6.2 Effects on the quality of services 1.6.3 Effects on public health I .6.4 Other effects Conclusion Chapter 2 Law Relating to Abortion in Nepal 2. f Introduction 2.2 Hindu position on abortion 2.3 Law relating to abortion in Nepal 2.3.1 Present position 2.4 Implementation of law relating to abortion in Nepal 2.5 Opposition to legalization of abortion 2.5.1 Statusofwomen 2.6 Present Bill in the Nepalese Parliament relating to liberalization of abortion 2.6.1 Provisions relating to abortion in the "Country Code (Eleventh Amendment Bill, 1999" 2.6.2 Status of the Bill 2.7 Conclusion Chapter 3 Unsafe Abortion: Violation of Women's Rights 3.1 Introduction 3.2 Violation of right to reproductive self-determination 3.3 Violation of right to life 3.4 Violation of rïght to non-discrimination on the basis of sex 3.5 Violation of ri@ to health 3.6 Obligation of the Government of Nepal Chapter 4 Determinants of Prevention of Unsafe Abortion 4.1 Introduction 3.2 Legalization of abortion 4.2.1 Recognition of abortion as a right of wornen 4.2.2 Third party authorization 4.2.3 Limits on the period of gestation 4.2.4 Medical facilities and personnel 4.2.5 Mandatory counselling 4.3 Access to safe and affordable abortion services 4.3.1 India's abortion law and iis implementation 4.3.2 Health care system of Nepal 4.3.3 Women's access to health care 4.3.4 Reproductive Health Strategy 4.4 Women's Empowement 4.5 Conclusion Conclusion Introduction Unsafe abortion is one of the senous problems faced by the thousands of Nepalese women. This situation has directly resulted fiom the fact that, in Nepal, abortion is penalized under al1 circumstances except when the termination of pregnancy is a result of an act of benevolent nature.' One direct consequence of penalizing abortion is the alarming increase in the clandestinely performed unsafe abortions leading to high matemal mortality and morbidity rates. This is proved fiom the statistics, which shows that Nepal has a high maternal mortality rate of 1500 per hundred thousand where more than 50% of the matemal deaths are a result of unsafe abortions and the complications arising out of them.' Stringent anti-abortion law has pre-ernpted the possibility to have safe abortion in cases when it is required which has not only affected the health of women but also has violated their reproductive and sexual rïghts. This thesis studies this problem of unsafe abortion in Nepal and analyses the legal issues relating to it fi-om the perspective of women's health and reproductive rights. Abortion is a widely practiced method of fertility control and throughout history women have taken resort to such practices.3 At the sarne time, the sexuality and reproductive capacity of women has been controlled by men under the pretext of religion and culture ' See Muluki Ain (Country Code) Nepai, 1963, Chapter on Homicide, S. 28 [translated by author] [hereinafier Muiuki Ain]. For discussion on the law relating to abortion in Nepal see Chapter 2, below, at 34- 63. ' United Nations Population Division, "World Abortion Policies" (New York: Population Division, 1999), [hereinafier World Abortion Policies]; See WHO Division of Reproductive Health, Unsafe Aborfion: Global and regional esfima~eos f incidence of maternal morfality due 10 unsafe aborrions lr~irha listing ofavailable counf? data (Geneva: WHO, 1998) at 68 [hereinafier Unsafe Abortion]. ' See, e.g. Rosalind P. Petchesky. Aborrion and Women's Choice (Boston: Northeastern University Press, 1990) [hereinafter Abortion and Wornen's Choice]; Andrzej Kulczycki, The Abortion Debare in World Arena (New York: Routledge, 1999) [hereinafier Abortion Debate in World Arena] . and one of the important issues of pregnancy, which affects their life, has been kept out of their control. They have been forced to continue pregnancies under the fear of moral, societal and legal prohibitions, which reflects the attitude of the society. However, such moral or legal prohibitions against abortion have not deterred women from undertaking abortions but have forced them to go underground in search of reproductive control. Though the issue of abortion has occupied a central stage in the philosophical debate around the world, the probIem of unsafe abortions and its effects on the reproductive and sexual rights of women is of recent ~ r i ~ iTnhe. ~pro blem of unsafe abortion is one of the most neglected problerns in the developing world. Thousands of women die every year due to the non-availability of safe abortion. The recent World Health Organisation (WHO) estimate shows that throughout the world approximately 585,000 women die every year from pregnancy related causesS and out of this 15% of deaths result fiorn unsafe abortions and the proportions are as high as 50% in developing co~ntriesN.~ea rly 50 million abortions are performed in the world every year (30 million of these are performed in developing countries) and 20 million of these abortions are unsafe abortions' resulting in 78.000 materna1 deaths each year.8 It is estimated that nearly 90% of al1 unsafe abortions take place in the developing world and in 94% of these countries' law restricts induced "bortion and Women's Choice, ibid.; Abortion Debate in World Arena, ibid. * See Rebecca J. Cook, Bernard M. Dickens & Laura E. Bliss, "lnternational Developments in Abortion Law from 1988 to 1998"( 1999) 89 American Journal of Public Health 580fhereinafler International Developments in Abortion Law]. 6 See World Health Organisation, Medicol A./êthod~foTr ermination of Pregnancy (Geneva: WHO, 1997) at 1 1 [hereinafter Medical Methods]. 7 See Axel.1 Mundigo & Cynthia Indriso eds., Abortion in the Developing World (New Delhi : WHO & Vistaar Publications, 1999) at 24. ' See lnternational Developments in Abortion Law, supra note 5 at 580. ab~rtionM.~a ternai deaths arising out of induced abortion are 1 in every 250 procedures in developing countries, whereas in developed countries it averages 1 in every 3,700 procedures.'O The complete neglect of women's reproductive health and their rights over their sexuality and reproductive tùnctions has led to such an unprecedented death of women ail over the world. With the emergence of women's rights movement in the west and the growing recognition of women's equality in al1 matters of life, there has ben a growing recognition of ' women's right to their body and their right to decide about their pregnancy.' This movement in the West has resulted in paranteehg women partial right to control their w&" reproductive capacity. For example, in the United States of America. the Roe v decision of 1973, gives women the right to obtain an abortion until the end of first trimester of pregnancy. However, on the grounds of the State's compelling interest in protecting the matemal health, some restrictions are placed on the second trimester abortions and likewise on the grounds of State's compelling intercst in the protecting the potential human life, the State cm prohibit abortion in the last trimester of pregnancy. Yet, most of the developing countries have liberalised their abortion Iaws with a concern for women's health rather than the recognition of their rights.I3 lbid. Ibid. at 583. 'O " Set generally Abortion and Women's Choice, supra note 3; Samuel W. Buell, "Criminal Abortion Revisited (1 99 1 ) 66 New York University Law Review at 1 774 [hereinafter Criminal Abortion Revisited]; James Kingston and Anthony Whelan with lvana Bacik, Aborrior1 and the Lmv (Dublin: Sweet &Maxwell, 1997) [hereinafter Abonion and the Law]. ''410 U.S 113 (1973). l3 Susan Dwyer & Joel Feinberç, The Problem ofAborlion (Albany: Wadsworth Publishing Company, 1997) [hereinafler Problern of Abortion]: Louis P. Pojman & Francis J. Beckwith, The Aborrion Controvwsy: 25 yeurs aJer Roe v Wade (Albany: Wadsworth Publishing Company, 1998) [hereina fier The Abortion Controversy]. Furthemore, in recent times, this issue has gained momentum globally and women's reproductive health and rights issues have received acceptance by the States Parties to various conferences, in line with various international human rights treaties. It has been rightly argued that reproductive and sexual rights are important liuman rights because they touch the basic rights of women/girls, their rights over their body. It is a daim of bodily integrity and ability to decide how one would like to exercise her sexual and reproductive choices." At the same time these issues are hotly debated at international forums and the emerging consensus at international level that autonomy should be given to women in these areasI5 has also threatened the fundamentalkt fiom the east and west.I6 It is interesting that these forces generally disagree on many issues but get united when the question of denying women's right over their body cornes into the picture. In the name of family or religious values, they intend to perpetuate the subordination of female population. l7 14 See generally Rebecca J. Cook, "Human Rights and Reproductive Self-Determination" (1994/95) 44 American University Law Review 975Ehereinafter Reproductive Self-Determination]; Bharati Sadasivam, "The Rights Fnmework in Reproductive Health Advocacy: A Reappraisal" (1 997) 8 Hastings Women's L.J. 3 13Ehereinafier Rights Framework]; Corinne Pncker, "Defining and Delineatinç the Right to Reproductive Choice" (1998) 67 Nordic Journal of International Law 67 [hereinafter Right to Reproductive Choice]; Maja Kirilova Eriksson, "Ahortion and Reproductive Health: Making International Law More Responsive to Women's Needs", in Women in International Human Rigltts Law Vol.3, Kelly D. Askin & Dorean M. Koeing eds., (New York: Transnational Publishers, 2001) at 3-71 [hereinafler Abortion and Reproductive Health]. I? See specially, United Nations, Report of the International Conference on Population and Development, U.N.Doc, AKONF. 17 111 3 ( 1994)[hereinafier Cairo Conference]; United Nations, Report of the Fourth World Conference on Women, U.N.Doc. NCONF. 177/20 (1 997) [hereinafier Beijing Platform]. 16 In Beijing Conference, several States, inciuding the Holy See, lslamic Republic of Iran, Libya echoed the traditional interpretation of the family and mamage where female position in the family is always controlled and dominated by the male member. See Anita Anand, Gouri Salvi, Beijing: UN Fourrlt World Conference on Women (New Delhi: Women's Feature Service, 1998). 17R eproductive Self Determination, supra note 14 at 337-339.