WUNRN
Center for Reproductive Rights
In a recent decision in the case of Lakshmi Dhikta v. Nepal, the Supreme Court of Nepal ruled that the country’s government must guarantee access to safe and affordable abortion services. Specifically, it affirmed the need for a comprehensive abortion law and emphasized the government’s obligation to ensure that no woman is denied a legal abortion just because she cannot pay for it.
The
case, which was filed by the Forum for Women, Law and Development, Pro-Public
and a group of human rights lawyers in February 2007, centers on Lakshmi
Dhikta, an impoverished, rural woman. Lakshmi was unable to get a legal
abortion when she became pregnant for the sixth time because she could not pay
the required service fee – Nepali rupees 1130 (approximately 20 USD at the
time). As a consequence, she was forced to carry her unintended pregnancy
to term.
Despite abortion being legal since 2002, and
The court’s progressive decision explains its May 2009 order
aimed at improving women’s access to abortion in
The
court’s decision provides the legal rationale for its May 2009 order and
clearly anchors the right to abortion within national and international law and
jurisprudence. Importantly, the court recognizes the right to
abortion as an essential component of reproductive rights, indicating that a
government cannot recognize reproductive rights generally and yet deny access
to abortion.
The
court boldly addresses specific arguments that seek to negate women’s
reproductive rights:
A fetus does not have the legal status of a human life
The
court explains that since there is no universal consensus defining when life
begins, and because Nepalese law does not distinguish fetal rights, it will not
recognize the fetus as a human life. Further, the court notes that since
there is no fetus without a mother, there can be no infringement of a woman's
right to physical and mental health and well-being in the name of a fetus; the
fetus cannot supersede the protection of a woman’s physical and mental health
and well-being. The decision provides several examples to demonstrate
that the recognition of any right before birth would be inconsistent with this
and violates a myriad of women's fundamental human rights. Interestingly,
the Supreme Court of Nepal cites in its decision Roe v. Wade, noting that the
United States Supreme Court did not recognize the fetus as a human life.
The right to abortion is central to the right to equality
and non-discrimination
The
court recognizes the inextricable link between the right to abortion, the right
to equality, and the right to freedom from discrimination. It points out that
just as the law does not force a man to use his body in certain ways, a woman
should not be forced to use her body in ways she does not want to.
Further, the court recognizes that the denial of a legal abortion results in forced
pregnancy and childbirth. This, in turn, causes irreparable harm to women
and violates many of their fundamental human rights.
A woman has a right to privacy when deciding to have an
abortion
The
court also affirms a woman’s right to privacy in matters of abortion by
describing pregnancy as a woman’s personal matter.
A comprehensive abortion law is needed to fully protect
women’s rights
The
legal provisions for abortion currently reside in the chapter on life in the
National Code (Muluki Ain). Punishments for crimes against human life
such as murder are also found in this section, implicitly identifying abortion
as a crime akin to murder. In its decision, the Court makes it clear that a
woman’s reproductive capacity cannot be used against her, and can in no way be
grounds to punish her. Based on the fact that the court has not
recognized the fetus as a human life, the Court states that legal provisions on
abortion must be contained in a separate law and disassociated from discussion
of murder.
Compensation is warranted when a woman is forced to
continue an unwanted pregnancy
The
Nepal Supreme Court does not directly compensate Lakshmi for her suffering
arising from the forced continuation of pregnancy in this case, as compensation
would have to be sought through a civil claim in a lower court. However,
the Court does recognize compensation as being justified in such cases on
account of the irreparable harm caused to women when they are forced to carry
an unwanted pregnancy to term. It references two of the Center’s cases, Tysiac v. Poland
and Paulina v. Mexico,
to do so; both these cases sought and successfully obtained compensation for
its plaintiffs.
The Center provided support in developing Lakshmi Dhikta v.
(The information contained herein is based on an unofficial translation
of the Supreme Court’s decision.)