Reproductive rights in

Nepal
Presented by:
Roshan Sunar
Rukmani Khadka
Sadhana Deuba
Sadikshya Maharjan
Santosh Yadav
 Reproductive Rights
Reproductive Right is made up of two words as :
Reproductive:
Adjective : relating to or effecting reproduction
Synonym : generative, procreative, progenitive, propagative,
conceptive etc.

Rights:
Rights are the inherent will or interests of individuals which are
legally permitted and guaranteed. The rights must have legal
protection, recognition and enforceability.
Ihering – “Rights are legally protected interest.”
 Reproduction rights are the rights of individuals to decide
whether to reproduce and have reproductive health. This may
include an individual’s right to plan a family, terminate a
pregnancy, use contraceptives, learn about sex education in public
schools and gain access to reproductive health services.
 “Reproductive rights rest on the recognition of the basic rights of
all couples and individuals to decide freely and responsibly the
number, spacing, and timing of their children and to have the
information and means to do so, and the right to attain the highest
standard of sexual and reproductive health. It also includes the
right to make decisions concerning reproduction free of
discrimination, coercion and violence, as expressed in human
rights documents.”
(Source : International Conference on Population and
Development, Programme of Action, Para 7.3)
Where do Reproductive Rights Come From ?
The U.S. Supreme court has recognized for the first time it as a personal
right that is deemed “fundamental” and which extends to procreation
(Skinner v. Oklahoma), contraception (Eisenstadt v. Baird), family
relationships (Prince v. Massachusetts) and child rearing (Pierce v.
Society of sister), however, the U.S. constitution does not explicitly
mention a right to reproduce.

Do Men Have Reproductive Rights ?

The question whether men have reproductive rights is a hotly debated
topic in the world while reproductive rights have been legally recognized
as a women’s right – especially in matter involving abortion, adoption,
and procreation – men’s reproductive rights have been less certain.
Even still, many organizations have claimed men’s reproductive rights on
issues such as false paternity, adoption, abortion choices, and rights over
frozen embryos.
 Legal framework on
reproductive rights
National framework:
1) Constitution of Nepal, 2072
Article 38(2): Every women shall have the right relating to safe
motherhood and reproductive health.
2) Muluki Criminal Code, 2074BS
Chapter 13
• sec 188: provision on not to get abortion
• Sec 189: provision to have legal abortion
• Sec 190:limitation: within 6 month of knoweledge
3) The Right to Safe Motherhood and Reproductive Health
Act, 2075 (2018)
• Sec 6: To provide obstetric care
• Sec 7: Emergency obstetric and newborn care
• Sec 10: Right to obtain family planning service
• Sec 11: Not to get family planning performed forcefully
• Sec 12: Not to get contraceptives used forcefully
• Sec 13: Right to obstetric leave
• Sec 14: To provide additional leave
Chapter-4: Safe Abortion
Sec 15. To perform safe abortion: A pregnant woman shall have the right
to get safe abortion performed in any of the following circumstances:
(a) Fetus (gestation) up to twelve weeks, with the consent of the
pregnant woman,
(b) Fetus (gestation) up to twenty-eight weeks, as per the consent of
such woman, after the opinion of the licensed doctor that there may be
danger upon the life of the pregnant woman or her physical or mental
health may deteriorate or disabled infant may be born in case the abortion
is not performed,
(c) Fetus (gestation) remained due to rape or incest, fetus (gestation) up
to twenty-eight weeks with the consent of the pregnant woman
• (d) Fetus (gestation) up to twenty-eight weeks with the
consent of the woman who is suffering from H.I.V. or other
incurable disease of such nature,
• (e) Fetus (gestation) up to twenty eight weeks with the
consent of the woman, as per the opinion of the health worker
involved in the treatment that damage may occur in the womb
due to defects occurred in the fetus (gestation), or that there is
such defect in the fetus of the womb that it cannot live even
after the birth, that there is condition of disability in the fetus
(gestation) due to genetic defect or any other cause.
Sec 16. Not to get abortion conducted forcefully:
(1) Except in the circumstance as referred to in Section 15, no one
shall conduct or get abortion conducted with an intention to get the
abortion conducted or knowingly or having reason to believe that the
abortion can occur.
(2) No one shall get the abortion conducted by coercing a pregnant
woman, threatening, enticing or tempting her.
(3) If any of the following acts is committed, it shall be deemed to
have got abortion performed:
(a) Getting abortion conducted pursuant to sub-section (2),
(b) Miscarriage that occurs while something is done to the pregnant
woman with some enmity,
(c) Making assistance to commit acts referred to in clauses (a)
and (b),
(4) While conducting abortion, in case the abortion does not
occur instantly but a living infant is born, and if the infant, which
is born as a result of such an act dies immediately, it shall be
deemed to have got the abortion conducted for the purposes of
this Section.
Sec 17. Not to commit abortion upon identifying sex:

(1) No one shall commit or cause to be committed an act to

identify the sex of the fetus in the womb.
(2) A pregnant woman shall not be pressurized or compelled or
intimidated or coerced or enticed or entrapped in undue influence
to identify the sex of the fetus.
(3) Conducting abortion or causing it to be conducted, by
identifying the sex pursuant to sub-sections (1) and (2), is
prohibited.
• Sec 18. Safe abortion service
• Sec 19. To maintain confidentiality
• Chapter-6 Budget Appropriation and Grant for Motherhood
and Reproductive Health
• Sec 22. To appropriate grant amount
• Sec 23. To appropriate budget by Local Level
• Sec 24. Reproductive Health Coordination Committee
• Chapter-7 :Offence and Punishment
I. Nepal’s existing abortion law, in permitting abortion during the first trimester
without restriction as to reason or need for spousal consent, respects women’s
basic human rights and should be reaffirmed.
A. Nepalese Supreme Court jurisprudence

B. International human rights standards

1. Reproductive self-determination
2. Reproductive health care
3. Equality

C. National-level laws and jurisprudence from selected countries

1. Global laws and trends
2. Jurisprudence
II. Spousal authorization requirements for reproductive health services threaten
women’s rights to nondiscrimination, privacy and access to health care, among
others.
A. International human rights standards
B. Regional human rights standards
C. National-level laws and jurisprudence from selected countries
1. Global laws
2. Jurisprudence
III. International and national laws and jurisprudence do not recognize a right
to life of fetuses.
A. International human rights standards
B. Regional human rights standards
C. National-level jurisprudence from selected countries
 International Framework
for Reproductive Rights.
• A broad framework for sexual and reproductive health
was achieved at the Cairo conference 1994 that provided with
a paradigm shift, moving away from prior focus on population
control through fertility control towards a comprehensive
approach that prioritized a rights-based approach to protect
sexual and reproductive health.
• The General Comment 14 emphasizes that ensuring
reproductive health care is a core obligation of the human right
to health and reproductive health services therefore must be
provided through primary health care systems. – Clear
reference to International Conference on Population and
Development (ICPD), Cairo 1994.
• The right to sexual and reproductive health has also been addressed
by a number of treaties and treaty bodies. The 1979 Convention
on the Elimination of All Forms of Discrimination against
Women (CEDAW) makes the most explicit reference
women’s reproductive health ­including the right to  determine the
number and spacing of one’s children, while the 2008 Convention
on the Rights of Persons  with Disabilities underscores the right of
persons with disabilities to enjoy the same choices and services 
around sexual and reproductive health as other individuals (Article
25). General Recommendation No. 24, 1999 addresses women
and health and CEDAW Articles 5­6, 11, ­12, and particularly 16,
address issues related to reproductive health and rights.
• Furthermore, a number of treaties monitoring bodies from the
CEDAW Committee to the Committee on the Rights of the Child
have affirmed and developed the right to reproductive health in
their general comments.
• The Committee on the Rights of the Child (CRC) also protects
children’s right to the highest attainable standard of health (Article
24); General Comment No. 4, 2003 on Adolescent
Health and Development.
• The general right to the highest attainable standard of health is
protected by the International Covenant on Economic, Social and
Cultural Rights (Article 12); General Comment Number 14, 2000.
• Additional support for the right to sexual and reproductive health has
been made by the Committee Against Torture (CAT);
• The Human Rights Committee (HRC), now the Human Rights
Council
• The Committee on the Elimination of All Forms of Racial
Discrimination (CERD). It obligates the states parties to ensure
“access to health care services, including those related to family
planning” and mentions appropriate services in connection with
pregnancy and the right to decide on the number and spacing of
children (Articles 12 and 16).
• Many of these committees have dealt with contentious issues such
as unsafe abortion, making a similar link between illegal unsafe
abortion and high rates of maternal mortality, as had been made
at the ICPD. The Human Rights Committee, for example, which
oversees the International Covenant on Civil and Political
Rights, has explicitly characterized maternal mortality caused by
unsafe abortion as a violation of women's right to life. The high
level of preventable maternal mortality further violates the right to
life, set out in the ICCPR (Article 6).The process of state
reporting to these treaty bodies, along with the submission of
NGO shadow reports, has created important dialogue and
precedent around the interpretation of human rights, including the
right to sexual and reproductive health.
• Within this international legal framework, a number of associated
rights are applicable to the attainment of sexual and reproductive
health
 The following United Nations agencies
and programs assist NHRIs:
• OHCHR – works on all human rights and with NHRIs out of its National
Institutions and Regional Mechanisms Section in Geneva (present on the ground
in 12 regional offices, 12 national offices and with human rights advisors
deployed as part of United Nations country teams); is mandated to promote and
protect the enjoyment and full realization, by all people, of all rights established
in the Charter of the United Nations and in international human rights law. It is
guided in its work by the mandate provided by the General Assembly in
resolution 48/141, the Charter of the United Nations, the Universal Declaration of
Human Rights and subsequent human rights instruments, the Vienna Declaration
and Program of Action of the 1993 World Conference on Human Rights, and the
2005 World Summit Outcome Document.
• UN Women – works on women’s rights and gender equality; • UNAIDS – works
on issues relating to HIV and AIDS;
• UNDP – works on development in general, including the MDGs, and has a
declared intention to work with NHRIs (present in 176 countries);
• UNESCO – works on issues relating to sexuality education;
• UNFPA – is specifically mandated to promote and support
advancement of reproductive rights all over the world (present in
126 countries); UNFPA’s 2014-2017 Strategic Plan furthers this
agenda by identifying the agency’s goal to achieve universal
access to sexual and reproductive health, secure reproductive
rights, and reduce maternal mortality to accelerate progress on the
ICPD agenda.
• It is the mission of the United Nations Population Fund (UNFPA),
“to deliver a world where every pregnancy is wanted, every birth
is safe and every young person’s potential is fulfilled.”
• UNICEF – works on issues relating to children and adolescents,
in a whole range of civil, political, economic, social and cultural
fields, including health, education, eradication of child marriage,
female genital mutilation and other harmful practices, sexual
violence, trafficking in children, etc.;
 WHO – works on sexual
and reproductive health
• According to the World Health Organization (WHO),
sexual and reproductive health involves five key components,
namely:
• Ensuring contraceptive choice and safety and infertility
services; Improving maternal and new born health;
• Reducing sexually transmitted infections, including HIV, and
other reproductive morbidities;
• Eliminating unsafe abortion and providing post-abortion care;
and
• Promoting healthy sexuality, including adolescent health, and
reducing harmful practices.
• There is no single human rights instrument dedicated to
reproductive rights. Rather, the main United Nations and
regional human rights instruments protect the various elements
of reproductive rights.
 Important Cases
1. Achyut Parsad Kharel vs. Office of Prime Minister and
Council of Ministers and Others (2061)
 In Nepalese society the concept that husband and wife are two
entities by physical structure but mentally they are one has been
existed for the longer period of time.
 By mental state, by psychology and by property they are not the
separated which give rise to the concept that wife has no right to
decide about reproductive health, even whether she might die by
the birth of the children due to her weak and anemic position.
 The Supreme Court of Nepal in its response to this writ petition
established the reproductive health right of women.
 It gave women the power to decide the number of children
needed, the time of giving birth, and the birth spacing.
 It said these are absolute rights of women according to
reproductive health right.
2. Adv. Prakash Mani Sharma et.al vs. Gov. of Nepal, Prime
Minister and Office of the Council of Minister and et. Al (2065)
 In this case, the litigant has filed a PIL to protect the women’s
reproductive health rights.
 The case regarding, widespread uterine prolapse in Nepal, the
Supreme Court issued an order of mandamus in the name of
Government of Nepal to bring about an special action plan for
the protection of reproductive health of victim women.
 The court asked:
 Why prolapse is so common in women?
 How women can be protected ?
 What measures can protect women from prolapse ?
 Awareness about the prolapse and it’s prevention should be
raised among all the people whether male or female and
should be practiced to eradicate the problem of prolapse,
especially in Western Nepal.
3. Laxmi Devi Dhikta vs. Government of Nepal(2009 A.D)
 Although abortion has been legal in Nepal since 2002, Lakshmi
Dhikta was unable to obtain one. Dhikta, who comes from an
extremely poor household in the rural western region of Nepal,
could not afford to pay the fee charged for abortion at a public
hospital. As a result, she was forced to continue an unintended
pregnancy.
 The measures ordered by Nepal's Supreme Court include
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. 
• The decision shows that protecting women’s health and lives
means more than just keeping reproductive health services
legal—it means ensuring that those services are in fact
available to everyone who needs them.
• The Supreme Court ruled that the right to abortion is a
fundamental right under the Interim Constitution and issued a
directive order to the government to introduce a
comprehensive abortion law in line with international human
rights law.
• The international framework , Constitution of Nepal(2015) and the Supreme
Court of Nepal, in landmark legal cases, have recognized reproductive rights as
fundamental rights but government has yet to adequately implement the
programs and establish the infrastructure needed to ensure the fulfillment of
these rights in practice.
• State party Report (2012) recognizes that harmful practices such as child
marriage violate women’s rights to be free from discrimination, exploitation,
and violence.
• Moreover, the State Party Report expressly links adolescent pregnancy with
early marriage and acknowledges that early marriage must be curtailed “to
influence early childbearing.
• In 2011, the CEDAW Committee noted that it was “deeply concerned” about
Nepal’s “high rate of unsafe abortion, in particular for women living in poverty,
women from rural villages and women from marginalized communities within
urban areas, in spite of the legalization of abortion in 2002
• According to the World Health Organization (WHO), as of 2013, the
(Maternal Mortality Ratio) MMR in Nepal was 170. Despite an overall
reduction in maternal mortality there are large disparities in MMR across
geographic location, age, and ethnicity in Nepal.
• For example, MMR is much higher in remote and rural districts where
health service access is more limited than in urban areas. This is often
because women do not receive adequate care and support during childbirth.
• Additionally, MMR is much higher for socially marginalized women who
are more likely to experience discrimination, such as Muslim and Dalit
women. Similarly, age is another contributing factor to increased MMR.
• A major study indicates that MMR is lowest for women in their twenties
and is much higher for women under age 20 and women between ages 30-
34.
• The MMR dramatically increases to 962 per 100,000 live births for
women aged 35 and older.
• Nepal still has one of the highest maternal mortality ratios in Asia and
unsafe abortion is the third leading direct cause of maternal deaths.