Persistent advocacy efforts by women's reproductive rights and health activists have finally paid off. The first hard-won results of their intense lobbying came this March, when parliament approved the 11th Amendment to the Muluki Ain, which for the first time in Nepal legalised abortion, if conditionally. Last month, the Bill finally became an Act after receiving the royal seal.
But legalising abortion in some situations is not an end in itself. Public health workers say that the hard part begins now-implementing the law effectively. Unsafe abortion is identified as a major killer of women of reproductive age in Nepal-studies say that as many as six women die everyday due to abortion-related complications.
"Knowledge travels very slowly here. Even court judges don't know, at the moment, that abortion is legal in certain situations," says Sabin Shrestha, an advocate associated with Forum for Women, Law and Development (FWLD). Shrestha and others fear that this lack of knowledge means that women will continue to be victimised. An FWLD study report made public earlier this year is damming about the unbending attitude of the court judges all over Nepal towards women facing abortion charges. The study, which covers the period from 1997-1999, found that 68 percent of women facing abortion charges were convicted. In 1997, one in five women in Nepal's jails is incarcerated on the charge of abortion.
Reproductive rights activists worry in private that the government doesn't seem interested in actually making the new regulations effective. In a 2000 survey by the Centre for Research on Environment Health and Population (CREHPA), 93 percent of urban medical practitioners surveyed believed that legalising abortion would reduce unsafe abortion-related maternal morbidity and mortality. But even strong medical opinion didn't prevent the government machinery from slowing down alarmingly over the changing of this Bill into law. Traditionally, a bill gets immediate approval from the palace following approval from parliament. But the amendment to the Civil Code that legalised abortion had to wait six months to get the royal approval. And in that time, virtually nothing was done to educate the general public or even the bodies that would be responsible for enforcing the legislation.
The new law does nothing for women currently in custody on abortion charges. "The present law fails to decriminalise those already in legal custody," says Shrestha. The law is completely silent about releasing those already convicted, and even about women currently under trial. As with other crimes, women already convicted of abortion can only be relieved by a royal pardon on the recommendation of the cabinet. Those under trial can have their cases withdrawn by the court, again following a cabinet recommendation.
The women serving time aren't really in a position to demand that their situation be reviewed. A study by the US-based Centre for Reproductive Law and Policy with FWLD found that a majority of women on trial or in prison for abortion had no legal representation, and 60 percent of them never even went to school. These women lack family support and access to social rehabilitation facilities.
The other glaring omission in the new law is that while it technically legalises abortion, it does not actually make provisions for improving access to safe abortions. The new law fixes 12 weeks as the upper time limit for a woman to have a legal abortion, but often that's just not enough time for a rural woman who has to first make a tough choice, nearly always with no counselling or professional advice, and then take time out to travel elsewhere, funds permitting, to have the procedure. "The proportion of women approaching unqualified practitioners and outflow to India for abortion is not likely to drop immediately," says Anand Tamang, director of CREHPA.
In order to make safe abortion services more easily available, the new law allows trained health workers at health post levels to perform abortions. A 12-week time period is fixed as the safest period within which to have an abortion, and the technique is relatively simple. Activists like Tamang are satisfied with this provision, but caution that it needs to be revised in about five years to the WHO standard of 20 weeks. The overall improvement in health facilities, says Tamang, will likely allow for the change.
The majority of women in urban areas seeking abortion services are those with unwanted and mistimed pregnancies. A CREHPA survey shows that almost 43 percent of private medical outlets reported dealing with clients for whom contraception had failed, and nearly three-fourth reported receiving clients with unwanted pregnancies.
The law was also put into place before the Ministry of Health could draft a new abortion policy. One of the most critical issues that will be addressed in the draft policy, consultations for which will begin next month, is pricing. One impact of the legalisation of abortion is expected to be a drop in the cost of the procedure. Before legalisation, an abortion in the first trimester used to cost Rs 7000 to Rs 10,000. The CREHPA 2000 survey found that the 52.5 percent of urban-based medical practitioners expected the cost to drop if abortion were legalised, while 38 thought it would "only to some extent".
Monitoring abortion practices will be another difficult legal challenge. Medical practitioners fear that Nepal will see a spurt of sex-selective abortion. According to the CREHPA survey, 36 percent of the surveyed doctors said sex selective abortion will increase "to a large extent".