Nepal: In Prison, For No Crime

23 December 2005

Kathmandu, (Women's Feature Service) - When Dil Bhushan Pathak, a popular newscaster in Nepal, was reading the news one night, he came across an item that caused him to skip a heartbeat. In the remote Achham district in far-western Nepal, a woman had died a painful death. She was undergoing a clandestine abortion using a traditional method - the insertion of a heated rod smeared with herbal paste into the uterus.

These dangerous and unhygienic methods are used in Nepal - mostly rural areas - even today, frequently leading to haemorrhage and infection.
According to the UN State of the World Population 2003 figures, Nepal's maternal mortality rate has doubled in the past seven years, and stands at
905 per 100,000. After Afghanistan, which has a mortality rate of 1,276 per 100,000, Nepal has the second-highest mortality rate in South Asia.

Unable to put the incident out of his mind, Pathak decided to travel all the way from Kathmandu to Achham to understand why the woman had to take this desperate step. Thus was born Newsroom Bahira (Outside the Newsroom), a 23-minute documentary on abortion. That it was made and screened this year at Himalaya Film Festival, a documentary film festival, is a tribute to lawyers, activists and health workers who have been waging a battle since the 1990s for the legalisation of abortion in Nepal.

Even three years ago, the very word was taboo in Nepal. Although activists petitioned Parliament in 1998 for the legalisation of abortion, it took four years for lawmakers to approve the petition. Even after Parliament passed the Abortion Bill in 2002 (also known as the 11th Amendment of the Muluki Ain - Law of the Land - 1959), King Gyanendra (the Nepalese monarch) took six months to give his consent. Since then, from a criminal offence punishable with life imprisonment, abortion became legal.

A woman can have an abortion up to 12 weeks of pregnancy; up to 18 weeks if she is pregnant due to rape or incest; and any time after pregnancy in case of foetal abnormalities or if her life or health is in danger.

The battle, though, is only half won. Opponents of the abortion bill are still seeking to curb a woman's right to abortion. In 2004, a Nepalese lawyer, Achyut Prasad Kharel, petitioned the Supreme Court asking for men's role in the decision. Kharel is contending that since reproduction involves both man and woman, the man's permission is also required to terminate the pregnancy.

Mira Dhungana, a leading lawyer and member of Forum for Women, Law and Development (FWLD), an NGO that has been at the forefront of lobbying for legalisation of abortion in Nepal, filed a public interest litigation challenging this clause. "While Kharel says giving a woman freedom to choose if she should have an abortion goes against the principle of equal rights and creates distinctions between the two sexes, we are challenging him on the ground that abortion, for women, involves the right to life. The high incidence of maternal mortality in Nepal proves that," says Dhungana.

Sapana Pradhan Malla, prominent lawyer and Head of the Forum for Women, Law and Development (FWLD), an NGO that has been at the forefront of lobbying for legalisation of abortion in Nepal, points out another glaring loophole: "Unfortunately, the law has no retrospective effect. So, women who were sent to prison earlier for abortion-related offences still continue to be behind bars."

Before September 2002, abortion was treated on par with infanticide, which was regarded as homicide. In most cases, judges handed down life imprisonment - 20 years in Nepal - although some did use their discretionary powers to reduce the sentence.

In 2001, FWLD and the Centre for Reproductive Law and Policy (CRLP), an INGO, conducted a survey on women prisoners. The study 'Abortion in Nepal:
Women Imprisoned' found 65 women imprisoned for undergoing abortions.
Nearly 60 per cent of them had never been to school, and 47 per cent had received no legal assistance. "This clearly shows that only poor and illiterate women were prosecuted," the study concludes.

"We discovered that some of the so-called abortions were actually miscarriages. In the rural areas, poverty forces women to do hard physical labour even at an advanced stage of pregnancy. So, a woman could have a miscarriage while lifting a heavy load or reaping crops in the field. But neighbours, or her family members, report the incident as an abortion. The woman is arrested without a chance to defend herself," says Malla.

Even in cases of actual infanticide, the woman is more often a victim of social taboos than the perpetrator. "In the villages, men often go abroad for jobs. The women are left behind for years. They may form extramarital relations or fall prey to rape by family members or neighbours. When a pregnancy occurs, the fear of social stigma makes them abandon the infant.
The law however only finds the women guilty, never the men," says Malla.

Lok Maya Adhikari's experience in 1995 is a case in point. It created widespread indignation in Nepal and abroad. Adhikari, then 38, from Jhapa district in southeastern Nepal, became pregnant after a liaison with a family friend. The man advised her to abort. She did so, and was arrested a few months later, resulting in imprisonment. Following her complaint, the man, Bhima Prasad Poudel, was arrested too. Poudel, however, was released after he protested his innocence in court.

Since 2002, NGOs have been lobbying to provide legal assistance to women behind bars. They have also been appealing to the government to use its discretionary powers and release them. Traditionally, on Constitution Day, Democracy Day and the king's birthday, the government commutes the sentences of prisoners. Activists have been requesting the release of women jailed for abortion offences, asserting that they are no threat to society.
Between July 2003 and January 2005, legal assistance and these clemency petitions have resulted in the release of 54 women.

Despite these efforts, there are 21 women still behind bars for a crime that is no longer a crime, says Dhungana.

Women's rights activists are now also concentrating on establishing shelters for freed inmates and providing access to safe abortion. "There are cases when families do not want to take back the freed women due to social stigma," says Dr Arzu Deuba, wife of former prime minister Sher Bahadur Deuba, whose NGO Samanata has been fighting the cases of women still behind bars and running shelters for those who, when they are freed, are disowned by their families.

The government has also begun to support abortion rights activists, making comprehensive abortion care (CAC) services a key component of the Nepal National Safer Motherhood Programme.

In March 2004, Nepal's largest women's hospital, the Kathmandu Maternity Hospital, began offering legal abortion, ending the desperate search by families for a reliable agency. By March 2005, the clinic had served nearly 3,000 clients and trained over 123 care providers. Today, CAC services are being offered in 35 of Nepal's 75 districts.

It is too late for the woman from Accham, but other women can now hope for a better fate.

SOURCE: Women's Feature Service

User comments

There are no comments