Lakshmi, a poor woman from the far-western region of Nepal who already had five children, became pregnant for the sixth time. She and her husband knew that having another child would be financially strenuous and would take a significant toll on Lakshmi’s health, so they requested for legal abortion at a government hospital. However, there they were asked to pay a fee of 1,130 rupees (about USD 14.46) for the abortion. Due to her poor economic status, Lakshmi could not pay the fee and therefore had not option except to carry the unintended pregnancy to term.
In February 22, 2007, Lakshmi, with the support from Forum for Women, Law and Development (FWLD) and in collaboration with other co-petitioners, filed a writ petition in the Supreme Court of Nepal. The writ petition challenged the Nepal government’s failure to ensure adequate access to safe abortion services despite the decriminalization of abortion on broad grounds in 2002. Lakshmi claimed her inability to receive a safe and legal abortion violated her reproductive rights and other fundamental rights, including the right to live with dignity, freedom, equality and non-discrimination, self-determination, and confidentiality. The petition further alleged that this violates Nepal’s human rights obligations under international treaties, as well as the then Interim Constitution of Nepal, 2007. The petition called on the Court to order the enactment of a separate law on abortion to ensure women’s access to safe and affordable abortion services.
In the landmark decision, issued in May 2009, Nepal’s Supreme Court issued an order of mandamus to the Nepal Government to ensure women’s access to safe and affordable abortion services through necessary and appropriate measures including maintaining confidentiality of women who receive abortion services; removing disparities in service fee; and raising public awareness. The Court also issued a directive order to the Nepal Government – specifically the Office of the Prime Minister and the Council of Ministers, the Ministry of Health and Population, and the Ministry of Law and Justice to enact a separate and comprehensive law on abortion incorporating the aforementioned issues and reproductive health rights provisions from international human rights treaties.
The decision not only reaffirmed the government’s obligation to guarantee safe and affordable access to abortion services for all women, but also recognized that reproductive rights are an integral part of women’s human rights, and importantly, that this includes the right to abortion. The Court acknowledged Nepal’s human rights obligations under international law, as well as under its own Interim Constitution, which recognizes the right to reproductive health and abortion as constituting aspects of women’s human rights. The Court clearly stated that, as Nepal’s Interim Constitution recognizes the right to reproductive health as a fundamental right, the government has the primary obligation to prioritize its implementation. The Court emphasized the government’s obligation to ensure that no woman is denied a legal abortion just because she cannot pay for it and described women’s inability to obtain an abortion because of unaffordability of service as “unjust.”
The Court further recognized the inextricable link between women’s human rights and a range of other rights, including the rights to health; reproductive health and family planning; marry freely or found a family; to determine whether to have children and to decide the number and spacing; to privacy; to non-discrimination; to be free from torture and other cruel, inhuman or degrading treatment; freedom from sexual violence; and to benefit from scientific progress. The Court specifically recognized women’s right to abortion as an important and integral part of their right to reproductive self-determination, indicating that “[a] woman is the master of her own body.” Further, the Court recognized that denying legal abortion results in forced pregnancy and childbirth which causes irreparable harm to women and violates many of their fundamental human rights, particularly the right to freedom from violence. The Court also affirmed a woman’s right to privacy in matters of abortion by describing pregnancy as a woman’s personal matter that warrants legal protection. The Court further clarified that Nepal’s Constitution and laws have not dealt with any right of a fetus, thus a fetus does not have an independent existence and it owes its existence to the woman.
Highlighting the significance of a separate and comprehensive law on abortion from a rights- based approach, the Court noted that the existing legal provisions on abortion reside in the Chapter on Homicide of the, Nepal’s Country Code, which is “unsuitable to keep provisions of abortion.” It recognized the necessity of regulating abortion as a separate and specific issue through the introduction of separate legislation residing outside the criminal law framework.
Historically, Nepal’s abortion law was one of the most restrictive and harshly implemented in the world. In 2002, after years of advocacy by national women’s rights organizations, public health experts, and international human rights groups, the Muluki Ain (the Country Code) was amended and decriminalized abortion without restriction as to reason during the first twelve weeks of pregnancy. While this constituted a significant victory for women’s rights and was hailed as an important health measure, it was not sufficient in ensuring women’s access to safe abortion services. Lakshmi and others v. Government of Nepal was filed demanding government’s accountability for its failure to ensure women’s access to safe and legal abortion services. This decision in this case was ground-breaking for its recognition of abortion as part of a woman’s fundamental right to reproductive health and ordering that the government take steps to ensure that no woman is denied safe abortion services due to their inability to pay the service fee. The Supreme Court also issued a directive order to enact separate and comprehensive law on abortion incorporating reproductive health-related provisions from international human rights laws.