“Fifteen-year-old Sita (name changed), who got pregnant due to rape, ended her pregnancy by consuming medical pills her father obtained from a local pharmacist. Sita’s district court statement noted that she sought an abortion to safeguard her and her family’s reputation. The court convicted Sita of illegal abortion and sentenced her based on her admission.”

– Center for Reproductive Rights & Forum for Women, Law and Development, ‘Decriminalization of Abortion in Nepal: Imperative to Uphold Women’s Rights’, 2021

The ability to make and exercise decisions about one’s body, sexuality and reproduction is at the core of gender, economic and social justice. Under international human rights law, States are obliged to respect, protect and fulfil rights related to sexual and reproductive health, including the rights to life, health, privacy, information, freedom from ill-treatment, non-discrimination and equality. States are also required to guarantee access to quality sexual and reproductive health information and care, including abortion services.

Human rights bodies and courts worldwide recognise that abortion care is essential healthcare and a critical aspect of fundamental human rights. Everyone has the right to accessible, high-quality abortion care, and no one should be criminalised for seeking or accessing abortion services. Yet, in many countries, abortion continues to be criminalised in one form or another.

Both in India and Nepal, despite progressive legal guarantees, abortion is still regulated under their respective penal laws and criminalised beyond permissible exceptions via the Medical Termination of Pregnancy Act, 1971 (MTP Act) and the Safe Motherhood and Reproductive Health Rights Act, 2018 (SMRHR Act) respectively.

Criminal restrictions on abortion do not deter their incidence. Instead, they compel people to undergo unsafe abortions and abstain from seeking post-abortion care, placing their lives and health at risk. Such criminalisation is rooted in gender-based discrimination, and is part of a range of measures to control the sexuality of women and girls.

Restricted abortion access and care is a punishment and a burden that is only imposed upon those who possess this reproductive capacity. It is also discriminatory because it has been historically based on a patriarchal imperative of motherhood as a role that women cannot and should not escape.

Abortion and human rights: Setting the context

Worldwide, around 73 million induced abortions take place each year, according to the World Health Organization’s (WHO) Abortion Factsheet from 2021. Of all induced abortions, 45 percent are unsafe, and more than half of these occur in Asia, mostly in South and Central Asia.

The criminalisation of abortion leads women, girls, and other pregnant persons to turn to unsafe abortion, which may lead to long-term health consequences (both physical and mental) and death. The WHO estimates that about 4.7–13.2 percent of maternal deaths annually can be attributed to unsafe abortion.

Abortion is a cross-cutting issue impacting all areas of a pregnant person’s life. Unsafe abortions can lead to heavy bleeding, infection, uterine perforation, and damage to the genital tract and internal organs. It is also an expensive affair as travelling to seek abortions, unsafe abortions, and incomplete post-abortion care causes financial loss. Additionally, restrictive abortion regulations impact women’s education, labour force participation, and can affect children’s education and their participation in the labour force later. This is further exacerbated for marginalised populations like people with disabilities, refugees, transgender persons, and poor and rural women.

Decriminalising abortion is necessary for public health considerations and also to ensure the right to life and dignity for all. It is a discriminatory act that directly violates the fundamental rights of women, girls and pregnant persons. Moreover, criminalising abortions has a chilling effect on not just those seeking the procedure but also on healthcare service providers.

Decriminalising abortion

The international consensus on abortion has grown and evolved to support the decriminalisation of abortion as a human rights imperative. Decriminalising abortion encourages access to safe abortion and proper post-abortion care. It does not mean that the law would no longer regulate abortion, but that no one would be punished for providing or having an abortion, and the law provides a positive framework to ensure access to safe abortion.

The WHO defines such decriminalisation as “[r]emoving abortion from all penal or criminal laws, not applying other criminal offences (e.g., murder or manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with, providing information about, or providing abortion, for all relevant actors.”

Decriminalisation may either be full or partial in nature. Partial decriminalisation refers to liberalising restrictive abortion laws where abortion remains punishable under the law in certain circumstances, such as within certain gestational limits or on specific grounds. Whereas full decriminalisation entails the removal of abortion from all penal laws, thereby ensuring that no one is subjected to criminal or punitive sanctions for seeking or having (or being presumed to have sought or had) an abortion, performing an abortion, or assisting others in obtaining or performing an abortion.

India and Nepal currently partially decriminalise abortion.

There has been a growing call for full decriminalisation of abortion, reflecting the reality that even partial criminalisation hinders access. Restrictive laws seek to protect prenatal life and prevent maternal mortality. However, as noted by the WHO, evidence shows they lead to unsafe abortions, preventable deaths, and disability. Partial decriminalisation also has a chilling effect on pregnant persons and healthcare providers, who hesitate to provide full information about the procedure or refuse to conduct it due to fear of criminal charges. This inhibits the exercise of informed consent by pregnant persons. Moreover, criminal prosecution faced by pregnant persons causes stigma, which affects their mental health and self-perception.

The human cost of criminalising abortion is that pregnant persons continue to suffer the physical and mental consequences of forced carrying of pregnancy, unsafe abortion, denial of or abuse in post-abortion care, and trauma from interacting with the criminal justice system.

India and Nepal: Comparative perspectives

Abortion is partially decriminalised in India. Sections 3 (when pregnancies may be terminated by registered medical practitioners) and 5 (Sections 3 and 4 when not to apply) of the MTP Act permit the termination of pregnancies under specific conditions and gestational limits. Abortion outside these bounds is a crime governed by the Indian Penal Code.

Due to this legal matrix and fear of prosecution, doctors often refuse to perform abortions beyond 12 weeks of pregnancy, causing women to approach courts for relief.

The MTP Act was amended in 2021, through which the gestational limit to terminate pregnancies was increased from 12–20 weeks to 20–24 weeks. Although the 2021 amendment allowed abortion access to unmarried women, doctors continued denying it. In X versus The Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi & Anr (2022), the Supreme Court of India ruled that any extra-legal conditions imposed by doctors were untenable and re-emphasised that abortion access extends to unmarried and single women.

Despite these changes to the law, the United Nations Population Fund, in its State of the World Population Report 2022, shows that 67 percent of all abortions in India were unsafe. India’s experience clearly demonstrates the shortcomings of partial decriminalisation.

Nepal partially legalised abortion in 2002, owing to a high incidence of maternal mortality caused by unsafe abortions. In 2009, the Supreme Court of Nepal, in Lakshmi Dhikta versus Nepal Government, a landmark judgment, recognised the need for the full decriminalisation of abortion and emphasised it as a human right. Safe motherhood and reproductive health rights have since been guaranteed in the 2015 Constitution of Nepal as fundamental rights.

These rights further paved the way for the enactment of the SMRHR Act, which provides for safe, quality, affordable and accessible maternal and reproductive health services, including abortion. The SMRHR Act permits abortion with the consent of pregnant women up to 12 weeks of gestation. It also conditionally permits abortion up to 28 weeks of gestation for pregnancies resulting from rape or incest, in situations where the woman suffers from HIV (human immunodeficiency virus) or a similar incurable disease, or when failure to undertake an abortion may pose a threat to the life of a pregnant woman, adversely affect her mental or physical health, or cause a foetal impairment.

The Act prohibits forced abortion— when the procedure is performed without the consent of the pregnant person or when it is coerced. However, abortion remains a criminal offence beyond these prescribed conditions, which means that the risk of pregnant persons seeking unsafe abortions and anyone seeking and providing abortion services being incarcerated, remains.

Evidence gathered by the Center for Reproductive Rights, in fact, shows that women continue to be investigated and prosecuted for abortions. Nepal has since accepted the United Nations Human Rights Council’s Universal Periodic Review recommendation to fully decriminalise abortion. However, it is yet to implement this recommendation.

Key recommendations and the way forward

The experience of countries like Canada that decriminalised abortion years ago reveals that abortion can be safely and ethically regulated in the absence of criminal sanctions. Socio-economic and political considerations aside, decriminalising abortion can be beneficial for developing countries like India and Nepal. However, decriminalising abortion must be accompanied by large-scale awareness programmes intended for pregnant persons, medical practitioners, law enforcement personnel and other stakeholders. To this end, we recommend that:

• States must revise their penal codes to remove any criminal penalties for voluntary abortion, including punitive measures for individuals seeking abortion services, providers, and anyone assisting a pregnant person in accessing abortion services.
• States must fully decriminalise abortion and remove abortion regulations from their penal codes.
• States should create enabling legal environments where pregnant persons are not at risk of prosecution for accessing abortion.
• States must also legalise and regulate abortion in a manner that is consistent with human rights principles to ensure access to available, accessible, acceptable quality abortion care services for all, without discrimination of any kind.

(Radhika Saxena is a lawyer with experience in women’s rights litigation, research and advocacy; and the program manager for South Asia at iProbono. She plays an integral role in streamlining iProbono’s work in Nepal, Bangladesh, Sri Lanka and Pakistan. Prabina Bajracharya is a human rights lawyer and a senior manager for Asia at the Center for Reproductive Rights. At the center, she provides strategic guidance to the Asia Unit in advancing laws and standards on reproductive rights issues. Courtesy: The Leaflet, an independent platform for cutting-edge, progressive, legal & political opinion, founded by Indira Jaising and Anand Grover.)