Third-party authorization for abortion in Nepal. Where do we stand?

Nepal, compared to other South Asian countries, has taken a giant leap in recognizing sexual and reproductive rights through various levels. While the progress is not yet sufficient, it has certainly hit the ground running. Article 38(2) of the Constitution of Nepal 2015, has guaranteed the right to safe motherhood and reproductive health. In Nepal, access to safe abortion services is regulated under the ‘Safe Motherhood and Reproductive Health Rights Act’ (SMRH Act) of 2018. This Act decriminalizes abortion and provides legal provisions for women to access safe abortion services. The SMRH Act allows for abortion on several grounds, including cases where the continuation of pregnancy poses a risk to the life or physical or mental health of the woman, cases of rape or incest, fetal abnormalities, or when the pregnancy is a result of contraceptive failure in married couples. Abortion is permitted up to 28 weeks of gestation in cases where the woman's life is in danger, and up to 12 weeks of gestation for other reasons. In certain circumstances, with the approval of a medical board, abortions can be performed up to 28 weeks. Aborting female no longer requires spousal/parental/judicial consent and that somehow releases the air of objectivity for authorization. That being said,  given the societal structure, the traditional norms and values override this legal provision, as many women still seek parental/spousal authorization for abortion. Therefore, despite laws in place, the musical chair of de-facto authorization for abortion continues.

Third-party authorization is a requirement imposed by law or policy, or in practice, that a party other than the woman, girl, or other pregnant people must authorize an abortion where other applicable legal requirements for lawful abortion have been met. The specifics of third-party consent laws vary from country to country and sometimes even within different regions or states of a country. Over the years, women’s reproductive autonomy was/has been heavily controlled by the third party, namely parents, spouses, and the judicial authority. The deep-rooted patriarchy in Nepal still challenges a woman’s right to reproduction despite laws prohibiting it. The Safe Motherhood and Reproductive Rights Act 2017 does not require third-party authorization for abortion, although the practices in Nepal direct otherwise. Given the situation that values, culture, and tradition drive Nepali society, the decision in these matters seems to be collective rather than individual.

From a legal perspective, there is a glimmer of hope that the woman’s body autonomy has been respected. Not only the Safe Motherhood and Reproductive Rights Act 2017, but various international legal instruments have also mandated women's autonomy. International instruments like CRC/Cedaw stress that the state should repeal laws and regulations that impede rural women’s access to SRH. The following has also been supported by the Supreme Court of the United States in the case of Planned Parenthood of Southeastern Pennsylvania v Casey, where the Court determined that spousal notification requirements are unconstitutional and placed an undue burden on women’s  liberties. While many believe that judicial authorization for abortion is paramount, Rwanda in 2019 removed judicial authorization requirements for abortion, thereby permitting women over the age of 18 to access abortion without judicial authorization.

States must respect the right of individuals to make independent decisions about their sexual and reproductive health, including whether to have an abortion. The Supreme Court of Nepal seemed very welcoming in respecting women's reproductive autonomy. The Court in the case of Achyut Kharel v Council of Ministers adjudged that a spousal consent requirement for abortion would violate women’s human rights under international law and Nepal’s constitution. Further, in regards to reproductive autonomy, the Supreme Court of Nepal, in the Lakxmi Dikta v Government of Nepal, stated that the right to decide on the number and spacing of one’s children is an essential component of sexual and reproductive rights and reproductive autonomy, and that restrictive abortion laws violate these rights. It also stated that information on the right to decide freely on the number and spacing of children must be included in basic education to fully empower women to exercise this right. 

While such landmark decisions have ensured women's reproductive autonomy, patriarchal lineage continues to impact women’s economic autonomy, often compelling them to seek consent of men even for minor decisions.

Financial resources and social support play a significant role in women’s ability to make informed reproductive choices, including decisions about pregnancy and abortion. Access to economic resources can be substantial, often combined with social support, for women’s ability to access abortion-related information and services. In Latin American countries, in places where abortion is illegal, access to financial resources and emotional support is essential for women to safely access medically supervised abortions in secret clinics. Access to safe and legal abortion services often requires financial resources. In some cases, individuals may choose abortion due to the inability to afford prenatal care, childbirth, or raising a child. Financial constraints can make abortion a more practical option for individuals who are not prepared to bear the costs associated with pregnancy and parenting. However, in Nepal, the situation is more complicated due to the heavy economic dependency of women on men.

This is the prime reason the abortion decision is influenced by the third party’s consent. There is a robust economic dependency of women towards men in rural settings and the decision can barely be taken against a man’s will. Economic disparities and poverty can significantly impact women's access to safe abortion services, particularly for those from low-income backgrounds. Financial constraints, including costs associated with transportation, medical fees, and post-abortion care, can pose significant barriers to obtaining essential reproductive healthcare. Additionally, ensuring access to safe abortion services for women under the age of 18 presents a unique set of challenges that require careful consideration of their best interests. While the SMRH Act may not explicitly require parental consent for minors seeking a safe abortion, it is essential to ensure a balanced approach that prioritizes the well-being of young women in these situations.

Gender inequality often intersects with socioeconomic conditions, making it daring for women to exercise their reproductive rights, including access to safe abortion services. In patriarchal societies like Nepal, many decisions run on the consensus of the male members of the family, and thus females, especially young girls, have limited decision-making power, making abortion decisions on coercion or pressure. Nevertheless, with a focus on policy-level work and reduced economic dependency on men, alongside the protection of women's rights, the de facto third-party authorization for abortion in Nepal comes to an end, validating the provision of de jure prohibition on third-party authorization for abortion.