The legal rights of the fetus: Nepali perspective

Introduction

A crucial question with significant legal, ethical, and medical implications arises when discussing pregnant women, violence against women, and fetal death situations: What does legal protection of a fetus look like in Nepal based on the domestic law and international conventions? This issue is quite complex. This article aims to investigate the legal protections and rights afforded to fetuses under existing laws in Nepal. In addition, this article aims to provide a comparative view with that of other countries.

Global perspective on fetal rights

Fetal personhood and limited rights have become an ideal surrogate battlefield for the broader question of the fetus's legal and moral status to be worked out in the raging global abortion wars. Many countries continue to wrestle with when and if to grant a fetus legal personhood and constitutional rights. The issue presents a complex thicket of ethical considerations. The Centre for Reproductive Rights reports that abortion is legal in only 61% of countries to preserve the life of the mother. ¹ Some nations, such as Ireland and Argentina, have recently liberalized abortion laws by referendum and court rulings. Meanwhile, five countries ban abortion entirely, even to save the woman's life. ¹

More U.S. states have been acknowledging fetal rights that are not dependent on being born alive: allowing for wrongful death actions for fetuses that have died in utero and criminalizing the killing of a fetus with laws similar to those that apply to a person. ² This change in basic assumptions about the fetus's identification as a separate individual from the mother could result in a dichotomy of interests with the latter's benefit at stake. ² Some women have been living on the other side of a double-edged sword, where the scope of fetus's rights increases at the expense of the rights of pregnant women. Thus, women are being sued by their own children for actions during pregnancy, removed from custody of their newborns based on their prenatal conduct, and forced to undergo a court-ordered pregnancy termination. ² This type of personhood extensions regarding a fetus and individual rights are the biggest threats to women's fundamental rights and infringe on their constitutional liberty and bodily autonomy. ² Consequently, passing fetal rights laws that defy women's authority magnifies the already existing primary disadvantage of women on the basis of their child-bearing ability. ² Such laws must be closely scrutinized under the Equal Protection Clause to ensure that they do not bolster culture-enforced sex-role restrictions or the subjugation of women. ² In Zurawski v. State of Texas filed in 2023 at Texas Supreme Court, 20 Texan women were denied abortion despite dangerous pregnancy complications, and on May 31, 2024 the court denied to clarify and rejected claims brought by the plaintiffs. ³

Dutch law provides two different strategies for protecting unborn and future children. ⁴ The first strategy, outlined by Lisette ten Haaf, ⁴ promotes granting legal personality to viable fetuses under the concept of “the unborn child's legal personality.” However, granting such a personality confronts several problems. The distinction between viable and nonviable fetuses is condemned as unjustified. ⁴ Moreover, no justification is provided for the value assigned to viability. ⁴ The article suggests this expansion of legal personality does not logically follow existing legal frameworks; rather, it is based on implicit assumptions. ⁴

The second strategy is that the Dutch law provides that a future child can only be regarded as a “subject of interest” and not considered as having a full legal persona. ⁴ This serves to protect the interests of potential future children without bestowing legal personality. ⁴ This strategy is more flexible and does not conflict with maternal rights. ⁴ However, this strategy also raises a critical question on the “interest” of the future child and on the “continuum of interests from potential to actual future persons.” ⁴ First, it is hard to attribute the future child with disinterest, especially considering that the act of harm prevention may prevent their existence. ⁴ Second, the article implies that future children do not fall into neat categories of potential or actual people. ⁴ Therefore, if the decision to uphold abortion laws holds on their future perceived interests, it creates a problematic interest loop. ⁴

Most countries around the world have policies against abortions triggered by pre-birth sex preference due to other philosophical and legal reasons.^5,6 However, how they are enforced differs. For instance, in Canada, there are no specific laws against sex-selective abortion. ⁷ It might be ethically wrong since it may perpetuate gender inequities. In other countries, enforced policies that limit women's access to prenatal or genetic care and consultation to avert sex-selective abortion may be in place. ⁶ Similarly, the Helms Amendment and the Global Gag Rule, U.S. policies that restrict funding for abortion-related services, have also deterred the integration of abortion services into comprehensive reproductive health services in Nepal. ⁸ Its lack of integration makes it difficult to access by isolating abortion from other reproductive health services. ⁸ More generally, it shows the difficulty in the design of an ideal policy that can facilitate the need to ensure maternal health while discouraging discrimination on the basis of the sex of the unborn child.

Abortion law in Nepal

Abortion in the broadest sense is the termination of pregnancy. The legality of abortion and the period of gestation until which it is permitted is in accordance with the law of the country. It differs from delivery in the sense that abortion primarily focuses on the life of the mother disregarding the life of the fetus, whereas in delivery both the life of the mother and fetus are primary concerns. In the majority of the legislatures across the world where abortion is legal, there are four main grounds that allow abortion: therapeutic (when the life of the mother is in danger due to ongoing pregnancy, be it physical or mental health); eugenic (the fetus has a severe deformity or would not survive); humanitarian (when the pregnancy is a result of sexual crime and social (when the pregnancy is a result of contraceptive failure).

Initial 1970s efforts to liberalize Nepal's abortion law aimed primarily to use it as a fertility control means. ⁵ This background provides historical context for the origins of the reform movement. ⁵ The Safe Motherhood movement of the 1990s, championed by the Ministry of Health, provided a new rationale: reducing maternal morbidity and mortality from unsafe abortions. ⁵ It involved the compilation of evidence, the raising of awareness, and the preparation of a policy framework that identified the liberalization of the abortion law as a key step toward safe motherhood. ⁵

Studies on the devastating impact of unsafe abortion in Nepal in the 1980s and 1990s led to abortion reform. ⁵ Both hospital-based inquiries in urban and rural locations revealed significant maternal morbidity and mortality. ⁵ Women's rights groups and nongovernmental organizations were the main advocacy groups, including the mass media. Thanks to the transition to the democratic regime, people also had more opportunities to take part in the process. The change resulted in South Asia's most liberal abortion law. ⁵

In Muluki Ain, the official legislature of Nepal, the abortion law is kept under the section of homicide. According to the abortion law, pregnancy can be terminated before 12 weeks of gestation.^9,10 Furthermore, abortion is legal until 18 weeks from conception when the pregnancy is a result of sexual crime or when fetal deformities are concerned.^9,10 Additionally, abortion may be legal for over 18 weeks when the mother's life is at risk due to the pregnancy. ¹⁰ However, not legal by the above law is the determination of the sex of the fetus and the selective sex abortions. Any person conducting illegal prenatal sex testing will be imprisoned for a term ranging from 3 to 6 months. ⁵ Simultaneously, if such an individual resorts to abortion following such a test, the person will serve a 1-year sentence in addition to the previous conviction. ¹⁰

The implementation and scale-up of safe abortion in Nepal have been largely successful following the liberalization of the 2002 legal reform. ¹¹ Several deliberate focuses in policy, health system capacity, equipment/supplies and information dissemination were significant. ¹¹ Existing post-abortion care services that had familiarized providers with manual vacuum aspiration (MVA) contributed to the success. ¹¹ Strong leadership at the ministerial level from the government to coordinate contributions from both the public and private stakeholders including nongovernmental organizations was pivotal. ¹¹ The adoption of medical abortion and decentralization to midlevel providers such as staff nurses and auxiliary nurse midwives was also significant. ¹¹ Furthermore, integration of abortion care into the existing Safe Motherhood program and the broader health system facilitated scaling up. ¹¹ Specific training strategies included a “Training of Trainers,” cascade model, sequential rollout prioritizing MVA then incorporating other methods, and involving nurses/midwives alongside physicians as providers. Monitoring was strengthened by integrating abortion data into the National Health Management Information System (HMIS) and tracking key indicators.

Nepal achieved first trimester abortion services by training health service providers and filling facility gaps. ⁷ While there was progress, the slowdown was due to the reinforcement of facility criteria that allowed facility provision in the second trimester beyond the standard requirements. ⁸ In 2014, there were only 22 hospitals in the country that could provide abortion at 12 weeks and beyond. ⁸ Furthermore, several Nepalese women who sought abortions were denied services that met the legal gestational age limit. One study found that denial rates were high among women over 10 weeks of gestation compared to under 10 weeks. ¹² Alarmingly, more than half of those denied were actually eligible under Nepal's abortion law. ¹² The factors causing denial included the provider's inaccessibility and the miscalculation of gestational age. Women who were eligible for but denied abortion under the law had mental health issues, physical health problems, and fetal anomalies.^9,12 The main results of these denials are pushing women, particularly young, less educated, and poor, to search for illegal and unsafe subsequent attempts outside of medical facilities. ¹² This not only jeopardizes women's health, but also undermines the purpose of its abortion policy: saving lives. ¹²

Safe Motherhood and Reproductive Health Rights Act was passed and implemented in 2018 to vow the constitutional reproductive rights of women. ¹³ This act is made more liberal and contradicts with the abortion law of the national penal code (Muluki Ain) and overrides the 18 weeks landmark to replace it with 28 weeks of gestation. ¹³ Pertaining to this act abortion is permitted up to 28 weeks if it endangers the life of the woman or her physical health or mental health; in cases where pregnancy is a result of rape or incest; if a pregnant woman is infected with human immunodeficiency virus (HIV) or any similar incurable disease; in cases where the fetus is nonviable or unlikely to survive, or deformed due to any genetic disorder, fetal impairment, or any cause. ¹³

Medical abortion represents more than half of Nepal's abortions, but rural women face stock shortages and the inaccessibility of service providers. ⁸ Community pharmacists could offer access if regulated and trained but acceptance is low. ⁸ Moreover, though post-abortion contraception is an opportunity underused, discontinuation is frequent despite efforts to boost use. ⁸ Poor use of long-acting reversible contraceptives and lack of comprehensive counseling have contributed to higher repeat abortion levels.^8,9 Thus, it continues to be a high-priority area. ⁸

Case of Lakshmi Dhikta v. Government of Nepal

The landmark Lakshmi Dhikta v. Government of Nepal case addressed abortion rights and access in Nepal. ¹⁴ Since 2002 when abortion was partially decriminalized, barriers were still in place for the safe service process. In 2007, human rights lawyers initiated a public interest lawsuit on behalf of impoverished Lakshmi Dhikta, who sought to have an abortion but was denied it at a government hospital for the defendant's inability to pay mandated fees, despite having several children already. ¹⁴ In other words, the Supreme Court of Nepal claimed that the country was not fulfilling the constitutional part ensuring that abortion is easy and affordable for any disadvantaged woman like Lakshmi as mandated by the 2002 law. ¹⁴

In 2009, the court upheld that the provision of accessible, affordable abortion services is an imperative prerequisite for Nepali women in order to fully realize and exercise reproductive rights. ¹⁵ It constituted an obligation for the government to ensure such services so that no woman is prevented from having an abortion due to her financial circumstances. ¹⁵ Moreover, the court concluded that a fetus does not possess the same legal personhood as a living human at an early stage of the pregnancy. Therefore, its rights and interests do not override the interest of the pregnant woman. This position applies particularly to circumstances of forced continuation of the pregnancy or childbirth, which violates basic human rights.^14,15

This groundbreaking decision held the government accountable for ensuring practical abortion access. ¹⁴ It emphasized termination rights’ intrinsic link to women's equality, health and basic human rights. This progressive ruling paved the way for comprehensive abortion law/policy formulation and implementation efforts in Nepal. ¹⁴ Specifically, the Supreme Court ruled that abortion access falls under the reproductive health right guaranteed constitutionally. ¹⁵ Early pregnancy's fetal dependence on and lack of separation from the mother means its interest cannot override her abortion interest. ¹⁵ Government directives included maintaining confidentiality, removing arbitrary fees, and raising legal awareness. ¹⁴

From a medicolegal standpoint, Nepal's abortion laws aim to balance maternal health priorities with limited late-term fetal protections. The Supreme Court declared abortion under reproductive health rights guaranteed by the Nepali constitution. ¹⁵ Yet, third-trimester restrictions acknowledge overriding legal fetal interests. ¹⁰ Marginalized women present later, facing higher denial rates, ¹² affirming Lakshmi Dhikta's finding that they confront abortion barriers.

Crimes against pregnant women in Nepal

A study showed 23.4% prevalence of intimate partner violence during pregnancy in South Asia, Nepal being no exception. ¹⁶ When crimes against pregnant women lead to unintentional abortion, additional punishments are mandated under the National Penal Code in Nepal. However, the prison sentence depends on the gestational age of the fetus, varying from 1 to 5 years of additional punishment as the pregnancy advances. ¹⁰ The punishments aim to deter violence against pregnant women that could lead to fetal death as well.

The increasing access to ultrasound and second-trimester services has also raised concerns over the implications of sex-selective abortions. ⁸ While sex-selective abortion is illegal, the law is rarely enforced effectively. ⁸ Efforts to reduce sex-selection need to be balanced with ensuring access to safe abortion services for all women. ⁸

Fetal personhood laws are subject to criticism. They might affect different spheres, including in-vitro fertilization (IVF) procedures, access to contraception and the rights and autonomy of pregnant women. Additionally, the establishment of fetal personhood could enable the criminal prosecution of people who self-induce abortions, which potentially could provoke issues for those who miscarry.

The legal and ethical implications of prenatal harm caused by third party merits thoughtful consideration. ¹⁷ There are convincing moral arguments that harm caused to a future child in-utero should entitle the child to legal compensation once born alive. ¹⁷ The English law does not currently allow a fetus or its representative to initiate legal proceedings for injuries sustained before birth. This raises complex questions about whether and how the law should recognize the interests of the future child when redress is sought for prenatal injuries. ¹⁶ Experts have proposed that one way to implement such “limited legal rights” for the fetus is to guarantee “liability in torts” should the fetus have been wrongfully harmed. ¹⁷ Furthermore, it seems to open up a Pandora's box by potentially granting expansive rights to a fetus, which could violate a woman's right to choose abortion at any stage of pregnancy. ¹⁷ As a result, in any cases related to a child's right to do damage accommodations, finding a viable balance between the future child's well-being as the victims and preserving the pregnant woman's fundamental right to make decision about the pregnancy is critically important. ¹⁷ The debates and contemplations assist in establishing the most recommendable ethical and legal standards by weighing probable cases. ¹⁷ Therefore, both the medical and legal fields hold a genuine commitment to do everything feasible to help women and all parties involved, to make the right decisions looking forward to keeping out of harm the life and welfare of both the potential mother and the potential child, while also considering rights and responsibilities of potential fathers where applicable. ¹⁷

Are fetuses legal persons?

Many debates around fetal rights center on the legal and moral status of the fetus. ¹⁸ Anti-abortion advocates often argue that both life and personhood begin at conception. ¹⁹ The case of a dentist of Indian origin living in Ireland sparked the media in 2012 when she was denied abortion as per the then existing law that if fetal heartbeat was present abortion was prohibited.^19,20 Interpretations of fetal rights and personhood status have varied across national jurisdictions.^21,22 Instead, they hold “conditional legal personhood” contingent on live birth.^5,21 For example, in property law, a fetus may be entitled to inheritance upon birth but does not legally own property in utero. ¹⁰ European human rights courts have declined to extend the right to life protections to fetuses.^5,22 Meanwhile, the Italian Constitutional Court repudiated a petition challenging abortion legislation that the law damaged equality between spouses and instead clarified that the law conserved women's autonomy. ²² However, it should not be forgotten that Italian Supreme Court of Cassation in the judgement number 27539 held the pregnant woman liable of culpable homicide for aborting the fetus and made a verdict that the fetus in the womb is actually a human being. ²³ The Supreme Court of Canada eliminated restrictions barring abortion and held that the autonomous conception by a woman of her constitutional rights to her life, liberty, and security relied on a woman's access to abortion. ²² In reality, it seemed to require an extreme renaissance of the issue of abortion, a transformation that was a result of placing it under the framework of reproductive rights more generally by Nepal's constitution in the Lakshmi Dhikta case. ²² Although Nepal and Canada have different constitutional frameworks, the comparable resolutions featured above suggest several congruities in the Supreme Court's determination on the interpretation of reproductive freedom as an ingredient of gender equality, as well as the realization of women's legal status as independent individuals. ²² As the court emphasizes, women must have a choice in making decisions concerning their reproduction, as it is the foundation for exercising fundamental rights. ²²

These challenges show the need to support abortion services in rural areas. ¹¹ The issue of an inadequate improvement in health facilities, which serve low-income people, should also be addressed, as evidenced by Lakshmi Dhikta, v. Nepal case. ¹¹ Addressing inadequacies in abortion care requires a multifaceted approach. A key measure involves incorporating indicators, for monitoring abortion services into the Health Management Information System (HMIS). ¹¹ This would allow for tracking data points like the number of women accessing abortion services, the percentage receiving abortion care, rates of complications and uptake of post-abortion contraception. ¹¹ Systematically measuring and evaluating these elements can inform efforts to enhance access and quality of abortion services, particularly among underserved populations who face heightened barriers.

The case of Laxmi Dhikta highlights the fact that poverty is also one of the reasons women seek abortion. Having five children already, her sixth pregnancy would be financially and physically strenuous for her poor family. Yet, unable to pay for the abortion services she was denied abortion she desperately needed. Pregnant while being unmarried, widowed or separated is a social stigma in Nepal. ²⁴ Women do not seek abortion due to the fear of being judged. Socially and morally, the patriarchal Nepali society prohibits women to have sexual intercourse before marriage while men are exonerated. ²⁴ A 16-year-old unmarried woman was sexually assaulted by an elderly man living in the same neighborhood, as a consequence of which she got pregnant. ²⁴ The family due to stigma did not disclose the pregnancy, neither reported the sexual offence. ²⁴ Once the woman delivered at term, she tried to get rid of the newborn strangling her. ²⁴ Had she or her family known her legal rights they would have sought abortion, however, the victim of sexual offence was charged with infanticide. ²⁴ In Nepal, if a woman is found carrying a condom, she will be branded as a loose character; or if she asked her partner to use one, she will be blamed for infidelity. It is the female who must use the contraception and failure to use one, she has to bear the consequences. ²⁵ Both the Penal Code as well as Safe Motherhood and Reproductive Health Rights Act allow abortions only if the pregnant woman consents. However, it has to be noted that in the patriarchal Nepalese society, women are not allowed to make autonomous decisions. Although the constitution guarantees sexual and reproductive health rights to women, it is disheartening to find that only 1 out of 4 women could make autonomous decisions when it comes to their sexual and reproductive health. ¹⁴ This lack of autonomy of women regarding their sexual and reproductive rights in the patriarchal Nepali society may affect their views regarding fetal rights.

Conclusions

Nepal has laws protecting the reproductive rights of women seeking abortion; however, several barriers remain eliminating access to care, especially for the most marginalized. The laws created a legal balance of ensuring maternal health and autonomy while relying minimally on protection of late-term fetus. As the global debate continues between fetal rights and fetal personhood on the one hand, women's freedom, and human rights on the other; developing multifaceted legal framework to address maternal health and autonomy, interests of fetuses, injuries as well as sex-selective abortions is imperative. Measures can enlighten on the law to ensure it is easily enforceable, accessible, and affordable to provide the abortion care. The program can extend its reach to women in rural areas by integrating abortion care into the existing health system, implementing targeted interventions, and training more personnel to deliver those services effictively. There is also a necessity to install peers matched measures in the health data system to track the availability and acceptability of abortion to populations.