Abortion(Explore out when abortion is Legal and when it is Illegal).Is it accessible to everyone in the Country wether it is misused)?
Abortion-Its Legality and Illegality as well as Accessibility or Misused
Submitted ByProf.Madhav Prasad Acharya &
Anju MandalProf.Ganesh Bhattrai
L.L.B 2nd YearKathmandu School Of law
TABLE OF CONTENTS
2.1 Introduction of Abortion
2.2Condition when It is Legal
2.3 Condition when it is Illegal
2.4 The accessibility of Abortion Facility in The country
2.5 About The misusing of The abortion services
2.6 Relating Abortion cases
Nepal is one of the few countries in the world where abortion is illegal.Unsafe illegal abortion is the major cause of Maternal death in Nepal.The medical complication of improperly performed illegal abortion are now reaching epidemis proportions in many parts of the world ,and representing a leading cause of the death of women among childbearing age. In Nepal about 4000 women die each year from illegal abortions.Abortion is not only illegal in our country- it also comes under the definition of” Homicide” so that women go to jail in case abortion is proved.The first government abortion services officially began in March 2004 at the Maternity Hospital in Kathmandu.
Nepal Government began providing comprehensive abortion care(CAC)services from March 2004 after 18 months of Legalization of abortion,when the government issued safe abortionService procedure in 2004.By febraury 2008,the government had licensed 188 centres to provide CAC services.As of july 2009,a total of 98 government hospitals and 108 non-government health institution and private facilities have been accredited for providing CAC services.These centres have offered safe abortions services to more than 229,000women.
To study about the Abortion,its Legality,Illlegality as well as Accebility and Misuse of this facility.
To fulfil Second Term paper examination
This term paper will only Deal the introduction,legal as well as illegal grounds and Accessibility and misuse of Abrtion.
This term paper is based on the
Primary:FPAN(Family planning Association of Nepal)
Secondary:Researcher has researched in KSL library and Surfed Websites.
2.1Introduction of Abortion
An Abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a Foetus/embryo,esulting in or caused by its death.An abortion can occur spontaneously due to complications during pregnancy or can be induced ,in humans and other species.An abortion is a procedure to end a pregnancy.It uses medicine or surgery to remove the embryo or foetus and placenta from the uterus.The procedure is done by a licensed physician or somebody acting under the supervision of a licensed Physician .In simple meaning abortion can be defined as “The deliberate ending of a pregnancy “which can be either spontaneous abortion(Miscarriage) or induced abortion. Accoring to WHO(2006),abortion is the Termination of a pregnancy before the foetus has attained the viability i.e become capable of independent extra-uterine life. Abortion may be defined as an act,which causes the body in the womb to die or prevent it to have natural birth.
Muluki-Ain 11th amendment has provided the provisions as to abortion department from traditional and rigorous rule prevailing up to now.It has given wide discretionary power to the women and to te doctors and as well as in the matters of Abortion.
2.2 Abortion when it is Legalized
Abortion is legalized on certain grounds.According to the Country code of 2058,(Reproductive Health Rights) and Right to Selfdetermination explicits that women can Procure abortion on the following three grounds.The privileges granted by the 11th amendment of Muluki ain where has been Legalized as Follows:-
1)Any women can procure abortion within 12 weeks of Gestation period.
2) Any women can procure abortion within 18 weeks of Gestation period if the Conception is the result of rape or incestuous intercourse.
3) A doctor can procure abortion if he is of the opinion that it is necessary in orer to protect the physical or mental health of the women or or if he is of such opinion that if abortion is not procured the baby is likely to be born invalid or deformed.
2.3 Abortion when it is Illegal
Abortion, where it is effected in any other situation prohibited by the law is penalized as follows:-
1) Procuring Abortion within 12 weeks of gestation period is Punishable by 1 year of Imprisonment.
2) Procuring abortion within 25 weeks of gestation period is punishable by 3 years of Imprisonment.
3) Procuring abortion above 25 weeks of gestation period is punishable by 5 years of Imprisonment.
Additional Punishment in Special Cases
If abortion is procured by influencing the women under inducement ,threat or promise,the person is liable from 3-6 months of Imprisonment .If he has done the same act after identifying the sex of the baby,he is liable to Additional 1 years of imprisonment.
2.4 General procedures of Abortion specified by Homicide of Muluki Ain
- Any person who commits abortion or causes abortion by doing any act with intention or knowingly or with sufficient reasons to believe that such an act is likely to cause an abortion shall be punished as follows:-
-Imprisonment for a term of one year in case the foetus is upto twelve weeks.
-Imprisonment for a term of three years in case the foetus is upto Five weeks.
-Imprisnment for a term of five years in case the foetus is above twenty five weeks.
28A No shall cause abortion upon causing coercion,threat,lure or offer(pralovan) to a pregnant women.In case where a person cause abortion in that manner,the person shall be liable to the following punishment:
Imprisonment for a term of one year in case the fetus is up to Twelve weeks.
Imprisonment for a term of one year in case the fetus is up to Twenty five weeks.
Imprisonment for a term of five years in case the fetus is above than twenty five weeks.
28B Not withstanding anything contained in Number 28 of this Chapter if an abortion, is carried out by qualified and registered health worker upon fulfilling the procedures as prescribed by the Government of Nepal ,it shall not be deemed to be the offence of abortion ,in the following circumstances:
If the abortion of a foetus is up to eighteen weeks caused by rape or incest is carried out with the consent of the pregnant woman.
If the abortion of a foetus is Up to Eighteen weeks caused by rape or incest is carried out with the consent of the pregnant woman.
If the abortion is carried out with the consent of the pregnant woman and on the advice of an expert pursuant to the prevailing law that if abortion is not carried out, the life of such a woman may be in danger or the physical or mental health may be deteriorated or a disabled child may be born.
28(C)No one shall commit or cause to be commited an act to identify (determine) the gender of the foetus for the purpose of commiting the offence of abortion.A person who commits the offence shall be liable for the punishment of Imprisonment for a term ranging from three months to Six months.
28(D)A person who commits,or causes to be commited,abortion upon identyfing the gender of the foetus as reffered to in Number 28(C),the person shall be liable to the punishment of imprisonment for a term ranging from Six months to Two years.
29 If a person commits an act to a pregnant woman with some anger or malice(Rishbi) and such an act results in abortion,the person shall be liable to punishment despite that such act has not been done with intention to cause Abortion.
2.6 The accessibility of Abortion facility in our Country
Abortion facilities are available in all 75 districts and now also by Nursing staffs and Private organizations Like Marie stops International(MSI) ,Family planning Association of Nepal(FPAN)etc.From july 2009 to june 2010,88,938 women received safe abortion service from 331 listed sites in 75 districts(Source HMIS, DoHs).Likewise the Marie Stops international (MSI) registered as a charity in the United Kingdom in 1973,is a global Sexual and reproductive Heath(SRH) service provider. I works in partnership with local NGOs throughout the world providing technical and managerial support to local partners.At present MSI is working in 41 countries. By2066/67 (2009/10), SPN has served over 1.7 million clients and performed over 350 thousandsterilizations via static centres and camps.Over the last 16 years, MSI Nepal and SPN together have played an instrumental role in helping theGovernment in improving reproductive and maternal health by providing significant contribution inincreasing access to FP and safe abortion services. Today, it has justified being one of the leading nongovernmental organizations in providing family planning and safe abortion services in the country.
2.7 About the Misusing of Abortion Facility
Historically women have performed abortions in villages in Nepal to regulate their Fertility.Many villages women know some kind of traditional medicine to abort the foetus in the first 2-3 months of Pregnancy.Most of the time,pregnancies are terminated in aa very brutual manner like a stick with Mud or Cowdung and even sometimes poisonous grass is inserted inside the vagina to induce the contaraction of uterus and cause the foetus to be expelled.According to The newspaper “The Kathmanu post”:2068/10/20, The legalization of abortion in 2002 could not do wonders as the practice of aborting female foetus is increasing in the government and private hospitals throughout the country . According to the data at the Department of Health services(DoHS),51,415 abortions were carried out in 2007/8,83,978 in 20008/9 and 88,938 in 2009/10.More than 25 percent of the abortions are procured by Teenagers girls aged 15-19,it is said that unwanted pregnancies result from marital affair . Conception before Marriage(Duku Kumari shrestha VS HMG nkp 2038 pg 9). The cases drawm from newspaper”The Kathmandu Post” that Shova Tamang,19,of Balaju probably did not forced anything ominous when she decided to have an Abortion.But unfortunately the misreading of her bodily condition by Medical staffs of Miteri Clinic,Balaju claimed her life.’About three month ago when the fatal mistake of doctors hadn’t died down,another case f abortion failure led to the death of Sita Chhantyal ,26,again in Balaju.Her death was also due to the Negligence of B B Health care,Balaju. This is the misuse of abortion because of the negligence of Medicos and Having noo skilled manpower and resources in providing abortion services.
2.8 Relating Abortion cases
Cases can be instituted at any time if the offender has confessed the guilt.In another cases,abortion cases must go to the court within 3 months of the incidence.
1)HMG vs Draupadi Kshetry alias Deurupa NKP p 284
In this caseeven though the court is not fully convinced that at the time of birth the baby was alive.But the courts finds that attempt to abortion was in progress in the past.On such findings the cort doesn’t feel to pertinent to acquit the accused and passes the sentence convicting her for the charge of murder and inflicts 5 years of Imprisonment.
2) Goma Devi pyakurel vs HMG nkp 2040.In this case the Supreme Court held that any baby who is born after completion of gestation period may be presumed to have Born Dead.
3)Krishna lal yadav vs HMG 2044,P 671. Abortion by forcing the woman to take power medicine)
Conclusion:-We should make accessible better and safe contraceptives services for all people to reduce the need for abortion.To ensure complete reproductive health,policies and programmes must be framed within and implemented as part of broader women’s development strategies that will redress the equal distribution of economic resources among and between men and women.
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