Kathmandu
The government has proposed allowing girls under 18 who become pregnant through rape or incest to undergo abortion at any stage of pregnancy. The proposed provision seeks to remove the existing 28-week limit and allow abortion “at any stage” of pregnancy.
The provision has been proposed in a bill to amend the Safe Motherhood and Reproductive Health Rights Act, 2018. Health and Food Hygiene Minister Nisha Mehta registered the bill at the House of Representatives on September 21, seeking to change the existing provisions and definition related to safe abortion.
Experts have described the proposal to allow abortion at any stage without adequately considering technical and practical aspects as insensitive and inhumane. They argue that the provision could legalise the termination of pregnancies involving fetuses capable of surviving outside the womb. They say that if the bill is passed in its current form, it could allow the termination of pregnancies involving potentially viable babies.
Doctors say a fetus is fully developed by 26 weeks. Senior obstetrician and gynaecologist Dr Jageshwar Gautam said the proposal to allow abortion after 22 weeks was problematic from both ethical and practical perspectives. “A baby after 26 weeks can cry and move,” Gautam said. “After 22 weeks, it is not abortion but delivery. How can a doctor kill a living baby?”
According to the World Health Organization, a pregnancy before 22 weeks or involving a fetus weighing less than 500 grams is classified as an abortion. Experts say a baby born after that stage is considered premature. Gautam said he had treated and saved hundreds of babies born at 26 weeks and argued that a baby capable of being born alive at that stage should not be killed in the name of abortion.
“I have saved many babies born at 26 weeks. Allowing abortion at any stage directly means killing a baby,” Gautam said. “We cannot implement a law to kill a baby.” Dr Padam Raj Pant, president of the Nepal Society of Obstetricians and Gynaecologists, said the proposed provision was unacceptable.
“We completely reject abortion after 22 weeks. These days, babies born at 26 weeks are also surviving. Such a baby cannot be killed after birth,” Pant said. “Such a provision could encourage abortions, which would pose risks to women’s health.” Gynaecologists say the proposed provision could create various health risks as well as ethical dilemmas for healthcare workers.
“In cases of pregnancy resulting from rape or incest, family members sometimes pressure women to undergo abortion, saying they do not want to pursue a legal case and that the matter has already been settled,” Pant said. “Some babies are born breathing even after 22 weeks. In such cases, there is no question of killing a baby after birth. That is not abortion; it is delivery.”
Doctors say the risks associated with delivery increase as pregnancy progresses from 22 to 28 and 30 weeks. If normal delivery itself carries risks, inducing an abortion with medication could pose additional risks to the mother’s life, they said. Gynaecologists argue that abortion at any stage should be permitted when necessary to save the mother’s life in an emergency, but that such a provision should not apply under normal circumstances.
Gautam objected to the proposal to allow abortion at any stage, arguing that it could result in the killing of babies capable of surviving outside the womb. “If a woman comes at 28 weeks and asks a doctor to abort her baby, which doctor can kill it?” Gautam asked. “That would be like strangling the baby to death.” He said the right of a baby to survive should not be disregarded regardless of how the pregnancy occurred. “The baby does not know whether the pregnancy resulted from rape or consensual sex. The baby has a right to live,” he said.
Who will assume responsibility for a baby born alive?
Senior obstetrician and gynaecologist Dr Kirtipal Subedi said the proposed legal provision on abortion should be viewed from two different perspectives. He said the issue of allowing abortion at any stage for girls under 18 who become pregnant through rape or incest was highly sensitive and should not be decided hastily.
Some girls may be unable to disclose that they have been raped, while families may only discover the pregnancy at a late stage. If the pregnancy is detected only at 28 or 30 weeks, the existing time limit can create difficulties, he said. “In some cases, a girl may not be able to say that she was raped. By the time the pregnancy becomes visible, it may already be 28 or 30 weeks,” Subedi said.
In such cases, he said, not only the condition of the fetus but also the girl’s social and family circumstances could become complicated. He said lawmakers should also consider the possibility that a girl who becomes pregnant through rape could face rejection by her family or social exclusion. However, Subedi said another complication could arise if the pregnancy is detected only after 26 or 27 weeks.
Since a baby born after that stage may have a chance of survival, the law should also clearly address what happens to a baby born alive following an attempted abortion, he said. “If it is detected and an abortion is carried out after 26 or 27 weeks, the baby could survive,” Subedi said. “The family may refuse to take responsibility, and the perpetrator may be unknown or unavailable. The law should make it clear in advance whether the state or the family will assume responsibility after the baby is born.”
Dr Shree Prasad Adhikari, director of Paropakar Maternity and Women’s Hospital in Thapathali, also said that babies born at 28 or 30 weeks may survive and that the state should introduce clear legal provisions concerning their rights and future care. Gynaecologists said the law should clearly specify where a baby born alive would be placed, who would provide medical treatment, who would be responsible for care and education, and how parental, property and other legal rights would be ensured after the child reaches adulthood.
“Babies after 26 weeks can be born alive. Doctors cannot kill them. The state must establish in writing provisions concerning their right to live, education, parental rights, property rights and other rights,” Adhikari said. He said situations in which the mother’s life is at risk should not be treated under the same legal provision as pregnancies involving minors who have become pregnant through rape or incest.
According to Adhikari, the problems and responsibilities arising from these two situations are different and therefore require separate analysis. He said the proposed provision allowing abortion at any stage when the mother’s life is at risk was appropriate. However, he said the social, legal and health complications arising from allowing abortion at any stage for minors who become pregnant through rape or incest should be studied.
“There needs to be a major debate on what should be done in cases involving the rape of a minor after 28 weeks,” Adhikari said. “If the state does not clearly determine what responsibilities it will have in the future and how they will be managed, a hasty decision could create another complication.”
Dr Padam Raj Pant also agreed with the concerns raised by other experts. He said that if the proposed provision allows abortion at any stage, the law must clearly establish responsibility for the treatment, protection, care and civil rights of a baby born alive. “A family may be unable to take responsibility after a child is born following a rape-related pregnancy,” he said. “Who will be responsible for the child’s upbringing, citizenship and other rights? This issue must be addressed by law.”
The Safe Motherhood and Reproductive Health Rights Act, 2018, currently allows abortion up to 28 weeks in certain cases. The government is seeking to relax the provision by allowing abortion at any stage in specified circumstances. However, regulations under the Safe Motherhood and Reproductive Health Rights Act have still not been formulated eight years after the law was enacted, partly due to opposition from medical experts.
The Act states that a woman has the right to safe abortion up to 28 weeks, with her consent, if the pregnancy resulted from rape or incest. After the Act was passed, the Ministry of Health also held discussions with obstetricians and gynaecologists on the necessary directives and regulations.
However, doctors could not reach an agreement on the issue. They have been strongly calling for the time limit for abortion in pregnancies resulting from rape to be reduced to 22 weeks. Nepal first introduced a law on safe abortion in 2002. In general, the existing provision allows a pregnant woman to obtain a safe abortion, with her consent, up to 12 weeks of pregnancy.
