SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Further, any pregnant woman may voluntarily obtain an abortion up to 12 weeks of
pregnancy and abortion is available up to 18 weeks in cases of rape or incest. Prior to the
changes, abortion was not allowed even in cases of rape and incest. The amendment also
prohibits amniocentesis tests undertaken to perform an abortion on the basis of sex and
prescribes imprisonment for persons conducting such tests or performing abortions based on
such tests. Prior law criminalized causing the termination of pregnancy. 676
In 2004 a case was filed in the Supreme Court of Nepal, which sought to curb the right of
women to seek safe abortion on the ground that the law did not require a husband’s consent
prior to aborting the foetus. However, the Supreme Court dismissed the case, reasoning that if
spousal consent were required for exercising the right to abort it would negate that right. 677
6.2 Contraception
Access to contraception in the research countries is predicated mostly on their family
planning/welfare programmes and provision of health services. [See for example Bangladesh
Population Policy.] In some of the countries issues related to contraceptive access have been
dealt with by law and the courts.
In 1992, Indonesia passed the Law Concerning Population Development and the
Development of Happy and Prosperous Families. 678 The Law was enacted for the
comprehensive development of the Indonesian people and Indonesian society as a whole and
deals with all dimensions of population including size, quality, mobility, harmony with the
environment, etc. The Law details the rights of a person as an individual, as a member of
society, as a citizen and as part of a collectivity. Article 7 states that, “every person as a
member of a family has the right to build a happy and prosperous family by having an ideal
number of children, or by adopting children, or by providing education to children on living
as a family as well as other rights in order to create a happy and prosperous family.”
This Law deals with contraceptive access only in the context of a married couple. Moreover,
the Law defines family as “the smallest unit of society consisting of husband and wife, or
husband and wife and their children, or a father and his children, or a mother and her
children” and family planning as “the efforts to increase society's concern and participation
through delayed marriage, birth control, fostering family resilience, improving family welfare
to create small, happy and prosperous families.” The Law clearly articulates the intent of the
government to control the size of the population.
Article 16 of the Law details the provisions in relation to family planning and directs the
government to issue policies to that are connected to determination of the ideal number of
children, the spacing of childbirth, the ideal marriage age, and the ideal age for delivery.
676 See Upreti, Melissa, “From Base to Summit: Abortion Law Reform in Nepal,” WiA, No.1, 2008, Isis
International, available at http://www.isiswomen.org/downloads/wia/wia-2008-
1/1wia08_04TalkPoints_Melissa.pdf
677
Achyut Prasad Kharel v Government of Nepal. The authors did not have access to the original text or an
English translation of this judgment and relied on an unpublished study and analysis on sexuality and rights
undertaken by the Forum for Women, Law & Development, which was made available to the authors.
678 Number 10 of 1992, Law of the Republic of Indonesia. However the Indonesian Penal Code appears to also
criminalise the provision of certain contraceptive treatments. Thus under Article 299, a person who with
deliberate intent gives treatment to a woman giving her to understand or raising the expectation that thereby the
pregnancy may be curbed is punishable. The punishment is higher for professionals (physicians, nurses, etc.)
and conviction may result in the person being released from the profession.
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