A piece very well written by Aditi Karki and published in Republica.
Patriarchal values and normative structure established thousands of years ago still persist in our society in varied garbs. As a consequence, social discrimination against women is omnipresent even in the 21st century.
This tragedy manifests in various forms such as domestic violence, increasing number of dowry deaths, rape cases, etc. Among them is sex-selective abortion. The abortion of female fetuses after sex determination has been emerging as a serious problem, especially in urban areas, leading to a skewed male to female ratio.
As per Conditional Sex Ratios (CSRs) calculated from 2007 to 2010, the CSR for second births where the first born was a girl was found to be 742 girls per 1,000 boys. This gap has increased in recent years according to various research data.
However, the problem does not end in imbalanced sex ratio. It reflects the greater discrimination against women in society. In fact it is a profound health problem, sapping women’s energy, compromising their physical health, and eroding their self-esteem. The unhealthy status of women in society reflects the unhealthy state of society in the first place.
Laws are considered the major tools to administer justice in a society, it is essential to analyze sex-preference abortion from a legal perspective. Sex selective abortion is a crime according to the country’s Civil Code (Muluki Ain 2020) where a person can be liable for imprisonment from six months to two years. Also, identifying the sex of the fetus for the purpose of abortion is punishable with three to six months of imprisonment. The provisions are affirmed in chapter 28 of Muluki Ain, which is about homicide.
The chapter clearly states that no one shall cause abortion through coercion, threat, or manipulation. A person who causes abortion in such manner shall be liable for a term ranging from one to five years of imprisonment. The punishment was increased in the Gender Equality Amendment Act in 2063. To seek legal justice against sex-selective abortion, abortion cases must go to court within three months of the incident. However, a case can be instituted in court at any time if the offender himself/herself has confessed the guilt.
Besides the judicial procedural approach, gender preference abortion also stands contradictory to legal principles and constitutional provisions ensured in Interim Constitution of Nepal, 2063. At the very first, sex-selective abortion is against the ‘Right to Equality’ which is guaranteed as a fundamental right of every citizen in the Interim Constitution.
Article 13 explicitly states that no person shall be denied the equal protection of laws. Fetus, or an unborn person, is recognized as a legal person by law, and therefore a female fetus has the equal right to protection. It is unequal and unlawful to endanger female fetuses just because a woman’s partner cannot provide her the Y chromosome.
It is often reported that women are forced to have sex-selective abortions because of societal and family pressures. This again violates the fundamental rights of women guaranteed in the constitution. Article 20 states that every woman shall have the right to reproductive health and other reproductive rights. Moreover, it is clearly mentioned in Article 20(3) that no physical, mental or other form of violence shall be inflicted on any woman, and such an act shall be punishable by law. Nevertheless, despite legal provisions and constitutional guarantees, very few cases are brought to court against sex-selective abortion.
Research suggests that culture plays a larger role than economic conditions in gender preference and sex-selective abortion, which applies to Nepali society as well. However, these cultural values are not established overnight. Instead, it has developed from ancient times. Hence such biased value systems were reflected in earlier legal codes as well.
Nyayabikashini (also known as Manav nyaya shastra) promulgated by Sthitiraj Mall (Jayasthiti Malla) in 1380 AD, which is also attested as the first legal document in the history of Nepal, has many gender biased regulations. It declares that one should not take pleasure in a wife who is barren, gives birth only to female children and is of ill-repute. If a man does so, he will not be guilty.
Likewise, it states that women should be protected by fathers while they are children, protected by husband while they are young, and by sons when they become widows. Women should be dependent on them as they are quite unfit to be independent. Further, making their lives more dependent on men, Nyayabikashini ensured that transactions undertaken by women would be invalid unless approved by her husband, son, or by the King.
Such unjust legal provisions and biased societal beliefs in the past have given legitimacy to today’s evil practices like sex-selective abortion. The increasingly skewed ratio of men to women not only disrupts the natural balance of society, but contributes to further eroding women’s socio-legal status.
However, society changes and progresses with the realization of what is just and what is not. We have progressive constitutional guarantees in Interim Constitution. Article 34 of the Directive Principles of the State assures that the chief objective of the State shall be the protection of lives, property, equality and liberty of the people.
Thus, the State should come forward with new programs and policies to protect the reproductive liberty of women and to ensure equal birth-right of female fetus, realizing that sex-selective abortion is one of many social conditions that has adverse effects on women’s education, employment, health, reproductive choices, and economic and sexual self-determination.