Nepali Women's Interim Protection

The opportunities to place reproductive rights squarely into a country's constitution are rare -- and when they come up, they should be exploited to their full advantage.

Constitutional guarantees provide women judicial protection, so that when women's reproductive rights are violated, whether through preventable maternal deaths, being denied access to reproductive health care or discriminatory treatment when seeking reproductive health services, women have standing under domestic law to challenge the violation. Reproductive rights protections in constitutions also influence political decision-making and legislative priorities, in turn leading to budgetary allocations and practical protections for women's reproductive rights.

In January 2007, the Government of Nepal adopted the Interim Constitution which incorporates health as a fundamental right of the people, recognizing that "every woman shall have the right to reproductive health and other reproductive matters" as a fundamental right. This recognition marked the first time that a government in the region had explicitly recognized women's reproductive rights as fundamental rights in a national constitution.

The reforms reflected a culmination of efforts of a range of advocacy groups, including the Nepal-based Forum for Women, Law, and Development and the Legal Aid and Consultancy Center, as well as the New York-based Center for Reproductive Rights (CRR). In fact, in a letter to the Interim Drafting Committee in July 2006, CRR suggested that Nepal emulate some of the most progressive aspects of the South African Constitution with regards to reproductive rights. (The South Africa Constitution guarantees the right of access to health care, explicitly including reproductive health care and protections against direct and indirect discrimination on the basis of a range of grounds, including sex, gender, pregnancy or sexual orientation.) CRR also highlighted to the Drafting Committee Nepal's maternal mortality rate, one of the highest in the world at 830 per 100,000 births in 2005. In their view, the constitutional clause needed to recognize the right to make decisions about reproduction, the right of access to health care services as fundamental rights, and prohibit direct and indirect discrimination on grounds that include sex, gender, pregnancy, marital status, age and culture.

While the goal of explicitly protecting reproductive rights in the Interim Constitution has been achieved, the responsibility for the new Constitution is in the hands of a new Constituent Assembly, a 601-member body elected in April 2008, more than one-third of whom are women. The redrafting should be finalized by May 2010. In the meantime, advocates continue to push to maintain the rights-protective provisions that exist in the Interim version. We can only hope that Nepal does not see a repetition of the Constitutional reform process in Timor-Leste. In August 2001, prior to the constituent elections, a collaboration of women's groups developed a charter of women's rights, which stated that, "[t]he State must provide reproductive health care for women." While the new Constitution included some aspects of the charter, the reproductive rights language was not included. Instead, the Constitution only guaranteed the right to health in more general terms.

The fact that reproductive rights as fundamental rights have been included in the Interim Constitution, and may be kept in the final draft, is only a starting point. Criticism has been directed at the Interim Constitution's provisions for their lack of substance. A report released by the Center for Human Rights and Global Justice (CHRGJ) in 2008, on Dalit rights in Nepal, recommends that the new Constitution include the reproductive rights guarantees found in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Specifically, CHRGJ has pushed for the Constitutional guarantees to be elaborated upon and include: the right to access a full range of high quality and affordable health care, including sexual and reproductive services; equitable distribution of all health facilities, goods and services (including access to "essential medicines"); the right to control fertility; and the right to obtain family planning information, counseling, and services without discrimination.

The need for ongoing lobbying of the new Constituent Assembly members to protect women's health and rights in the new constitution is reflected in the work of WOREC Nepal and Women's Reproductive Rights Program/CAED. The group jointly organized a four day Review and Orientation Workshop, followed by a National Consultation, in May 2008 at Kharipati, Bhaktapur, timed to coincide with International Women's Health Rights Day on the 28th of May. The occasion was used to advocate for more specific guarantees of a range of reproductive rights protections, including maternity leave, prevention of anemia amongst pregnant women, improved financial and physical resources, improved access to family planning programs amongst the poor and people of oppressed or disadvantaged classes, as well as increased discussion of the reproductive rights of men.

The specific situation of Nepal's history of conflict and its impact on reproductive health was also discussed, including alarming maternal mortality rates, bereavement resulting from the death and disappearance of children, and sexual violence.

As political, judicial, administrative and other reforms are undertaken during any post-conflict period, it is important that social and economic reforms, such as reproductive rights and reproductive health, are not left off the table. Post-conflict constitution-making presents a fertile opportunity to advocate, guarantee and normalize reproductive rights.