Toward Transformative Equality in Nepal: The Lakshmi Dhikta Decision

Melissa Upreti,  “Toward Transformative Equality in Nepal: The Lakshmi Dhikta Decision,” chapter 13 in Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp. 279-300, 435n-440n.  Ahora disponible en español.

In 2009, the Supreme Court of Nepal issued a monumental decision in the case of Lakshmi Dhikta v. Nepal recognizing abortion as a constitutionally protected fundamental right.   In this chapter, Melissa Upreti addresses the shifting frames of reference through which a constitutional court analyzes abortion. She examines the decision of the Supreme Court of Nepal in the Lakshmi Dhikta case, which centered on a poor woman in rural Nepal who was denied access to a legal abortion due to her inability to pay for the service.  However, it was filed as a public interest case so it concerns the right of all women in Nepal to affordable abortion services.  The Court’s decision reinforced the transition from the country’s earlier punitive repression of abortion, based on Hindu religious precepts of patriarchy and the high value that they place on women’s fertility, to guarantee economic access to safe and legal abortion services for poor women. Upreti explains how the Court, guided by a frame of transformative equality, required the government to ensure that women marginalized by poverty and geographical remoteness have timely access to free services.

The Lakshmi Dhikta decision represented a dramatic shift from treating abortion as a matter of crime and punishment to one of reproductive choice and justice grounded in a vision of transformative equality.  It underscored that abortion is a matter of personal choice, that women have rights over their own bodies and have the final say in decisions concerning their procreation. The Court obligated the government to address the multiple barriers women face in accessing safe abortion services, and to ensure that all women, especially those marginalized by socioeconomic and rural status, have access to abortion services.  In examining the relationship between women and pregnancy, the Court repudiated traditional stereotypes of women that reduce them to the role of bearers of children and self- sacrificing mothers, which have been employed for centuries to perpetuate their subordinate status. The Court established that pregnancy cannot be imposed on women as an obligation but rather recognizes it as a noble act that must be freely chosen.

Abortion Law in Transnational Perspective: Cases and Controversies was first published in August 2014 by the University of Pennsylvania Press’s Studies in Human Rights Series.   Table of Contents and other information online.   A Spanish edition was published in August, 2016.  Ahora disponible en español.

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