Constitutional Rights to Health Care and Right of Women

Constitutional Rights to Health Care and Right of Women

National Human rights Commission Act, 2068

The rights related to life, liberty, equality and dignity of a person provided by the Constitutio other prevailing laws and this term also includes the rights contained in the international tre regarding human rights to which Nepal is a party according to National Human Rights CommissionAct, 2068,

To ensure the respect, protection and promotion as well as effective implementation of hum rights.

Article 35 Right Relating to Health:

• Every citizen shall have the right to free basic health services from the State, and no one shall be deprived of emergency health services.
• Every person shall have the right to get information about his or her medical treatment.
• Every citizen shall have equal access to health services.
• Every citizen shall have the right of access to clean drinking water and sanitation.

Article 38 Right of Women:

• Every woman shall have equal lineage right without gender based discrimination.
• Every woman shall have the right relating to safe motherhood and reproductive health.
• There shall not be any physical, mental, sexual, psychological or other form of violence exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds Such act shall bepunishable by law, and the victim shall have the right to obtain compensation in accordance with law.
• Women shall have the right to access participate in all bodies of the State on the basis of the principle of proportional inclusion.
• Women shall have the right to obtain special opportunity in education, health, employment and social security, on the basis of positive discrimination.
• The spouse shall have the equal right to property and family affairs.

Right to Safe motherhood and Reproductive Health Right, 2075 (2018)

The UK Department for international Development (DFID) funded Nepal Safe motherhood Program in 1997, and its designation as a priority program. The National Safe Motherhood Policy. formulated and endorsed by the government in 1998, placed emphasis on strengthening maternity care (including family planning services) enhancing technical skills of health care providers at all evels and strengthening referral services for emergency obstetric care.

Main Features of the Act

• The act has covered four basic rights of women
  • Reproductive health rights
  • Safe motherhood
  • Right to safe abortion and reproductive health morbidity/illness

Basic objective of Safe motherhood and Reproductive Health Act, 2075

• To respect, protect and achieve the right to safe motherhood and reproductive health of women as guaranteed by the constitution
• To have motherhood and reproductive health service safe, qualitative, easily available and accessible to all.

Right to Reproductive Health:

• Every woman and teenager shall have the right to obtain education, information, counseling and service relating to sexual and reproductive health.
• Every person shall have the right to obtain service, counseling and information relating to reproductive health.
• Every woman shall have the right to safe motherhood and reproductive health. Every woman shall have the right to determine the gap between births or the number of children.
• Every person shall have the right to get information regarding contraceptives and use them.
• Every woman shall have the right to obtain abortion service pursuant to this Act.
• Every woman shall have the right to nutritious, balanced diet and physical rest during the condition of pregnancy and child birth and morbidity.
• Every woman shall have the right to get necessary counseling, obstetric care, and postpartum contraceptive service.
• Every woman shall have the right to get emergency obstetric care, basic emergency obstetric care, comprehensive emergency obstetric care, essential care for the new born baby and emergency care of the new born baby.
• Every person shall have the right to get reproductive health service needed during de situation of his/her lifecycle, in easily available, acceptable and safe manner.
• Every person shall have the right to make a choice of reproductive health service.

To remain confidential (Right to Confidential):

• The reproductive health service obtained by every person and information regarding this th remain confidential.

Right to Safe Motherhood and Newborn Baby

Right to Get Obstetric Service:

• Every woman shall have the right to get her examined or checked whether she is pregnant not, upon going to a health institution.
• The health institution concerned shall have to provide the pregnant woman, coming to service pursuant to sub-section (1), with the services as follows:
  • To check health at least four times during the pregnancy in normal condition,
  • To check health as per the advice of a physician or competent health worker during the prescribed condition except that referred to in clause (a),
  • To receive appropriate counseling relating to health care,
  • To obtain safety measures and minimum care to be adopted during pregnancy,

To Provide Obstetric Care:

• A governmental and community health institution obstetric care shall have to arrange competent health worker to provide obstetric midwife or other trained health worker if such a competent health worker is not available. care or 
• The non-governmental and private health institution fulfilling the standard prescribed the Government of Nepal shall have to provide obstetric care in a respectful manner.

Emergency Obstetric and Newborn Care: 

• The governmental and community he institutions providing obstetric care shall have to provide obstetric care in a respectful manner
• The non-governmental and private health institutions fulfilling the standard prescribed the Government of Nepal shall have to provide emergency obstetric and newborn care. by
• In case the health institutions referred to in sub-sections (1) and (2) are not able to manage the complications that arise while providing service by them, they shall have to refer to a governmental or community health institution to the extent possible and to a non- governmental and private institution if not possible.
• It shall be the duty of the health institution concerned to manage the health complications of the conditions related to the pregnant, childbirth or newborn who comes upon being referred pursuant to sub-section (3).
• The health institution providing emergency obstetric and newborn care shall have to make provision of resting place as prescribed for the pregnant women of the condi prescribed.

Health Care of Newborn Baby: The health institutions providing obstetric care shall have to make provisions relating to health care of the newborn baby as per the standard prescribed.

To Maintain Record of the Births of Infants:

• Each health institution shall have to maintain record of the infants born in that health institution.
• On the basis of the record referred to in sub-section (1), the health institution shall have to provide the father or mother with the certificate of the infant born in its health institution by stating the name of father or mother of the infant.
• Each health institution shall have to maintain a record revealing the number of the dead infants and the women who have undergone miscarriage or abortion.
• Each health institution shall have to maintain a record of dead women, if any, who come for the obstetric care.

Right to Obtain Family Planning Service:

• Every person shall have the right to information, make choice relating to family planning, and get other services relating to family planning
• The service relating to family planning as prescribed shall have to be obtained from the health institution as prescribed.
• Other matters relating to family planning shall be as prescribed,

Not to Get Family Planning Performed Forcefully: It is forbidden to get family planning of any one performed forcefully by coercing, or threatening or enticing or tempting or without obtaining written consent of such person.

Not to Get Contraceptives Used Forcefully: It is forbidden to get the contraceptives used by coercing any one, or threatening or enticing or tempting or without obtaining consent of such person.

Right to Obstetric Leave:

• Any woman working in a governmental, non-governmental or private organization or institution shall have the right to get obstetric leave with pay, for a minimum of ninety-eight days before or after the delivery.
• In case the obstetric leave referred to in sub-section (1) is not sufficient to any pregnant woman, such a woman shall have the right to get leave without pay, for a maximum of one year upon the recommendation of the expert doctor.
• A governmental, non-governmental or private organization or institution shall have to make necessary arrangement for the woman working in its office for breast feeding during the office hours up to two years from the birth of the infant.
• Even if any pregnant woman gives birth to a dead infant or if the infant dies after birth, such a woman shall enjoy the leave referred to in sub-section (1).
• If the wife of a male employee working in a governmental, non-governmental or private organization or institution is going to deliver a baby, such an employee shall get the obstetric care leave with remuneration for fifteen days before or after delivering the baby.

To Provide Additional Leave: If complicated surgery is to be conducted as per the opinion of the specialist doctor due to morbidity, the governmental, non-governmental or private organization or institution shall have to provide the woman working in its office with an additional leave with pay for a maximum of thirty days before or after conducting such surgery.

Reproductive Right to Safe Abortion

To Perform Safe Abortion:

A pregnant woman shall have the right to get safe abortion performed in any of the following circumstances:

• Fetus (gestation) up to twelve weeks, with the consent of the pregnant woman,
• Fetus (gestation) up to twenty-eight weeks, as per the consent of such woman, after the opinion of the licensed doctor that there may be danger upon the life of the pregnant wom or her physical or mental health may deteriorate or disabled infant may be born in case the abortion is not performed,
• Fetus (gestation) remained due to rape or incest, fetus (gestation) up to twenty-eight weeks with the consent of the pregnant woman,
• Fetus (gestation) up to twenty-eight weeks with the consent of the woman who is suffering from H.I.V. or other incurable disease of such nature,
• Fetus (gestation) up to twenty eight weeks with the consent of the woman, as per the opinion of the health worker involved in the treatment that damage may occur in the womb due to defects occurred in the fetus (gestation), or that there is such defect in the fetus of the womb that it cannot live even after the birth, that there is condition of disability in the fetus (gestation) due to genetic defect or any other cause.

Not to Get Abortion Conducted Forcefully:

• Except in the circumstance as referred to in Section 15, no one shall conduct or get abortion conducted with an intention to get the abortion conducted or knowingly or having reason to believe that the abortion can occur.
• No one shall get the abortion conducted by coercing a pregnant woman, threatening, enticing tempting her. 
• If any of the following acts is committed, it shall be deemed to have got abortion performed
  • Getting abortion conducted pursuant to sub-section (2),
  • Miscarriage that occurs while something is done to the pregnant woman with some enmity
  • Making assistance to commit acts referred to in clauses (a) and (b).

Not to Commit Abortion Upon Identifying Sex:

• No one shall commit or cause to be committed an act to identify the sex of the fetus in the womb.
• A pregnant woman shall not be pressurized or compelled or intimidated or coerced or enticed or entrapped in undue influence to identify the sex of the fetus.
• Conducting abortion or causing it to be conducted, by identifying the sex pursuant to sub- sections (1) and (2), is prohibited.

Safe Abortion Service:

• The licensed health worker who has fulfilled the prescribed standards and qualification shall have to provide the pregnant woman with safe abortion service pursuant to Section 15 in the licensed health institution.
• Appropriate technology and process of the service to be provided as referred to in sub-section (1) shall be as prescribed.
• The pregnant woman who wants to obtain the safe abortion service shall have to give consent in the prescribed format to the health institution which has obtained a license, or to the health worker who has obtained a license.
• Notwithstanding anything contained in sub-section (3), in the case of a woman who is an insane. who is not in a condition to give consent instantly or who has not completed the age of eighteen years, her guardian or curator shall have to give consent.
• Notwithstanding anything contained in sub-section (4), in the case of a woman who is below the age of eighteen years, safe abortion service shall have to be provided by considering her best interests.

To Maintain Confidentiality:

• The licensed health institution or licensed health worker shall have to keep confidential all records, information, documents related to reproductive health of the pregnant woman and counseling and service provided to her.
• Notwithstanding anything contained in sub-section (1) the records relating to such information, document and counseling service may be made available on the following conditions:
  • If information is demanded by the investigation authority or court in course of investigation and hearing of any lawsuit,
  • If it is required to quote without revealing identity of the related woman for the purpose of study, research or monitoring relating to safe abortion,
  • If the woman concerned demands herself the records thereof.