by Jan Goodwin
THIRTHA MAYA BARAL, 29, is CLEARLY ILL. Her skin has an unhealthy yellow tinge, her hair falls lank and greasy around her face, and she complains of headache, chills, body aches. Severely depressed, she weeps easily as she recounts how she has spent two years and three months in jail and has another seven years to serve. Her crime: giving birth to a stillborn child.
Embarrassed by her tears, she turns her head away to dab at her face with one end of her dirty, tattered cotton sari. There is little privacy in the Kathmandu Central Jail, Nepal’s largest prison. As we talk, guards and other prisoners crowd around to listen, to interrupt, to laugh. The guards are particularly raucous and I strain to hear what Thirtha says:
“It was my third baby. I was alone when I went into labor; my husband was working in India. The pregnancy wasn’t easy; my health had been poor, my legs very swollen, and the delivery was long and hard. No one came to assist me. I became very weak. And when the baby was finally born it was very small and dead.
“I lost a lot of blood. For four days, I couldn’t move. I had nothing to eat or drink. Then the police came to my village and arrested me.” Despite her condition, Thirtha was taken to the district jail closest to her village in the Terai, the sweltering plains region of Nepal bordering India, where she spent one year. Charged with infanticide, she had no defense lawyer. The only evidence against her was the statement of a neighboring family, who did not tell the police that they were involved in an acrimonious legal dispute with Thirtha’s husband. And no medical opinion was sought. In fact, Thirtha was never examined by a physician during her pregnancy or after delivery, which is common in rural Nepal. Nor was an autopsy conducted on the infant to determine cause of death. Despite the flimsiJAN GOODWIN is a human-rights activist, an award-winning journalist, and the author of Price of Honor: Muslim Women Lift the Veil of Silence on the Islamic World (Little Brown). ness of the evidence, Thirtha was found guilty and sentenced to 10 years in jail.
Thirtha’s husband is still unaware of her situation. Illiterate, the couple did not exchange letters, and their relationship has been limited to his intermittent visits home. Her two other children, a 12-year-old son and 10-year-old daughter, have been left to survive on their own in their village. “This is the worst, not knowing how my children are doing,” she says. “They are just roaming. What will happen to them?” She has not seen her children since she was jailed because she cannot pay for their two-day bus trip to Kathmandu.
The Rule OF Garbhabat Thirtha’s case is not unusual. An estimated two thirds of women in Nepalese jails are there charged with garbhabat (destruction of life), which under Nepalese law is a term applied to abortion, infanticide, and attempted infanticide through abandonment. As with Thirtha, garbhabat is also frequently used against women whose babies were stillborn, or who had a spontaneous or natural abortion. In court hearings, in which the defendant is usually the only woman present, the charge is all too often simply classified as “murder.”
Nepal’s abortion laws are confusing even to the legal authorities; they are also draconian. Abortion is prohibited under any circumstances, even in cases of rape or incest or when the pregnant woman’s life is threatened. (Bizarrely, if a woman kills her rapist within one hour of the assault, she receives legal immunity-but she goes to jail if she terminates a pregnancy resulting from the same attack.) Garbhabat can carry a life sentence, which in Nepal is interpreted to mean 20 years. (Since the average life span of women is only 50 years, for many such a sentence does mean life.) And while sentences of more than 10 years are meant to be automatically reviewed, Shanta Thapalia, a lawyer in her 60s and the president of Nepal’s Legal Aid and Consultancy Center, says that in decades of practicing law she has never seen an appeal overturn the original sentence in garbhabat cases. The courts also do not recognize any mitigating factors in these cases, which might lessen the sentence; whereas they do so with ordinary homicide.
Nepal’s abortion ban is based on ancient Hindu law. Ironically its much larger Hindu neighbor, India, has permitted abortion since 1972. But Nepal refuses to follow suit, despite its high fertility rates-women average six children-and its tragic infant mortality rates (one in 10 children dies in infancy). The maternal death rate is also extremely high, making Nepal one of only three countries in the world where females’ life expectancy is lower than males’. Physicians attribute this rate to women’s having “too many children, too early, too close.” Nepal also has one of the lowest per capita incomes in the world; the government’s own statistics report that half the population lives below the poverty line.
“We can’t feed the children we already have. Why bring another child into the world if it cannot eat?” asks Sandhya Basnet Bhatta, one of only six practicing female lawyers in the country and a spokeswoman for SUSS, the Service for the Underprivileged Section of Society, an organization that also works with women imprisoned for garbhabat.
Abortion Rights and American Funding Amendments to legalize abortion were originally drafted 22 years ago. Last summer they were tabled again by Nepal’s Parliament. Bill 2050, as it’s currently called, would permit abortion in the first trimester with the consent of the husband or, in the case of a single woman of any age, the parents.
“There is no actual political lobby for abortion,” says Arnand Tamang, director of the Center for Research on Environmental Health and Population Activities (CREHPA) in Kathmandu. “The present health ministry is weak, and women make up only 3 percent of Parliament. Abortion is not a government priority and will be less so with the new United States Agency for International Development [USAID] funding cuts.”
American funding has been the mainstay of family-planning programs around the world, including Nepal’s. USAID has already slashed 35 percent worldwide from its funding. The drastic cuts expected this year are expected to cripple such programs, as well as those devoted to maternal health care. “Washington not only dramatically cut our funds overnight; they have also delayed dispensing those for this year, which makes the situation even worse,” said one Nepalese USAID staffer. “If Nepal legalizes abortion, then we will certainly lose all of our funding.”
Sen. Mark Hatfield (Rep.-Ore.) blasts the cuts as a “rejection of common sense” by anti-choice members of Congress. “Funding for international voluntary family planning will be cut by 85 percent for this fiscal year, ostensibly to reduce abortions worldwide,” he said. According to the head of the United Nations Population Fund, these cuts- which had not been passed as ON THE ISSUES went to press-are expected to result in an additional 18 million unwanted pregnancies every year, tens of thousands of deaths among women and young children annually, and two million more abortions.
A sponsor of the measure, Rep. Christopher Smith (Rep.-N.J.) feels too much money was being spent on population programs. “Is there really a population crisis?” he asked rhetorically. “Is there any hard evidence that we are in imminent danger of not having enough resources for the world’s population? Or is fewer people just an aesthetic preference of the West?”
For Nepal, the figures speak for themselves, and they don’t speak of aesthetics.
Poverty, Propriety, and Revenge The reasons Nepal’s women most frequently cite for having abortions are extreme economic hardship because they already have too many children; poor health; or a desire to space children. In one survey, 95.9 percent of the women who had undergone the procedure were married. Yet antiabortionists continue to insist that a major reason for not le* galizing abortion is that it would “encourage immorality among single women.”
“Most of the women in jail are there on charges related to abortion. And in virtually all cases, they are found guilty,” says Bhatta. “Rare is the woman who is represented by a lawyer-she can’t afford one, and most lawyers won’t take these cases. Yet we know that false charges are often brought against women as a way of taking revenge on a particular man. So women end up being sentenced to 20 years, while men who commit murder average only 10 years.”
According to the respected Journal of the Nepal Medical Association, evidence from case studies shows that abortion cases have been deliberately classified as infanticide. Since the law does not clearly differentiate between abortion and infanticide, police and prosecutors tend to choose the latter. In addition to life, the sentence also includes confiscation of all the woman’s property-a provision that makes women particularly vulnerable to false charges from greedy inlaws or other relatives, neighboring villagers, even feudal landowners, who use the law to effect a property or land grab. It is not unknown for the police and prosecutors to be bribed into bringing the harsher charge.
All too often, a woman’s word is given less validity than that of the men accusing her. At 41, Jyoti (who was afraid of more family reprisals if her real name was used) has spent one quarter of her life in prison and still has seven years of her term to serve.
Widowed two decades ago at 21, Jyoti was unable to remarry. In Nepal a woman is expected to remain sexually faithful to her husband even when he is dead-the reason Hindu widows were formerly required to commit suttee (cremate themselves on their husband’s funeral pyre). A widow’s “adultery” was considered an unpardonable crime.
Living with her husband’s extended family as is customary for widows, Jyoti was forced to become her father-in- law’s concubine. When she became pregnant, he just as brutally forced her to have an abortion to protect his own reputation. Possibly the abortionist gossiped. Once word got out, Jyoti was arrested.
“Her father-in-law was among her public accusers, although in private he told her to accept the blame and promised he would get her out of jail within a month or two. Since then, she hasn’t heard from her in-laws,” says Roshan Karki, the general secretary of the Mother’s Club central committee, a national organization devoted to women’s health and welfare.
Karki, a member of the parliamentary board of one of the leading political parties, frequently visits women in jail. “Quite a few have been raped by their fathers-in-law or husband’s brothers. In this particular case, the man regularly beat women in his family and everyone was afraid of him. Jyoti was helpless.
“Her own parents were dead,” explained Karki. “With no means of support, Jyoti would have been destitute if she had left her husband’s home. Women are very vulnerable in Nepal.”
So are their children. In many cases, when women are jailed their offspring are effectively sentenced, too, ending up incarcerated because families encourage the father to divorce the mother and remarry. Traditionally, stepchildren are not accepted by a new spouse. At the time of my visit to Kathmandu Central Jail in March, 15 children-the youngest, 2; the oldest, 13-were serving time with their mothers.
Little Food, Less Sanitation Conditions are harsh in Nepalese prisons, and harsher for women than for men. Most of the 73 jails were built in the last century and have not been repaired or renovated since. The leprous-looking buildings with crumbling, mildewcovered masonry, leaky roofs, and windows without glass ensure that the cells are frigid in winter and stiflingly hot in summer. Fetid latrines lead to open sewers, and raw sewage frequently overflows, flooding prison yards. A cold-water tap in the yard is the only place where women may wash themselves, their clothes, and their cooking utensils-if the water is not turned off, as it frequently is. In Kathmandu in the summer, the city’s demand for water is more than double its supply, and rationing can be acute. As the capital’s population soars and luxury hotels for an ever increasing number of tourists proliferate, the water ration to the prisons shrinks.
Not surprisingly, sanitation in the jails is grim. With a lack of water, soap a luxury most cannot afford, and crowded conditions, scabies, fleas, and lice are rampant. So are rats and malaria-bearing mosquitoes. Prisoners are required to cook their own food and receive a daily allowance of 700 grams of rice (1 pound, 6 ounces) and 10 rupees (18 cents). Since the rice is of the poorest quality, the ration is reduced even further once stones and other debris are removed. The money must-but is insufficient to- cover all additional food, even tea, plus kerosene cooking fuel and all toiletries.
Until a prisoner has been sentenced and has served 18 months of her term, she receives no clothing or bedding beyond a thin jute mat, even though Nepalese winter nights frequently sink below zero. This “bed” must be shared with any children who accompany her. Once a prisoner qualifies, she receives a thin mattress, quilt, and pillow, and one change of clothing annually. But it can be many years before a woman qualifies for such minimal comforts. Attorneys explain that women can spend four years in jail before being sentenced. One woman who had been acquitted of abortion languished behind bars for 12 years while waiting for a higher court to confirm her acquittal.
Male prisoners may be given work activities, even schooling, but this is rarely the case for women. Authorities blame limited resources. Perhaps most illustrative of the different treatment meted out to male and female prisoners is Biratnagar Jail in southeastern Nepal. Seven years ago, during an earthquake that measured 7.5 on the Richter scale and killed many people, large sections of the jail collapsed. A year later, the men were moved to a newly constructed prison. Biratnagar’s female inmates continue to be incarcerated in the original structure. It is so damaged that it appears to be an abandoned ruin except for the armed guards outside and the electrified fence that runs around the top of the walls.
Women prisoners in Nepal are confined to their crowded cells at night. In one 8-by-12-foot cell I visited, the space was considered sufficient for 13 women. For “security reasons,” window shutters and doors are locked between 5 P.M. and 7 A.M., which means that inmates have no access to latrines during this time and no ventilation. And the lights are kept on 24 hours a day.
The cruel and unusual punishment doesn’t stop there. Infractions in the jail can lead to prisoners’ being chained, restricting all but slight movement. And until 1995, the mentally ill, even the severely psychotic, were also housed in jails, with the prisoners required to care for them. Despite the new law banning this, two chronically mentally ill patients, who are frequently extremely agitated, were housed with women in the Central Jail when I visited it, causing concern for prisoners who have young children with them.
Jailed Children “The conditions for children in our prisons are pitiful,” says Sunkaya Walba, chairwoman of PAM, the Prisoners Assistance Mission, a charity that assists women prisoners. She is correct. In jail, their rations are even more meager than their mothers’. Depending on their age, children receive 6 to 10 ounces of rice and no cash allowance; instead they are expected to share their mother’s meager stipend.
Recently, PAM opened a residential center for children who had been in jail with their mother. Unfortunately, funding limits PAM to beds for only 40. “When the children arrive at our center, they have the stick-thin limbs and big bellies of the malnourished,” says Walba. “All have respiratory diseases; some have TB. We even had one boy with a severe cardiac condition that needed major surgery. The children lacked basic primary health care; those born in jails had not been immunized, and none had received any schooling. Fleas, lice, and scabies were the least of their problems. [For information on contributing to PAM, see the end of this article.]
“The question, of course, that must be asked is why are they being punished for a crime they didn’t commit? Surely being confined in prison is a crime itself?”
“To be in prison with a baby is very hard,” says 19-year-old Anjali Moktan. “There is not enough food, no clothing or blankets for the baby or water to wash her with, and you know how often a baby dirties itself. Because there is so little water and kerosene, prisoners only cook once a day and eat twice a day. And what if the mad women harmed my daughter?”
Anjali was found guilty last year of attempted infanticide after she abandoned her now-18-month-old daughter at birth because she thought she was stillborn. Her baby now lives with her, and Anjali clearly loves her. The young mother was 17 when her common-law husband left her after he learned she was pregnant. (Another quirk in Nepalese law: Marriages are not required to be registered. Couples living together are considered to be married until the man denies the relationship. Consequently, many women like Anjali believe they are married but, once abandoned, are treated as immoral if they are pregnant or have children.)
Unable to afford prenatal care and unaware of her due date and other health issues, Anjoli gave birth late one evening in one of Kathmandu’s winding lanes. The infant and placenta were expelled together, and the baby’s head was covered by the embryonic membrane. Because of the caul, the baby did not cry, and in the gloomy light, Anjoli didn’t see it move. Convinced her baby was stillborn, she permitted a friend who was with her to lead her away.
Easy Targets Health practices, especially in rural Nepal, make falling victim to garbhabat laws pitifully easy. Stillbirths and miscarriages are common. “You have to remember that in a very impoverished country like ours, 80 percent of women of reproductive age are severely anemic because of poor diet. This compromises their health and that of their unborn child,” says Dr. Aruna Upreti, a maternal and child-care specialist. “Many women simply aren’t able to carry their babies to term.” Contributing to this is the practice of depriving pregnant women of green vegetables, milk, and yogurt. Many families believe such foods to be bad for the woman’s health at this time.
“Another factor is that in large parts of Nepal, tradition decrees that a woman give birth unattended, which usually means she does so in the cowshed, the least hygienic environment one could find. She is then required to remain isolated for a further 11 days in the same shed,” says Dr. Upreti. “Under conditions like these, is it any wonder that babies are frequently born dead, and women too easily accused of killing their infants?”
Ganga Devi, a 35-year-old mother of three, did not live long enough to be accused of infanticide, but she might well have been had she survived the birth of her fourth child in 1994. Alone and in agony as her labor continued for days- her baby was in a transverse, and therefore locked, position-Devi was driven to perform a primitive cesarean on herself with the nearest tool in the family’s animal hut, a sickle. Demented from pain, she tore the child from her body and threw it across the floor. The infant was found dead. Devi lived long enough to give a television interview from her hospital bed before dying of massive gangrene.
Rural police officers making the arrests are themselves barely literate, With little understanding of physiology and certainly no medical knowledge. Rarely are physicians available to be consulted. The limited education of law-enforcement authorities at the grassroots level virtually guarantees shoddy evidence- gathering. Word-of-mouth statements are too often relied on, particularly when they come from influential people in the community. Beatings and torture are also used to extract “confessions,” according to Nepalese human-rights activists.
A Crime of Status Nepal’s harsh laws do not mean that it is impossible for all women to get a safe abortion. Modern hygienic abortions- vacuum aspirations and D&Cs-are readily available in Kathmandu to those who can pay for them. “There are a number of doctors in this city who do nothing else,” says Dr. Upreti. “At 3,000 to 5,000 rupees for married women, and four times that for the unmarried, they make a very nice living. The police all know where these clinics are, but turn a blind eye when the elite are involved.
“Abortion is a crime of status,” Dr. Upreti says. And she has personal experience; she is quite open about having had two abortions herself. “I had one when my first child was only four months old, and the second time was when my contraceptive method failed,” she says. “The government doesn’t have the courage to have me arrested because of my position in society. I even admitted it once on television in a discussion on abortion, but that part was cut.”
A young social worker who works with women jailed for having abortions also freely admitted to having had one herself. “My career was just beginning, and it was not an appropriate time to have a baby,” she said.
Instead of a modern clinic, impoverished women who seek abortions face untrained practitioners and primitive methods: the insertion of sharp sticks, glass, or hose pipes, often smeared with cow dung, caustic substances, even toothpaste, in an attempt to stimulate uterine contractions. Herbs and sometimes poisons are also given orally. A favorite is large quantities of the vermilion powder, made from red mercuric sulfide, that married women use to color the part in their hair.
Having spent years treating complications from illegal abortions, which account for more than half the maternal deaths in Kathmandu hospitals, Dr. Upreti is a strong advocate for legalized abortion. “Perforated uteruses, massive gangrene or sepsis infections, hemoglobins impossibly low from severe hemorrhage, are all so common,” she says.
While the full force of Nepalese abortion law is readily applied to impoverished women, the elite-and the physicians who perform these procedures in expensive clinics-go free. So do the sexual partners who father these children; if a woman is arrested, the man can escape prosecution simply by denying that he is responsible.
The Failures of Family Planning Supporters of legalizing abortion in Nepal are the first to agree that the procedure shouldn’t be used in lieu of contraception. Nepal’s government has run an intense family-planning program for two decades, with limited success. In part, distribution of contraceptives has been hampered by some of the toughest terrain in the world. “We’d teach women in a remote village about the pill and leave a year’s supply,” says one familyplanning expert wryly. “Then we wouldn’t be able to return for 18 months. By the time we did get back, half those women were pregnant.”
Poor management and/or limited funds are other factors. In 1989 and 1990, the country’s supply of IUDs ran out; two years later, the same thing happened with Depo-Provera. More recently, the government claims that distribution has improved, with most women now living less than two days’ journey from the nearest family-planning clinic.
What has scarcely improved since the government’s program began, however, is birth control usage. Although most women are now aware of modern contraceptive methods, only 21 percent of those in their reproductive years use them. The failure rate is blamed on several factors-poor counseling, worrisome side effects, and superstition. Unable to read instructions, illiterate women need more time to understand how to use contraceptives and what to do if there are problems. And since the methods most commonly promoted by the government are Depo-Provera and Norplant, side effects are common. Norplant has been so problematic in the United States, for example, that it is currently the subject of a class-action suit. Many Nepalese also superstitiously believe that women will be less able to work if they use contraceptives. Consequently, many men pressure their wives not to use them.
The government also operates mobile sterilization camps where women, with their husband’s permission, can obtain laparoscopic tubal ligations. Although vasectomy is a simpler, less risky procedure, many Nepalese men are reluctant to undergo it, believing that it will damage their sexual performance.
Physicians in the sterilization camps receive a cash incentive for every laparoscopic tubal ligation they perform, as many as 50 to 80 a day. Not surprisingly, there have been some failures-sterilized women later becoming pregnant. In fact, a recently released American government study of sterilization found a 5 percent failure rate in women under age 28.
By the time a Nepalese woman is 28 she frequently has had many children (the average for women seeking sterilization is five). This is in part due to girls’ being married at a very young age, even before puberty. Technically, child marriage is now outlawed, but a government report shows that it is still widely practiced. Another reason women have many children is to present their husbands with sons, who are highly valued in this culture.
Dr. Upreti calls her government’s family-planning efforts “one of the most unsuccessful ‘successful’ programs in Nepal.” The 45-year-old physician once worked in the Health Ministry’s familyplanning department but quit in disgust when her superiors opposed her campaigning for legalized abortion.
“When family planning doesn’t work, women have no choice but to seek abortion,” she says, “and many of them end up dying from it because primitive methods are used by untrained abortionists. Doctors don’t want to work in rural areas. It’s too uncomfortable, and there are vast areas of the country without a single physician.”
The unnecessary deaths and imprisonment of women every year in Nepal are likely to continue, say activists. And since many of the elite can buy themselves both justice and abortions, the needed critical mass of opposition to the garbhabat laws is unlikely to build, even if international funding for abortions at family-planning clinics were to be made available.
“Opponents of abortion talk about the rights of those expecting to come into the world. What about the rights of those who already exist?” asks Shanta Thapalia. Adds Dr. Upreti: “Of course abortion should be legalized. But it won’t be while women in this country are considered less valuable than buffalo.