If I asked you “Is abortion legal in Bhutan?” your answer will most probably be NO!
As a society where abortion is rarely discussed given the societal taboo surrounding the topic, and based on the high probability of it being considered morally wrong or sinful, your answer would not be surprising.
But are you right? Or wrong?
Let’s walk through the abortion clause in the Penal Code of Bhutan 2004 to determine that. It states “A defendant shall be guilty of the offence of illegal abortion, if the defendant unlawfully aborts or induces expulsion of an embryo or fetus or prevents child from being born alive, except the act is caused in good faith for the purpose of saving the life of the mother of when the pregnancy is a result of rape or incest, or when the mother is of unsound mental condition.”
Now, you think you are right.
Hold on to that thought, please: it is possible that someone reading it might interpret it as suggesting that abortion is illegal after all the language is crafted in a way there is emphasis on “illegal abortion”. However, reading between the lines makes it ABSOLUTELY CLEAR that abortion IS legally permitted under certain circumstances which implies that the legal framework tends to lean towards recognizing abortion as legal in general rather than illegal in general.
Therefore, the truth is that abortion is actually legal in Bhutan because it is not universally prohibited in the country!
This shift in the conversation around abortion from viewing it as totally illegal to legal under certain conditions will increasingly normalize it as a health issue, akin to any other health concerns. When abortion is destigmatized, individuals are more empowered to exercise their rights within existing legal frameworks, particularly women facing unwanted pregnancies who may be unaware of their options.
Why is this important?
Because this shift could lead to a reduction in maternal mortality and morbidity rates, ultimately enhancing the overall health of pregnant individuals. Although Section 146 permits abortion conditionally, it could be amended to expand its understanding of abortion not just as a health issue but also as a human rights issue.
Why is it a health issue?
When access to abortion services is limited based on specific conditions or criteria, the existing law overlooks the complex healthcare needs of individuals facing unwanted pregnancies in terms of physical, emotional, and social well-being and prevent them from accessing the care they need to safeguard their health.
Why is it a human rights issue?
From a human rights perspective, restriction to safe abortion services may be viewed as a violation of women’s rights to bodily autonomy and reproductive health. It limits women’s ability to make decisions about their own bodies and reproductive choices, particularly in cases where they may face unwanted pregnancies due to contraceptive failure, economic hardship, or other personal reasons – none of which should actually matter in accessing safe abortion services as long as it is the pregnant person’s choice to discontinue the pregnancy.
More importantly, it is about time that there are reforms to ensure that pregnant persons, especially women and girls have the ability to make informed decisions about their reproductive health without fear of criminalization or discrimination. Pregnant people should have access to safe and legal abortion services regardless of their reasons to uphold their reproductive rights and ensure their health and well-being. Bhutan must move ahead by abolishing outdated legislation and completely legalizing abortion because such imperial law has done more harm than good, as evidenced from the very little data available on abortion in the country.
In Nganglam in eastern Bhutan, it was found that 58.4% of 683 women were aware of individuals crossing the Indian borders to access abortion services (Choden, Pathak, & Pem, 2015). Another study by Kinley Wangdi and Manish Raj Gurung revealed in retrospective analysis, a total of 465 abortion cases were treated in Phuentsholing General Hospital between 2008 to 2011. On the other hand, 77 patients were recruited for the prospective study over two years from March 2012 to February 2014 out of which 59.7% had spontaneous abortions (aka miscarriage) followed by induced abortion (both medical and surgical outside the hospital) at 35.1%.
At national level, the Women, Children and Youth Committee reported to the National Assembly in 2016 that there were 1,566 cases in 2015 up from 1,399 in 2011 which translates to approximately 549 and 491 induced abortions respectively if the induced abortion rate of 35.1% found in the study was to be considered nationally representative. These statistics represent real individuals with unmet reproductive needs, indicating a failure on the part of the state to protect them.
Global studies have shown repeatedly (including Guttmacher study, 2022) that when abortion access is legally restricted it will reduce safe abortions and increase in unsafe abortions, resulting in higher burden of morbidity and mortality. In countries with numerous legal restrictions, the proportion of unintended pregnancies that end in abortion has increased over the last three decades. This is reflected in the on- ground reality of Bhutan also where despite legal restrictions and the prevalent belief that abortion is completely illegal, it continues to occur, probably with more unsafe abortions than safe ones – hence, making abortion illegal is not the answer.
Furthermore, due to limited data and lack of reporting, the mortality rate resulting from these induced abortions remains unknown, posing a significant risk and making it impossible to address through public health measures.
Besides Penal Code 2004 that briefly addresses abortion, there are no other legal documents that discusses it except ‘Standard Guidelines for the Health Workers on Management of Complication of Abortion’ which is not commonly known to the general public. As per the guideline, the abortions are permissible for reasons such as saving women’s life, physical health, mental health, intellectual cognitive disability and fetal impairment and these conditions are permitted until 180 days or 6 months of pregnancy which the Penal Code does not cover. It also goes on to point out that abortion service is not offered on request, and for economic or social reasons which is the very reason that many women from low income risk their health, and even their lives by crossing borders to Jaigoan to get backstreet abortion services.
It is thus crucial to have at least one more document that is non-technical and easily accessible to the public which could serve as an educational resource, thereby increasing awareness and understanding of abortion laws, rights, and available services. When clear and comprehensive information in a language that is easily understandable for the general public is provided, it can empower individuals to make informed decisions about their reproductive health and rights. More importantly, stigma and misinformation surrounding abortion can be greatly reduced and in so doing, a more supportive and informed societal discourse on this important issue can be achieved.
Overall, Bhutan is managing well in the front of sexual and reproductive health and rights (SRHR) with more young people engaged in SRHR dialogues than ever. However, it is equally important for policy makers, those vested with real power, to understand the issue of abortion within the broader context of SRHR and advocate for abortion as a burning SRHR issue. This is because many SRHR advocates in the country either do not address abortion or dismiss it by citing its illegality.
However, with a strong spokesperson for safe abortion in spaces of national importance like the parliament, it would be easy to get the ball rolling for complete legalization of abortion. It seems we may be fortunate enough to have such an individual.
It has been almost a long dozen years since our returning Honorable Prime Minister Dasho Tshering Tobgay expressed his support for abortion rights through his blog “legalize abortions”, however, upon assuming office in 2013, he was not able to enact any changes in this regard. Nevertheless, the second term is the charm for the Honorable Prime Minister to champion the reproductive rights movement by promoting safe abortion as healthcare which aligns with the principle of bodily autonomy for women and pregnant individuals, regardless of their decision to continue with the pregnancy. As a torchbearer for initiating public dialogue on abortion, we urge the Honorable Prime Minister to continue to lead the way towards the comprehensive legalization of abortion.
For a country globally renowned for its Gross National Happiness Philosophy, we need to do right by the women and girls who have been risking their lives and dying of unsafe abortions due to lack of information, services and a law that restricts their human right to autonomy, health and a life of dignity.
Contributed by,
Wangchuk Dema
SRHR/Safe abortion rights advocate