While Barack Obama proclaims White House support to the UN Convention on the Rights of People with Disabilities to which India is a signatory, the Indian Supreme Court has delivered a landmark judgment in a unique case of young woman in India. My apologies, but the subject necessitates a lengthy post.
Born in 1991, this woman was abandoned by her family in ‘98, when she was just seven years old. After a few years with the Missionaries of Charity, she went to her new home: the state-run Nari Niketan in Chandigarh, India. Though she is 18 years old today, she is said to have the IQ equivalent of a 9 year old. In this state-run institution, she was repeatedly raped by the staff, four of whom have been arrested. All this came to light only when she was shifted from there to another state-run institution Ashreya. The latest unsubstantiated evidence casts further doubt on where exactly she was raped, and on the entire police investigation so far.
When medical investigation revealed that the woman was pregnant, the Chandigarh Administration decided that it was in her best interests to abort the pregnancy. The girl expressed an unambiguous and unequivocal desire to keep the child. Responding to the state’s petition, the state High Court ordered an immediate termination of pregnancy.
A Delhi based lawyer Suchita Srivastava challenged the order, filing a petition in the Supreme Court. After several days of intense debate in the media as well as the public, the Supreme Court refused to allow termination of pregnancy, and stayed the High Court order.
Advocate Tanu Bedi who had earlier assisted the High Court as amicus curiae, argued for the woman, against Administration counsel Anupam Gupta. The highlights of the debate in court as reported in the press offer the gist of the arguments and the court’s judgment.
- “Consent of the victim cannot be decisive. The so-called consent of the girl is no assent either in law or fact.”
- Reacting to the statement that mild mentally challenged people have the capability to take a decision for themselves, Gupta said: “This is a myth, which is completely belied by present scientific knowledge. It is a structural edifice of myth built on a foundation of highly wishful postulates of mental retardation. The argument is underlied by sincerity and overload of commitment, yet it is mere euphoria.”
- Dismissing the emphasis that the girl’s desire to give birth was ultimate, Gupta said: “If this expression of desire is taken as consent, it will be a complete travesty of consent in moral, philosophical and legal category. How can one question her regarding termination of pregnancy when she does not even understand what pregnancy is? She is blissfully oblivious of her pregnancy and unaware of the sexual act.”
- Reacting to the argument that children of mentally challenged rape victims can be taken care by institutes like Nari Niketan and Ashreya, Gupta said: “It’s easier said than done. We seem to be living in a realm of imagination. I am not trying to run down the argument by calling it a fantasy but such change, although welcome, is yet an illusion in our society.”
- Senior counsel Colin Gonsalves, appearing for a social worker in favor of abortion, cited medical reports and said the continuation of pregnancy could result in complications, considering the girl’s age, mental status, and previous surgery. He said she was not aware that there was a child inside her, and hence could not mother a child.
- “It would be a travesty of justice if a mother has to come to the highest court of the land to seek permission to give birth to her own child”.
- Consent of the victim matters most. “She is not mentally incompetent to give consent. Despite her communication problems, she has expressed her desire to give birth to the child. She has immense strength and resilience. We don’t even know our destiny, how can we script the future of someone else?” concluded Bedi.
- Ms. Bedi argued that doctors did not form the opinion that termination of pregnancy was in the best interests of the girl, and that the medical report suggested that she required support and supervision to help her raise the child.
- Counsel argued that termination of pregnancy against the mother’s wish was against the provisions of the Medical Termination of Pregnancy Act, 1971, and the Rights of the Disabled.
- If her mental age is a consideration for the judiciary to think that she cannot take care of her baby, why should poor women, who are found lacking in bringing up their children, be allowed to become mothers?
- Ms. Bedi said India was a party to international conventions that uphold and preserve the rights of the disabled, which had been given the go-by in the impugned order. “We have to respect the girl’s right to life”, she said.
- Ms. Bedi argued that the victim had a right to give birth to her child. She said the National Trust constituted under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, had agreed to provide her social and financial support and take care of the child after delivery. Counsel for the Trust said it was funding several institutions and would support the girl.
- Before the judgment: “What you say is right if she is not a mentally retarded person,” Chief Justice Balakrishnan told Ms. Bedi. “We are worried about her future also because she is an orphan. No NGO is going to look after her. It is a difficult decision for us.”
- “We are not in favor of termination of pregnancy. If there are no further complications to the woman in continuation of her pregnancy, then why abort a life?”
- “We are sure that somebody will be in a position to give protection to the child. Our anxiety is the fetus is already 19 weeks. The second medical opinion says her physical condition is good to bear the child. The child is not suffering from any deformity. Nature will give her biological protection. If somebody is ready to take care of the child, should we even then order medical termination of pregnancy? Nature will take care on its own.”
- Justice Sathasivam told Gupta: “Is it not possible for the Chandigarh administration to take care of the child? Is it not your responsibility to protect her?”
- “We know as a natural mother she will not be able to take care of the child. But if somebody is ready to look after the child, then there would not be any problem.”
- After being satisfied that several national-level NGOs had come forward to take responsibility of the child, the 3-member bench was reluctant to accept any other arguments supporting her abortion.
- Acknowledging that if a baby is aborted against her wishes, it would cause further trauma to the woman, the court ordered that the baby should be born with “mother under constant care and supervision”.
I have no way of assessing general public opinion, but in my experience, the opinion regarding the court’s judgment has been largely negative. See this blog post by Aditi Ray on Sulekha. Prerna’s post has a slew of comments criticizing the judgment.
The Bioethics Discussion Blog asks readers’ opinion regarding permanent sterilization of mentally disabled women, and asks if disability rights groups should ever sacrifice the disabled individual to the group’s agenda. I also found an interesting student paper at the University of Kentucky’s Dept. of Philosophy, Health Care Ethics on mentally retarded women and forced contraceptives. Finally, the UN’s Women with Disabilities page is a gateway to much more information and links.