Mentally Challenged, Raped, Pregnant. Abort?

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.

Background

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.HandicapLogo

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.

The State

  • “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.

The Woman

  • “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.Pregnant_belly_button
  • 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.

The Court

  • 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?”Scales_of_Justice_(PSF)
  • “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.

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  • Mahendra

    I find the whole case very puzzling. It turns on the definition, the highly subjective definition of mental retardation, conflated with the issue of consent, conflated with the issue of a woman’s rights on her own body, the body that has been violated against her consent mainly because she is not fully mentally capable. It goes round and round. I definitely do not envy the Supreme Court lawyers their job of deciding what to do/ what to have done.

    All this apart, I want to know – what happened to the rapist? And why should he, assuming he is sound of mind (although why a sound mind man should rape a woman in his “care” is beyond my imagination!), not look after the child? But then again what kind of father might a rapist make? And what is to say he won’t abuse this child?

    For a change, I do not wish to air my opinion which is driven by my having seen at close quarters what parental neglect can do to a child in a society like ours.

  • I am very clear on this. I am pro-abortion but not pro-murder. A baby after 25 weeks is a human being and deserves the right to live. There are hundreds of people who would be willing to take care of the child. Adoption procedures in India are unfortunately cumbersome and this is where we need to step up.

  • //should poor women, who are found lacking in bringing up their children, be allowed to become mothers

    I should be the last person to comment on women and pregnancy, but I found one particular argument very appalling. I’ll boldly say that I feel that half of the parents out there don’t know how to raise a child, or don’t want to – but are forced to do it under the norms and expectations of society. But using this argument to support the subject’s appeal to keep the baby, is unjustified.

    // Is it not possible for the Chandigarh administration to take care of the child?

    I also think that the anti-abortion argument is overly egoist and self-congratulatory. What’s the plan to raise the baby? Give it to the government? i.e. give the baby to the same administration that ‘took care’ of the subject at Nari Niketan. Again, I don’t understand how a parent can be absolved of her responsibility so easily.

    Unfortunately, women are the victims – as always.

    Overall, I think there’s a complete lack of rationalism in this judgment. It might be idealist, but who cares about idealism?

  • > This case is unique in that it places a pro-choice
    > activist against the abortion.
    mahendra – Why is that unique? Doesn’t pro-choice simply means choice which includes both for and against abortion as determined by the woman? Yes they are mostly pitted against “anti-abortion” – but that doesn’t mean we should expect them to be always “pro-abortion”or that this is an unique aberration. You know very well that pro-choice at the heart, and its spirit means to leave the choice to the woman. This – even if we eventually feel that her choice is wrong, or if her judgement seems suspect to us.

    But I wonder if the pro-choice people consider “what if a particular woman’s judgement is bound to be suspect because she is clinically established as mentally disturbed/unstable/retarded”. I am pro-choice, and I must admit that this is a troubling question when I consider it. Once someone is deemed clinically retarded (a decision which itself is not 100% reliable), do they still retain all their rights?

    This is obviously a complex and challenging issue. Although I have not combed through the details, IMO, the court seemed to have made a pragmatic decision. I say this mainly because the core sentiments behind these:

    1. “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?”

    2. (the first part of this statement:) “after 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”

    The court effectively says: Is there a good chance for the child to be born healthy? Is there a good chance for the child to get care? Then let us respect her choice.

    This seems like playing both sides – but really only at the surface. Say, the sane woman instead WANTED abortion. Although i am not 100% sure, but I think the court would have made a similar decision. In that case, it would have been a pro-life argument – the last statement would be “The let us go against her choice and allow the pregnancy to its natural completion” 🙂

    Arun

  • It comes down to this: there can be no meaningful rights for a person without bodily sovereignty. If you do not have control of your body how can you take advantage of any other rights? Having bodily sovereignty means the ability to do things with your body that other people may believe constitute poor decisions.

    In this case, a young woman was already violated in this regard. To force her to have an abortion would be a further violation.

    That she was able to express a desire to continue the pregnancy shows that she understands her condition to some extent. We don’t know how she understands it, but then it’s impossible to be certain that any two people ever understand the world in the exact same way. Where then can the line be drawn? It’s subjective wherever you place it.

  • i was appalled by the judgment.
    would you let a 9 year old have a child ??

    i find the entire action taken to let the child bear the baby irresponsible and not thought through.

    is a 9 year old competent to bring up the child ? if the baby is going to be given up for adoption – is the woman merely a vessel for bearing a child ?

  • We have comments from 7 people and votes from 9, so far. 3 for Right, 1 for Wrong, 5 for Difficult to say.

  • Mahendra:

    To me the whole case seems to be about how a person not deemed competent (in the legal sense of the term) of making a decision should be treated in the eyes of the law. Relatedly this news article may interest you as well.

    http://www.guardian.co.uk/world/2009/jul/31/gary-mckinnon-loses-extradition-appeal

  • I find myself in total agreement with the commentator you have linked to (E). This is a perennially troublesome ethical dilemma. Overall, I would support the Court’s decision, though I don’t know its rationale. The law cannot purport to decide for the mother, especially when she is not fully dependent. If the victim were raped and impregnated while in a coma or under a ventilator, what would be the right situation? Obviously, the situation would change, and the State would take full responsibility for the health and safety of the mother, as she is clearly not in a position to take a decision. This is akin to acts taken without relatives’/patient’s consent by doctors in emergency/exigency, acting in ‘good faith’.
    You do as well as your good intentions allow, and take what comes next.
    As far as fetal age and rights is concerned, I believe the mother comes first, in case of a conflict of interest, for the reasons you have already stated.

  • No, I meant the comment by Ekswitaj.

  • priya

    I find this judgement completely futile . How can a mentally challenged woman allowed to have a baby when she is not competent to raise her child . The court by allowing her to deliver the baby is adding one more orphan to the society . How can you expect any NGO to fill the place of a mother . None can take care of a child as better as a mother and the court expecting that from an institiution is something which cannot be assimilated . By chance if it is a girl child and she is left at the mercy of an institiution ..the same thing can happen to her as it happened to her mother ..sexual abuse … How can the life of the child be secure without a parent . i dont respect this judgement sorry! . Further we are talking about the right of a woman who even dont know what a “right ” is ..she cant enjoy the motherhood , she is completely unaware of the whole misfortune .

  • SS

    Mahendra,
    You’ve done an excellent job in laying out the whole case here. I came upon your post while looking for what bloggers are saying about this so I can include that in my post.

    Phew! What can I say. If I start here, I’ll land up saying more than the original post 🙂

    I’ll keep it short. After reading the case in as much detail as possible, I feel both the courts did a fair job of handling the case and both had the best interests of the girl in mind. Some people have tried to make this into the American argument of pro-life vs pro-choice. I don’t agree. Both the courts focused on the girl and not the child. It’s clearly pro-choice.

    Given how complicated the facts are, they made a sincere attempt to deal with it.

    In my readings of other blog posts, I find that a lot of rage is misdirected because many didn’t have all the facts of the case. The more I read it, the less anger I have towards the courts.

    Anyhow…if u get a chance and time, do read my post and let me know if I missed anything.

  • Mr.Mahendra
    We can’t actually comment on the judgement as it has two sides.While we see the negative effects that their is no guarantee that while the child,whose in the womb of a child(referring to the girl) will b well taken care of..she is unaware of the precautions she should take during her pregnancy she doesnt even knows what child birth is like more over the pain of child birth will add to her ill mental condition..flip side aborting the child against her will can b futile to her again..why kill a life when someone can takecare of the child so there is no end to the discussion now the decision has been taken let nature takes it care….i rally appreciate all of your efforts that we all our so concerned about the poor one….