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.…