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.
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.
- 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?”
- “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.
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 .
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.…
Do we even know who the father is? No DNA tests seem to have been conducted so far. Also, would the Courts ever want to give this responsibility to a rapist? Assuming that the rapist is identified, he should be in Court. I don’t think a convict can take care of a new born baby.
Shefaly,
For me, the key point is not the disability, but one’s moral stance regarding rights of the fetus. All the arguments I’ve seen for the abortion hinge on the concern for the as-yet-unborn child taking precedence over the rights and wishes of a living mother.
There has been debate over the rights of the fetus on this blog before, and the different perspectives on this contentious topic are well summarized here and here. My opinion is the same as that of Rand’s.
Hence, I find myself tilted in favor of the court’s opinion. This case is unique in that it places a pro-choice activist against the abortion.
Whether the woman will be able to take care of the child, whether our govt/society will be able to provide adequate support, etc. are all valid concerns that I share. However, I am not willing to abrogate a woman’s right — however mentally challenged she may be — for the sake of a potential human being. If in the future, the child and/or the mother suffer disastrous consequences, nature will have taken its course. By interfering and negating the woman her fundamental human right, we are assuming moral responsibility for any disastrous consequences arising out of the abortion forced by us.
Hey, I’ve seen a number of Hindi movies where the rapist is made to marry the victim and raise the child, “and they live happily ever after”.
I agree. No, the rapist has not been identified — in fact, as mentioned in my post, latest evidence shows ambiguity over where the rape occurred.
Nita, in this case, the judgment was delivered during the 19th week.
Mahendra, I find some definitions of “rights” very situational (or narrow). Is the fetal right limited to being born, or does it have a right to be born and lead a good life?
People have used the scope of rights in interesting ways. “Its my right to have unprotected sex”, then “its my right to abort”, and finally, “its my right to leave the woman” or “its my right to abandon the child”. In isolation, these sound lovely rights, but in a holistic view, they are quite destructive.
That’s why I included several links to what I consider to be at least ‘reasonable’ interpretations of rights. And I think Ekswitaj has said the last word on this, in the context of this case, at least.
//But using this argument to support the subject’s appeal to keep the baby, is unjustified.//
I don’t understand why, and I don’t agree, but for me, the specific arguments used by the lawyers is not that important. Lawyers will always try to make the best out of their case. I think it would be beneficial for us to focus on the issue in our terms rather than the arguments used by the respective lawyers.
//I also think that the anti-abortion argument is overly egoist and self-congratulatory.//
What is wrong with being egoist? I don’t understand how it is self-congratulatory.
//What’s the plan to raise the baby?//
Why should we have a plan that is different from what the mother has?
//I don’t understand how a parent can be absolved of her responsibility so easily.//
The issue is not whether a parent can be absolved of such a responsibility, but whether we are allowing a woman to become a parent in the first place.
//Unfortunately, women are the victims – as always.//
I find this utterly contradictory to what you seem to be saying. If we forcefully prevent a woman from being a mother, aren’t we turning her into a victim of our ideas and expectations?
Yes, Arun, I too think the court in this case made what can be called a pragmatic decision and you’ve described it nicely.
I don’t think this case would have reached any court if the woman had not wanted the child.
Well said, Ekswitaj. I can’t add anything further. Thank you.
I fully agree with everything you say. However, I am worried of what would happen to the baby once it is born. While we would be celebrating and partying over this honoring of rights, the baby would be left with inadequate parenting — just like millions of other babies in the country. We have too many awful parents anyway, why add another parent who is known to be a baby herself?
Sounds like a case of winning the battle but losing the war.
I find this to be an appalling oversimplification.
This is a 19 year old woman whom we have judged to be mentally challenged.
I have not seen any mention of adoption or any plans of separating the to-be-born child from its mother. I don’t think anyone should be planning anything for the baby against the mother’s wishes.
actually it isn’t. the body is of a 18 year old the mind of a 9 year old.
this is not a woman but a child. it is appalling that she has been abused like this. it is worse that she is pregnant. and it is tragic that she is delivering the child.
i only hope that it is a boy — otherwise, given the nature of ‘institutionalized care’ in this country — we are asking for history to repeat itself.
i hope that the men who raped her — whether they are the ‘donor’ of the sperm or not — are compelled by the court to pay compensation on a monthly basis to the upkeep of the girl and her child. Since she is 18 — and the repeated rape happened prior to that maybe they can get the rapists on child rape charges !!
hey guys,Iam a child development student i ws told to present a report on wot ppl’s opinons bout d judgement…but its really ironical dat ol,ol of youy ppl , d society d supreme court evry1 discussing bout d girl’s pregnancy and its a big big issue now…and under this huge hipe noone remebers dat d poor girl with a 9 year old’s IQ has been multipllyy raped…wot bout d punishments given to the rapists..only 4 are caught…under this huge hipe der crime is hiding and dey wud be released with some minor punishment as evry1 is worried bout d girl’s pregnancy…guys d trauma and pain of rape for a mentally challenged is just d same as a normal girl…and v shud put more light on d convicts so dey dont hide behind d hipe we ol r making…
I too am worried about the child, and there is no need to say that anyone will be celebrating — there is nothing to celebrate in this tragedy.
It’s fair to be concerned about the child absolutely, and without social programs that provide appropriate support the victory certainly is not a complete one.
Shefaly,
I can understand when the ‘decision’ involved concerns or is related to other human beings. In my opinion, there are no other human beings this woman’s decision affects. A fetus is a potential, not an actual human being, and the woman’s wish or desire in this case is entirely and solely, her own.
If it were a person who has broken the law in some respect, like the example of the hacker, then the law has to intervene. I don’t understand how the society or the law can take matters into its own hands regarding the private wish of a pregnant woman.
> In my opinion, there are no other human beings this
> woman’s decision affects.
I am not sure. If she is legally deemed incompetent to make this decision, then the chances of child having fend for itself, or be in someone else’s care is high. So from that regard, one can argue that her decision certainly can affect many others in the very near future.
> I don’t understand how the society or the law can take
> matters into its own hands regarding the private wish of a
> pregnant woman.
Wouldnt it depend on what the (Indian) [i]law[/i] says regarding the rights of a woman vs. fetus? (what does it say? I do not know).
I mean that if we want to comment on where law has to intervene, then we must abide by what the Indian law says about the rights of a fetus. Unless you mean that laws [i]ought[/i] to not give any rights to a fetus, and thus [i]ought not[/i] intervene here (?)
Arun
As far as I know, Indian law allows termination of pregnancy till the fetus is 20 weeks old. Hence, a fetus younger than 20 weeks (which it was in this case) does not have any legal rights.
Thanks, doc. Appreciate your taking the time. I think I agree with your opinion.
What do you mean by my linking to a commentator (E)? Do you mean a link in my post or the comments below? (All comments are by the respective people themselves).
Snigdha,
First, thank you. This subject invokes such strong passions and opinions, that you were actually the first to comment on how I’ve structured my post. It was a difficult one to write, given the complexity and profoundly grave topic, to be balanced as much as possible.
I think you have done a very good post as well. I can see the effort to be as comprehensive as possible. I am not commenting directly on your post because the site requires a separate registration for commenting. I don’t think you have missed anything.
The Supreme Court of India is one of the institutions which has retained my highest respect. And when it overturns a HC order, it is certainly worth deep thought. As you can see from the comment thread above, I have also gravitated towards supporting the SC’s decision, while understanding the rationale behind the HCs order at the same time.
Mahendra,
Good to know you are feeling better now.
I have no illusions about how long it must have taken you to put this post together. I too had to read several news stories before I could get a fairly clear picture of what was going on.
I wished we could have some direct access to court records online.
Yes, it was a complex case and from reading reports, it appeared to me that both the courts made a sincere effort to protect the woman and her rights.
I am actually happy to see society engaged in a meaningful discussion — however divisive to address the issue of inclusiveness.
Thank you for stopping by at BlogHer and reading my post. Appreciate the comment.
[About the comment policy on BlogHer, I did not realize it was that problematic. I know they have a registration policy to track traffic/readers, but I thought it was fairly simple. Nita signed on to it too.
Anyhow, if it’s too cumbersome, let me know.]
Keep writing.
Snigdha,
SC Judgements are available online here. I spent more than an hour searching for this one, but couldn’t find it as I think it is not online yet.
I too am happy wherever I could find society engaged in meaningful discussion, but I must confess it was a bit rare. As I mentioned in my post, most general public opinion I’ve seen is simply dismissive of the SC judgment. What is heartening is that they are voicing their opinions on this tragedy, meaning they are concerned about this unfortunate girl and her to-be-child, which is a welcome break in the Bollywood-caste-politics-cricket-religion-obsessed nation of ours.
The comment policy is not an issue of cumbersomeness but of principle and willingness. The web has moved to open standards, and most websites allow visitors to choose different authentication mechanisms to avoid spammers. In the blog world, Blogger IDs, Email, and Open ID are usually sufficient for sites to filter out bots and spammers. If each self-hosted blog site started requiring registrations, it would become unwieldy and hence is considered a bad practice. However, I will still relook at BlogHer since I think there are many wonderful women bloggers there like you.
M, just wanted to let you know that I have forwarded your feedback about the comment policy to BlogHer.
Meanwhile, let’s keep writing and discussing