Volume 6 Issue 4 - August 01, 2009

Right to motherhood - Supreme Court upholds the right of a mentally retarded girl

In a landmark judgement, the Supreme Court overturned a Punjab and Haryana High Court ruling ordering the termination of pregnancy of a mentally retarded girl resulting after rape at a State run shelter. Dorodi Sharma of D.N.I.S. takes a closer look at the story which jolted the conscience of concerned citizens.

India was the 7th country to have ratified U.N.C.R.P.D. It has four Acts that protect the right of people with disabilities and yet it took a feisty lawyer and people rallying behind her to uphold the right to motherhood of a mentally retarded girl. Does being mentally retarded and an orphan take away your rights from you? Or does it automatically qualify those who deem themselves superior to decide what they think is right for a person with disability? These were a few bitter questions that every concerned citizen was forced to contemplate on July 20.

The girl in question is a 19 year old who was raped at a Nari Niketan in Chandigarh that resulted in her pregnancy. The pregnancy, however, was not detected till she was shifted to another shelter home. The Chandigarh administration then filed a P.I.L. to terminate the pregnancy on the strength of an opinion from a medical board which diagnosed her to be mildly mentally retarded and that the concept of motherhood was beyond her understanding and stated there were apprehensions of complications during the pregnancy.

An Amicus Curiae expressed doubts over medical opinion of the board and a new medical board was constituted to analyse the girl’s ability to bear the child and the requirement to terminate her pregnancy. The girl was then diagnosed as having mild to moderate mental retardation. She was capable of going about her daily life activities on her own and understood that she was carrying a child and was looking forward to it. Her physical capacity to bear a child was adequate and no congenital malformation in the foetus was seen. The expert body suggested that she needed a congenial environment and support as her mental capacity was limited and felt that any decision to terminate the pregnancy should be on a holistic approach and so did not recommend an immediate termination.

Surprisingly though, the High Court ruled for immediate termination of the pregnancy. The case did not conform to the requirements of the M.T.P. Act which clearly states that the decision to terminate a pregnancy rests with the mother. The requirement of guardian’s consent is not applicable in this case as the M.T.P. Act itself differentiates and excludes mentally retarded persons from the category of mental illness.

In this case the mother was strongly against abortion. The High Court ignored the spirit behind the M.T.P. Act and the National Trust Act and never even mentioned U.N.C.R.P.D., which clearly states the reproductive right of a person with disability. Tanu Bedi, assisting counsel to Amicus R. S. Cheema and petitioner in person before the Supreme Court for the disabled girl says, “I was very disturbed after the High Court verdict. I was shocked that this could happen in a democratic country.”

By now, Bedi was fighting for her conviction and the defence filed a Special Leave Petition in the Supreme Court and the matter was heard on July 20. The pregnancy, by then, was already in the 20th week. As per the M.T.P. Act, a pregnancy can be terminated only till the 20th week provided other requirements of termination stated in the Act are fulfilled.

Finally, a Bench comprising Chief Justice K.G. Balakrishnan and Justices P. Sathasivam and B.S. Chauhan upheld the girl’s right for motherhood.

The arguments of the prosecution revolved around one point - what would happen to the future of the child, which Bedi felt was baseless.

“They were arguing the future of a child whose very existence in the womb was at stake! The question of future arises after life,” she added.

Javed Abidi, Convenor, Disabled Rights Group who spoke for the girl said, “Concerns about the child’s future cannot be a ground for abortion. Does it mean that we should kill all orphaned children?”

“The prosecution was worried that no N.G.O. has come forward to help the would be mother. But did the administration try to create awareness about the case? It is only now when the matter reached the Supreme Court that people were made aware of the case.” A fact which can well be believed as now the National Trust and Parivaar have come forward to take care of the girl.

The will of the administration to actually help the girl has come under cloud considering the fact that no disability activists were consulted on the issue.

“Let’s not forget that the girl was raped at a State run shelter and it is the State’s responsibility to take care of her and her child. Abortion against the girl’s wish was like adding insult to injury,” Bedi said.

“If we do not have systems to take care of such cases, it is high time we create one,” added Abidi.

The judgement hopefully will mark an end to the ostrich like attitude of the State, everytime a disabled person’s right is encroached upon.

“The termination of pregnancy in a woman’s body cannot and should not be without want of the woman irrespective of any disability. Life has a lot to offer and disability is not to be looked down upon as a disadvantage or a lesser life. Nobody is less than anybody else and neither are their dreams,” says Bedi.

Having Acts, obviously is not enough. There should be a will to implement them. It surely sets precedence for time to come.

But what is worrisome is the thought that there may be hundreds of such cases languishing in State run homes that are being swept under the carpet day in and day out. Unless the time comes when the Supreme Court does not have to intervene to help a disabled person enjoy his or her right, we will need many more such victories and many more feisty minds rallying behind it.

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