Volume 6 Issue 7 - September 15, 2009

Supreme Court judgement out on Right to Motherhood of mentally retarded

D.N.I.S. News Network, India: In July, by way of an interim order, the Supreme Court of India upheld the right to motherhood of a mentally retarded girl who was raped at a government run shelter. The detailed judgement has now been released.

D.N.I.S. had earlier reported about the case which made headlines in July and had forced the judiciary and the country to sit up and take notice of the States apathy towards people with mental disabilities. Not only did the State fail to protect the girl, it also tried to terminate the pregnancy against her wishes. It was only because of determined efforts of a young lawyer, Tanu Bedi and support from the disability sector that justice was finally delivered.

The judgement states that there were mainly two considerations behind the final order. The first consideration was the fact that the Medical Termination of Pregnancy Act (M.T.P.) clearly mentions that consent of the woman is an essential condition for abortion, if the woman is an adult and does not have any mental illness. In this case, the woman in question was against the termination. The bench did not agree with the fact that that the High Court had blurred the difference between mental illness and mental retardation to support its decision for termination. It went on to say that the Court cannot disregard a mentally retarded persons personal autonomy to exercise their reproductive rights.

The second consideration was that even if it was assumed that she was not in a position to make an informed decision, termination was not in her best interest as she was already in her 19th week of pregnancy.

However, the society at large still has not woken up to recognise the sexual and reproductive rights of people with mental retardation. There was plenty of outrage at the Supreme Court's decision. Many questioned whether courts were the place to decide such moral and ethical cases. They also speculated about the future of the child. The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Mental Disabilities has offered to take care of the girl and her baby. They have offered to put her in an independent home, either in Bangalore or closer to Chandigarh.

The biggest obstacle that a disabled person faces is not the disability but societys perception towards it, said Bedi.

In fact when this case made headlines, everybody was talking about retardation, disability and abortion but no one even bothered about what the girl wanted, she added.

Recently, when Tinku Ray, a journalist from B.B.C. went to meet the girl, who now stays in a different government shelter home in Chandigarh, she appeared to be looking forward to her baby due in December.

Click here for full text of Supreme Courts judgement (Word - 101 KB)
Click here for B.B.C.s story

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