Can a raped, mentally challenged girl raise a child?
By snigdhasen on August 06, 2009
BlogHer Original Post
A 9-year-old mind in an adult's body: Can she raise a child?
A legal battle in India over the rights of a mentally challenged woman who had been raped in a government-run home for destitute women and is now pregnant, has torn the nation. Does a 19-year-old with the IQ of a nine-year-old have the right or the ability to make a decision about her unborn child conceived through rape? Can rights come without responsibilities?
Unfortunately, the case is not that simple. The girl, at this point, has little choice but to wait for the country to decide her fate. The Supreme Court of India recently ruled that she be allowed to carry her pregnancy to the full term, kicking off a series of heart-wrenching debates.
The Case: This 19-year-old orphan was living in a state-run Nari Niketan (home for destitute women) in northwestern Chandigarh. In May, another state-run facility where she was moved determined that she was pregnant. Subsequent tests confirmed she had been raped. (Three-four employees of the home have been arrested so far. It is suspected that she may have been raped repeatedly in both the state-run shelters she lived in). The Chandigarh administration then approached the Punjab and Haryana High Court for permission to terminate the pregnancy. The court asked a panel of four doctors to determine the condition of the girl and her ability to give birth and raise a child. The panel found that the girl's mental age was no more than a 9-year-old's but she was physically capable of bearing the child; she did not clearly understand the concept or consequences of conception, child-bearing and motherhood outside wedlock, but seemed excited about having a baby; she did not ask for the sex (rape) and did not like it. The panel, however, stopped short of suggesting a course of action, remarking that "any decision that is taken keeping her best interests as well as of her unborn child has to be based on the holistic assessment of physical, psychological and social parameters”.
In response to the court’s question about her understanding of the distinction between a child born out of and outside the wedlock as well as the social connotations attached thereto, the panel said, “As per her mental status, she is incapable of making the distinctions between a child born before or after marriage or outside the wedlock and is unable to understand the connotations attached thereto”. [...] “She knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences of her own future and that of the child she is bearing. She is a case of mild to moderate mental retardation which often limits the mental capacity to bear and raise a child in the absence of adequate social support and supervision” the panel replied. [Source: Indian Express]
The court also appointed three advocate generals to study the case. Two of them voted in favor of the abortion, one against. The high court ruled in July that the pregnancy be terminated immediately. In its judgment, the court observed:
We find that the victim is neither intellectually nor on social, personal, financial or family fronts able to raise a child. We are satisfied with the reports that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre and post-delivery implications. Asking her to continue with the pregnancy and, thereafter, raise the child would be a travesty of justice and a permanent addition to her miseries. The ‘toy’ with which she wants to play would want her to invest hugely which she is incapable of”.
[...] “We cannot also overlook the fact that if allowed to be born, the child’s own life and future prospects may be highly disappointing. The grooming and education of the child would again be at the mercy of the government-run/aided institutions...”
A New Delhi-based lawyer challenged the high court decision in the Supreme Court, arguing that it was the girl's right to give birth to the child if she so desired: her mental handicap cannot be an excuse. After hearing what appears to be a cocktail of emotional and factual arguments, by July-end -- as the girl came close to the crucial 20-week mark beyond which abortion is illegal in India -- the Supreme Court stayed the high court decision, ruling against terminating the pregnancy even while observing that care and supervision had to be assured for both the mother and child. Some non-profit organizations have offered to take care of them. The court is yet to give a final detailed ruling on how the care is to be handled. In its stay order, the Supreme Court observed:
The foetus is fine and does not appear to suffer from any deformity. We cannot say for sure whether the child will be mentally retarded. The pregnancy is in an advanced stage. Moreover, if someone agrees to take care of the mother through the pregnancy and the child when it is born, then why should she be deprived of motherhood.
The Debate: Why is this case so complicated?
First, the law. According to India's abortion laws* (note below), a pregnancy cannot be terminated without the consent of the woman. However, if the woman is a minor or mentally challenged such that she cannot function as an adult, her guardian would have to consent to the termination.
In this case, all provisions of the law have been put to the test:
a) She is physically an adult and wants to keep the pregnancy. But, she is mentally a minor and needs guardianship and supervision.
b) She has no blood relatives or a social circle to support her. She is incapable of supporting and taking care of herself or her child.
c) Her legal guardian is the state and the state-run shelters she lived in. Now that the very shelter meant to take care of her abused and raped her, does its consent count anymore? That's probably the reason why the Chandigarh administration took the matter to the court.
The case has divided people along the lines of what constitutes a fundamental right. Disability rights groups have come out in favor of the judgment, saying it was a huge step in making our society more inclusive. Those against the ruling see this as a burden imposed on an innocent, abused, abandoned girl, especially one who does not understand what she's asking for.
Their anger is not without reason. As we had discussed in an earlier post about another abortion legal battle in India, we simply do not have adequate physical and social infrastructure to support people with disabilities. We are not a fully accessible country, both in terms of physical facilities and social attitudes. Abuse and neglect in state-run shelters are rampant.
As lawyers in favor of abortion argued, we need to look at the case from the perspective of ground realities and not social ideals. While lambasting the state administration for running abusive and negligent shelters and ordering "sweeping" reforms, the high court, in its reply to an advocate general who opposed the termination, noted that social change does not happen in a day and a person's life cannot be held hostage to it:
“It requires populism to say that the case in hand be tested and tried and be made an example to awaken the society to change its stereotyped perceptions and shed its prejudices. Suffice it to add here that misconceptions and prejudices do not grown in a day’s span nor can they be eliminated within a night. Would it be not more poetic justice if we, notwithstanding our profound belief, are swayed by the emotional hue and cry made on behalf of a physically grown but mentally weak person who does not understand the consequences of what she is asking for, and allow that unborn child to enter this world even with the possible risk of physical deformities and an inadequate mother, or should we allow the victim to liberate herself from the forced physical, mental, moral and social responsibility which she is neither capable of shouldering nor aware of as to how has she been burdened with it ?”
On the other hand, those against the termination argued that as a society we cannot keep putting off responsibilities on the basis of "ground realities" and make no attempt to change them. Others argued that a disability -- or any other perceived notion of inadequacy -- cannot be used to stop someone from being a mother. Also, India's laws provide for care of mentally challenged persons, so there is no reason she should not be guaranteed help.
I understand the high court's perspective: It called for changes in welfare programs but decided not to burden the girl.
I understand the Supreme Court's view too: They too were worried about the girl's welfare, but once convinced that she could have access to care, they did not see any reason to deny her what they perceived as her fundamental right, something she herself wanted.
I think both courts argued and acted in a way they thought would be most beneficial to the victim and the society as a whole.
The girl still has several weeks to go in her pregnancy. A lot can change. Some doctors fear she will be unable to cope when more serious changes to her body start setting in. The Supreme Court feels Nature and biology will help her.
Either way, if the country can deliver on both the courts' judgments -- provide care for the girl and her child, as well as push for reforms in the state-run welfare sector, we would have taken a huge leap toward establishing a more equal, human and efficient society.
[* The Medical Termination of Pregnancy Act, 1971 refers to the Indian Lunacy Act, 1912. The Lunacy Act has been replaced by the Mental Health Act, 1987]
Prerna - at I Love Life...So I Explore does not agree with the ruling
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