Mother's Right to Choose

Mother's Right to Choose

Rajeev Dhavan


Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.

What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.

The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.

The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.

This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?

If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.

All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.

For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.

Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.