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The Supreme Court recently allowed a 19-year-old girl of Chandigarh — with a mental IN India, a disabled girl child is usually at the receiving end of a lot of contempt and neglect. Women with disabilities have been consistently denied their rights. In a landmark decision, the Supreme Court recently allowed a 19-year-old mentally challenged orphan girl to continue with a pregnancy resulting from a sexual assault. The Punjab and Haryana High Court ruling had earlier ordered medical termination of pregnancy (MTP). Giving the facts of the case, advocate Colin Gonsalves, who had argued for abortion in this case, said that the girl, who was kept at Nari Niketan, Chandigarh, a government institution for destitute women, was raped some time in March, 2009, on the premises by security guards. In May the pregnancy was detected. The media widely reported the rape but no institution or individual came forward in the woman’s support.
A few days later, a four-doctor multi disciplinary medical board was constituted, which included a psychiatrist. It recommended an MTP. The Punjab and Haryana High Court ultimately went on the basis of these reports. The second one concluded that "the continuation of pregnancy in this case can be associated with certain complications, considering her age, mental status and previous surgery. There are increased chances of abortion and foetal distress, and more chances of operative delivery, including anaesthetic complications." Shampa Sengupta, Director of the Sruti Disability Centre in Kolkata, says that if the woman wants to keep the baby, she should be allowed to do so. "We as civil society must take the responsibility of supporting her. How can we forget the UN Rights of Persons with Disabilities Convention?" she asks. Sengupta, who has worked on disability for the last 10 years, adds: "How can we say her choice is not valid? Because the doctors say so? If you or I do not consider the doctor’s word as final, why should this young girl? Also, why is it that no one is talking about the rapists and how Nari Niketan came to have male employees?" "The SC judgment has focussed more on pro-life arguments and the rights of the child," states Bhargavi Davar, who heads the Bapu Trust in Pune, an organisation devoted to challenging the mindset and practices of the Indian mental health establishment. Many state institutions for women living with mental disabilities, with the co-operation of families, routinely sterilise, abort or give the child away for adoption without the consent of the mother. Many women’s organisations and NGOs that provide care have an equally problematic custodial outlook towards such persons. In the 1990s at Sirur, Maharashtra, 17 mentally challenged girls below 18 were peremptorily hysterectomised. The state chose to control the girls’ reproductive rights by deploying extreme measures. The professionals involved in that decision neither denied that hysterectomies were done, nor did they perceive them as a violation. They justified them as having been done in the best interests of the girls. Dr Anant Phadke from Pune, who filed a Public Interest Litigation (PIL) on the issue, says that the case is still on. In January, 2009, the state filed an affidavit, stating: "Mentally retarded adolescent girls or adult women have no sense of hygiene during menstruation." Shockingly, this is the prime reason given by the government for backing the controversial decision. All that is needed to perform the operation is the consent of the parent/guardian and certification from a psychiatrist and gynaecologist that hysterectomy is needed. Shruti Pandey, a human rights lawyer from Delhi, admits that this is a case that is "so grey". Says Pandey: "To my mind, this case was not about abortion per se, it was about whether the law of this country recognises and protects the agency of a woman to take decisions for her life and body, especially all its nuances when the woman is a person with mental retardation (MR) or any other disability." Clarifies Pandey: "If the SC has said this woman wants to go ahead with the pregnancy, in principle I would support the decision. Every woman has a right to bear children, including women with mental disabilities. But if the court says it is the right of the child to be born and not to be killed, and so the pregnancy must go on, that is hugely problematic. In any case, if the SC says no MTP, I would like to see what support mechanism it relies upon, institutionally, and not merely on the assurances and hyperbole of individuals and NGOs. "I would also like this decision then to lead to the state’s accountability for creating and sustaining comprehensive and reliable support systems for all persons with disabilities, within a rights framework. This is definitely an obligation under Article 12 of the UN Rights of Persons with Disabilities Convention, which India is totally ill-equipped to deliver on, as this case shows." This case indicates
eloquently that the Indian legal framework has to be strengthened a
great deal to bring it in line with international legislation. — WFS
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In
the same month, the Director of the Government Medical College and
Hospital constituted a three-member board comprising a psychiatrist, a
clinical psychologist and a special educator to evaluate the woman’s
mental status. Their report did not suggest anything out of the
ordinary except that "she cries almost daily". The board
found her mental age to be nine years, and placed her in the category
of mild mental retardation.