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 carry on 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 the security guards. In May 2009, the pregnancy was detected. The media widely reported the rape but no institution or individual came forward in the woman’s support. 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 also cries almost daily”. The board found her mental age to be nine years and placed her in the category of mild mental retardation. 

Complications
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... pre-maturity... foetal distress and more chances of operative delivery including anaesthetic complications.” The committees concluded that the woman “has adequate physical capacity to bear and raise the child but that her mental health can be further affected by the stress of bearing and raising her child.”

This case thus raised fundamental issues relating to consent and to the support required while assessing consent. Eventually most mentally challenged women will, if properly supported, be able to indicate whether they wish to abort the pregnancy or proceed with it, concludes Gonsalves.

Pro-life arguments
“The SC judgment has focused 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.

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 or any other disability.”

Legally, this case showed that the Medical Termination Of Pregnancy Act does not deal with access to abortion of women with mental retardation, and that it wrongly distinguishes between women with mental retardation and mental illness, leaving the former out totally.

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 child to be born/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.