JOIN USThe Supreme Court’s decision to allow a 20-year-old mentally retarded orphan to have her child must be applauded. It recognised her right to motherhood for it is a fundamental right of all human beings to procreate. It treated her not as an ‘object’ but as an ‘equal subject’ before the law and recognised her right to autonomy, to control her own body. This undoubtedly is a landmark decision. A precedent has been set to respect the inherent dignity of the mentally disabled.
Debate raged over whether it was fair for the unborn child to be brought into this world with a preconceived stigma. Whether it would have a disadvantaged future with its mentally retarded mother and many more such concerns were amplified publicly. People were reacting to the tempest of the moment and in this cacophony the egregious crime of rape was eclipsed. She was brutally raped by the security guards assigned to protect her.
In another case, a mentally retarded teenaged girl was married to a 55-year-old man whose wife deserted him. Her father transferred his ‘financial burden’ to the new husband and in doing so, he has abetted sexual exploitation of his daughter. Was she given the freedom of choice to remain single or even to choose her husband?
When she becomes pregnant, will civil society demand that this mentally disabled mother abort her unborn child? There is a general sense of resignation, the world over that retarded children and women being sexually abused is one of life’s inevitable tragic situations.
The mentally retarded sexual victims are often unable to stop the abuse, due to lack of understanding, fear, coercion or simply just to be accepted. But all the same, there are residual harmful psychological, physical and behavioural effects.
Rapists take advantage of the fact that courts have a prejudiced view on the credibility of the mentally retarded witness. Au contraire studies show that many victims are indeed able to comprehend and are able to relate the events of the crime. Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person.
The Convention on the Rights of Persons with Disabilities has raised concern that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. And it seeks to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.
People with mental retardation have the same basic legal, civil and human rights as normal people. Justice demands that these vulnerable people be given extra legal protection to help them exercise their basic human rights. They should be able to enjoy legal capacity on equal basis as other citizens.
This judgement must be celebrated and upheld as a fair delivery of justice. For it has not only recognised the basic human rights of the mentally retarded girl, it has also recognised the inherent right to life of the unborn child.
(The writer is a legal consultant)