Does a woman with intellectual disability have no right to become mother? asks Bombay High Court

Mumbai: The Bombay High Court on Wednesday questioned whether a woman with intellectual disability has no right to become a mother.

A division bench of Justices R V Ghuge and Rajesh Patil was hearing a petition filed by a 27-year-old woman's father, seeking permission for medical termination of her 21-week pregnancy on the ground that she was of a mentally unsound mind and unmarried.

The man in his plea submitted that his daughter wanted to continue the pregnancy.

The bench had last week directed that the woman be examined by a medical board at the state-run JJ Hospital in Mumbai.

As per the report submitted by the medical board on Wednesday, the woman is not mentally unsound or ill, but was diagnosed with borderline intellectual disability with an IQ of 75 per cent.

The bench noted that the woman's parents had not made her go through any psychological counselling or treatment, but only kept her on medication since 2011.

The medical board's report said there were no abnormalities or anomalies in the foetus and the woman was medically fit for continuation of the pregnancy.

The report, however, also said that termination of the pregnancy could be done.

Additional government pleader Prachi Tatke submitted to the court that consent of the pregnant woman is of paramount importance in such matters.

The bench took note of the fact that the medical board report has clearly stated the woman is not mentally disabled or of an unsound mind.

"The observation (in the report) is that she has below average intelligence. Nobody can be super intelligent. We are all human beings and everybody has different levels of intelligence," the court said.

"Just because she has below average intelligence, does she have no right to be a mother? If we say that persons with below average intelligence do not have the right to be parents, it would be against the law," the HC said.

As per provisions of the Medical Termination of Pregnancy Act, a pregnancy beyond the 20-week gestation period is allowed in cases where the woman is mentally ill, it said.

"Borderline case cannot be said to be a mental disorder. She (the pregnant woman in the present case) has not been declared as mentally ill. It is only a borderline case of intellectual functioning," the bench said.

The advocate of the petitioner informed the HC that the woman has now disclosed to her parents the identity of the man with whom she is in a relationship and who was responsible for the pregnancy.

The court then asked the woman's parents to meet the man and interact with him to see if he was willing to marry her.

"As parents, take the initiative and talk to the man. They are both adults. It is not an offence," the court said.

The parents adopted the woman when she was five-month-old infant, and must now do their duty as parents, it said.

The court posted the matter for further hearing on January 13.