“For a woman to become a mother; she needs to be sane"

By:

Anupama Sharma

God gave us a simple life; we made it complex. When society emerged; it became a
necessity to frame a mechanism that would regulate the living and coexistence
of people. Law; is one such mechanism wherein which were framed by the humans
for the humans. Laws, judgments, orders; all are based on logic and rationale;
weighed in terms on reasonability and justifiability. In all this somewhere;
sometimes in the process what is lost are emotions and practicality. Law has
entered our lives in almost every aspect. One such example is a case which this
article talks about.The victim was an orphan, who was abandoned by her family,
when she was just seven years old. After a few years with the Missionaries of
Charity, she went to her new home: the state-run Nari Niketan in Chandigarh,
India. Though she is 19 years old today, she is said to have the IQ equivalent
of a 9 year old. In this state-run institution, she was repeatedly raped by the
staff as a result of which she became pregnant. It
has been reported that the girl is mentally challenged and retarded. Disputes
arose when Chandigarh administration knocked the doors of the court to seek permission
for termination of pregnancy of the woman stating it to be in her best
interest. When argued in the High Court; it appointed a committee to medically
check the girl and submit the report. The report of the First Medical
Board stated that, Continuation of the pregnancy in this case could result in certain
complications considering her age, mental status and a previous surgery. There
are increased chances of abortions, anaemia, hypertension, prematurity, low
birth weight babies, foetal distress and more chances of operative delivery. The
board found her mental age to be that of a nine year old and placed her in the
category of a person suffering from mild mental retardation. Keeping into
consideration these factors; the High court ordered the immediate termination
of pregnancy. However when asked from the woman if she wants to bear a child
she expressed willingness to bear the child. Fighting for the rights of the
woman Supreme Court was taken as the last resort. After checking out the second
medical opinion which says her physical condition is good to bear the child.
The child is not suffering from any deformity. And giving reasoning as deduced
from the abstracts that before
the judgment; Chief Justice Balakrishnan told Ms. Bedi. “We are worried about
her future also because she is an orphan. No NGO is going to look after her. It
is a difficult decision for us.” “We are not in favor of termination of
pregnancy. If there are no further complications to the woman in continuation
of her pregnancy, then why abort a life?” “We are sure that somebody will be in
a position to give protection to the child. Our anxiety is the foetus is
already 19 weeks. The second medical opinion says her physical condition is
good to bear the child. The child is not suffering from any deformity. Nature
will give her biological protection. If somebody is ready to take care of the
child, should we even then order medical termination of pregnancy? Nature will
take care on its own.”Justice Sathasivam told Gupta: “Is it not possible for
the Chandigarh administration to take care of the child? Is it not your
responsibility to protect her?” “We know as a natural mother she will not be
able to take care of the child. But if somebody is ready to look after the
child, then there would not be any problem.” After seeing participation of various
NGO’s the 3-member bench was reluctant to accept any other arguments supporting
her abortion. Acknowledging that if a baby is aborted against her wishes, it
would cause further trauma to the woman, the court ordered that the baby should
be born with “mother under constant care and supervision”. In support of the
arguments favoring her pregnancy was that The Convention
on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol,
which India signed and ratified in 2007, clearly affirms the right of persons with
disabilities to a family and parenthood for which state parties are duty bound to
provide the necessary assistance and resources literal reading of the amended
Medical Termination of Pregnancy (MTP) Act, 1971* wherein the consent of a
mentally retarded adult woman is essential for termination of her pregnancy
before 20 weeks. What could be inferred from this decision is that laws are the
guiding forces of one’s life.

If we analyze and look at the judgment from a layman’s point of view; there are
many points to be considered: the fundamental question that stands before is
that who will take care of the woman? Which NGO; which human right activist gave
the guarantee of coming forward and taking the responsibility of the mother and
the child? Let’s not forget that it was only in the government run home where
she was raped by the workers who were supposed to take care of her. Writing on
paper and applying the relevant sections of the law are simple things but the
judiciary also has to keep in mind the practicality of its decisions. By upholding
the fundamental right to life and allowing her to continue with her pregnancy,
the court thrust upon the government a huge responsibility. It has been found
that the government support which was talked and relied upon has remained only
on paper. In such a scenario it would be a yet another defeat on the faces of
the activists; civil society, judiciary and the government. How can a women
unable to care for herself be expected to care for her child? Would she able to
bear the pains of pregnancy which even normal women find it difficult to bear?
What if she losses her life? What about the proper care of the baby? What if
due to lack of care the child develops some complications or illness? Will this
not add to the miseries of the mother and the other people around her?  It is all accepted that the foetus is now of
19 weeks and every woman should have the pregnancy rights and the woman in the
present case has mild mental retardation and is fit to bear the child. But what
about the insecurity, need of immense care and protection required for the
woman? Fighting today on the basis of rights and laws we might win and talk
about her right to live and make decision in this civil society but in the end
the question remains that ‘where did the society go when the same woman was
raped by her so called ‘protectors’ and where did her decision, her consent go
when she conceived the child.?’ Thus, not every time should a judgment be given
on the basis of laws alone. Beside laws the practicality of the situation ant
the principles of equity and good consciousness.  Decisions cannot always be given on the principles
of law and logic contained in the books instead. It is at times necessary to
think out of the box.