Chandigarh Rape case - The Right to Abort Vs. The Right to Give Birth
Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.
The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman�s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.
In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.
A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that �she also cries almost daily�. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:
�2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.
3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.
4. 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 abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed.
This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.
5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.
6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.
7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]�.
For some reason, the High Court decided to appoint yet another Committee consisting of three doctors including a psychiatrist and appointed a judge to be the coordinator of the Committee.
This Board answered the questions of the Court in the following manner:
(i) the mental condition of the retardee She suffers from mild moderate mental retardation
(ii) her mental and physical condition and ability for self-sustenance
A case of Mild to moderate Mental Retardation, Pregnant: Single live foetus corresponding to 13 weeks 3 days +/- 2 weeks, postoperative scars for spinal surgery, HbsAG positive
Her mental status affects her ability for independent socio-occupational functioning and self-sustenance. She would need supervision and assistance.
(iii) her understanding about the distinction between the child born out of and outside the wedlock as well as the social connotations attached thereto
As per her mental status, she is incapable of making the distinctions between a child born before or after marriage or outside the wedlock and is unable to understand the social connotations attached thereto.
(iv)her capability to acknowledge the present and consequences of her own future and that of the child she is bearing.
She knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences of her own future and that of the child she is bearing.
(v) her mental and physical capacity to bear and raise a child
She is a young primigravida with abnormalities of gait and spinal deformity and Hepatitis B surface antigen positive status. However, she has adequate physical capacity to bear and raise a child.
She is a case of mild to moderate mental retardation which often limits the mental capacity to bear and raise a child in the absence of adequate social support and supervision.
(vi) her perception about bringing up a child and the role of an ideal mother
She has grossly limited perception about bringing up a child and the role of an ideal mother.
(vii) does she believe that she has been impregnated through un-volunteered sex?
She has a limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.
(viii) is she upset and/or anguished on account of the pregnancy alleged to have been caused by way of rape/un-willing sex?
She has no particular emotions on account of the pregnancy alleged to have been caused by way of rape/un-willing sex. She is happy with the idea that she has a baby insider her and looks forward to seeing the same.
(ix) is there any risk of injury to the physical or mental health of the victim on account of her present foreseeable environment?
Her mental environment of pregnancy does not pose any particular risk of injury to the physical health of the victim. Her mental health can be further affected by the stress of bearing and raising a child.
Her external environment in terms of her place of stay and the support available thereof is difficult to comment because of our lack of familiarity with the same. She definitely needs a congenial and supportive environment for her as well as for the safety of the pregnancy.
(x) is there any possibility of exerting undue influence through any means on the decision-making capability of the victim?
Her mental state indicates high suggestibility because of her reliance on rote memory and imitative behaviour for learning. Being highly suggestible her decision making can be easily influenced.
(xi) Do the over-all surroundings provide reasonable space to the victim to indulge in independent thinking process and take firm decisions on the issues vital to her life prospectus?
We are not familiar with her overall surroundings, hence unable to comment.
(xii) what is the possible nature of the major spinal surgery alleged to have been undergone by the victim during her childhood? Does it directly or indirectly relate to the bony abnormalities of the victim? Can such abnormalities have a genetic basis to be inherited by the baby?
As per the neurosurgeon, spinal surgery during childhood could have been due to neural tube defect or spinal cord tumour. This could have been confirmed by MRI tests, but the same could not be carried through as those were considered to be potentially hazardous for the foetus. There is no history/records available for the spinal surgery, hence the safety profile issues relevant for the patient undergoing MRI like the possibility of use of any metal screws to fix the spine wherein MRI can be hazardous cannot be definitely commented upon in this case. The nueral tube defect in the patient can lead to an increased chance of neural tube defect in the baby. However, these defects ca be detected by blood tests of the mother and ultrasound. Presence of neural tube defect in the parent is not an indication for termination of pregnancy. It is not possible to comment on the inheritance of spinal cord tumours without knowing the exact nature of the tumuor.
(xiii) is there a genuine possibility of certain complications like chances of abortion, anaemia, hyper-tension, prematurity, low birth weight baby, foetal distress, including chances of anaesthetic complications, if the victim in the present case, is permitted to carry on the pregnancy?
The possibility of complications like abortion, hyper-tension, prematurity, low birth weight baby and foetal distress are similar to any pregnancy in a woman of this age group.
Due to the spinal abnormality and gait defect she has a higher chance of operative delivery and associated anaesthetic complications. Spinal and gait abnormalities are not an indication for termination of pregnancy.
Pregnancy in women with Hepatits B surface antigen positive status is usually uneventful. The prenatal transmission from mother to infant can be prevented by giving immunoprophylaxis to the neonate. Acute or chronic Hepatitis B infection during pregnancy is not an indication for termination of pregnancy.
(xiv) What can be the most prudent course to be followed in the best interest of the victim?
Her physical status poses no major physical contraindications to continue the pregnancy. The health of foetus can be monitored for any major congenital defects. Her mental state indicates limited mental capacity (intellectual, social adaptive and emotional capacity) to bear and raise the child. Social support and care for both the mother and the child is another crucial component. Therefore, any decision that is taken keeping her best interests as well as her unborn child has to be based on the holistic assessment of physical, psychological and social parameters.
The Board however, was not able to take a decision and placed the onus on the Court.
The Court relied upon the report of the psychiatrist which is, inter alia, as under:
�She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succor and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the �bhaiya�) (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reflected by her anguish at a preferred suit being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof.
Conclusion:- Clinically, she meets the psychiatric diagnosis of Mild to Moderate Mental Retardation�
In addition to this, the observation of a social worker who interacted with the woman and who found that the desire to have a child was articulated in a manner like a child wanting a toy or brother to play with. Looking at the physical condition of the mother including the spinal deformity and the neural tube defect, then considering the mental capacity of the mother, the social conditions and surrounding environment, the financial conditions of the woman, the lack of family or social support and the fact that the woman would be once again at the mercy of the dismal government institutions; on the basis of the preponderance of evidence the Court said that �the victim cannot be said to have consented for retention of the pregnancy� and that she �deserves to be liberated from this agonizing responsibility which has been forced upon her�. In conclusion the Court said � we have no reason to doubt that the continuation of the pregnancy shall constitute a grave injury and may lead to more deterioration in the mental health of the victim�. Accordingly, medical termination of pregnancy was ordered.
Article 6 requires a state to take measures to ensure that women with disabilities enjoy all human rights and fundamental freedoms and take appropriate measures to ensure the full development, advancement and empowerment of women. Article 12 of the UN Convention on the Rights of Persons with Disabilities, recognizes that persons with disabilities enjoy legal capacity on equal basis with others in all aspects of life and requires the state to take appropriate measures to provided access by persons with disabilities to the support they may require in exercising their legal capacity. Article 23 recognizes the rights of the persons with disabilities to decide freely regarding children. The Article also recognizes that a child should not be separated from her parents against her will and that the state is required to provide alternative care in circumstances where the woman is unable to care for the child. State is also required to vendor assistance to persons with disabilities in the performance of their child rearing responsibilities.
Despite these provisions even after the rape was reported widely in the media and the case proceeded on a day-to-day basis no institution came to the assistance of the woman. She was provided no assistance whatsoever. She was given no support at any time.
A mentally challenged woman under the UNCRPD has a right to a multiple choice. She has a right to abort. She has a right to continue with pregnancy. In taking this decision she has to be supported and assisted by the State. That support and assistance must come much prior to the 20 week cut-off date beyond which abortions are not legal save in situations where the life of the mother is in jeopardy. That support and assistance not being given it is hazardous to guess what her intention really was. In the tragic facts of this case nobody really knows. If properly assisted and supported and properly counseled as to the continuance of the pregnancy and the meaning of child-birth and the rearing of a child with state support, the woman may have been able to take an informed decision to abort or to continue with the pregnancy.
The Punjab and Haryana High Court ultimately went on the basis of the reports of the numerous committees which 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, �she 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 and assisted, be able to indicate consent to either abort or to proceed with the pregnancy.
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