Inside Story
Should pregnancy of mentally challenged rape victim be ended? SC will decide today
 New Delhi, Tue Jul 21 2009

Should a pregnant, mentally challenged woman who was raped be allowed to exercise her right to motherhood or should her unborn child be aborted as she conceived after being raped?

Faced with this question, the Supreme Court today stayed the July 17 order of the Punjab and Haryana High Court which had ordered immediate termination of the woman’s pregnancy.

Moved by the plight of this woman — she is an orphan who was raped, allegedly by the staff of a Nari Niketan in Chandigarh, and is now in her 20th week of pregnancy — the bench of Chief Justice K G Balakrishnan and Justice P Sathasivam found it difficult to take an immediate decision on her case.

Seeking to know her mental and physical capabilities, the bench asked about the woman’s age and intelligence level.

After the expiry of the 20th week of pregnancy, it is illegal to abort a foetus as per provisions of the Medical Termination of Pregnancy Act.

Realising that time was running out for the woman, the bench issued notice to the Chandigarh administration and posted the matter for a final decision tomorrow.

Advocate Tanu Bedi, who argued the case on behalf of the expecting woman, said she was 19 to 20-years-old but had the IQ of a nine-year-old. This made the bench observe: “She may be an adult but has got the intelligence of a nine-year-old.”

To Bedi’s argument that India is a pro-life country and unless a mother’s express consent is there, termination of pregnancy is illegal, the CJI observed, “with a mind of a nine-year-old, how will she react to situations especially after the birth, is not known.” “And whether the child too be mentally retarded?” asked the bench.

Bedi defended the rights of a mentally challenged woman, supporting her case with two reports from a panel of doctors constituted by the Punjab and Haryana HC in coming to the decision.

She reminded the bench that India was a signatory to the 2006 UN convention which recognizes rights of mentally challenged persons.

Finding it difficult to agree with the lawyer’s submissions, the CJI remarked: “All this may be the aspirations of a nine-year-old. But then she may have so many other aspirations too. We have to look at the overall situation considering her position and that of a child who will be born.”

On perusing the strong arguments by Bedi, the bench said “mental retardation could not be a ground for termination of pregnancy.”

Following detection of pregnancy, the Chandigarh administration had earlier came to the conclusion that in her best interest, the woman, now approaching the critical 20th week of pregnancy, needed to undergo a medical abortion. The administration moved the Punjab and Haryana High Court seeking a nod for the decision. On July 17, the High Court gave the administration the go-ahead to have the pregnancy medically terminated.

Mentally challenged rape victim: CJI says why abort child
New Delhi, Wed Jul 22 2009

The Supreme Court on Tuesday allowed a mentally challenged woman who had conceived after being raped in a Nari Niketan in Chandigarh, to give birth to her baby.

A bench headed by Chief Justice K G Balakrishnan stayed the Punjab and Haryana High Court decision of July 17, 2009 where the Chandigarh administration was directed to abort her foetus immediately. “We stay the operation of the High Court order,” the court observed.

The woman, now residing in another state-run shelter home, is in her 20th week of pregnancy. After the expiry of this week, medical termination of pregnancy would be illegal as per the law.

“We are sure she will not be in a position to give protection or post-natal care to the child. But that can be taken care of by somebody else,” noted the CJI.

After being satisfied that several national-level NGOs had come forward to take responsibility of the child, the three-member bench was reluctant to accept any other arguments supporting her abortion.

“If there are no further complications to the woman in continuation of her pregnancy, then why abort a life?” the CJI posed this query to UT administration counsel Anupam Gupta and to the counsel for one social worker, senior advocate Colin Gonsalves, who were pressing for abortion.

Advocate Tanu Bedi, who argued on behalf of the woman, submitted, “It would be a travesty of justice if a mother has to come to the highest court of the land to seek permission to give birth to her own child.”

The bench, noting that “nature has its own way of providing protection”, put several queries to psychologist Dr Paramleen Kaur and a gynaecologist who was a part of the panel of PGI doctors, which had examined the woman earlier. Both the doctors were present in the court.

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”.