Wednesday, August 26, 2009

Abortion for the mentally retarded – the outer limit of patient autonomy

On 17.7.2009, a Division Bench of the Punjab & Haryana High Court, comprising of Justice Surya Kant and Augustine George Masih decided a case ordering the termination of the pregnancy of a rape victim, who was mentally retarded person and an orphan at that, staying in a Government Care Home. The judgment is like it has never come in any part of the world. A poignant tale of a girl discarded on road, picked up to be brought up in government run homes. Her mental retardation and inability to protect herself adequately, heightened her vulnerability to be repeatedly raped allegedly by male guards employed at the Home, aided as they were, by an Ayah for money to be ravished in the bathrooms.

The law distinguishes between mentally ill people from a mentally retarded person. The guardian procedures are consequently different: in the former, it would be the Mental Health Act and in the latter, it is the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The National Trust Act establishes a Central Committee at Delhi and Local Committees in every district. The Committees shall have the power to appoint guardians for a mentally retarded person.

The Medical Termination of Pregnancy Act empowers a medical practitioner to terminate pregnancy of a woman whose length of pregnancy is not more than 12 weeks. If the pregnancy is more than 12 weeks and less than 20 weeks, the decision shall be at least by two medical practitioners. In both situations, the MTP could be undertaken, only (i) if the continuance of pregnancy would involve to the life of the pregnant woman or of grave injury to her physical or mental health. Where the pregnancy occurs by rape or a failure of any device or method used by a married woman or her husband for the purpose of limiting the number of children, it may be presumed that there is a grave injury to the mental health, or (ii) there is substantial risk that the child, if allowed to be born, may suffer from physical or mental abnormalities as to be seriously handicapped. No MTP carried out without the consent of the woman and if she is less than 18 years of age or a mentally ill person, without the consent of the guardian. In this case, since the woman was a mentally retarded person (and not mentally ill) and there was no local committee constituted under the National Trust Act, the Chandigarh Administration that was running the Institution where the woman was residing applied to the Court for the termination of pregnancy.

The Court assumed jurisdiction as a patria perens for deciding the question of desirability of MTP. It passed an interim order on 9.6.2009, containing inter alia, direction for constitution of an expert body of doctors for examining the pregnant woman (the Court used only the term 'victim' for the pregnant woman) and report on 13 points that included, the issue of consent of the mentally retarded person, any risk or complications relating to pregnancy and child birth and the most prudent course to be followed in the best interest of the victim. The report was a heart-wrenching record of what the mental condition of the victim, her desire to retain the fetus and deliver the child, the changes occurring to her over a period of time of constant crying, denial of entertainment such as TV viewing, which she was previously accustomed to and her inability to comprehend issues of parenting. Read what the doctor/ psychologist had to say about her:

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 (salwar and kameez) being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof.

The judgment records the victim's point of view, as proffered by the counsel appointed to assist court in the following words: The learned amicus took us through a fine literary odyssey to impress upon us that in her lost world, the victim has now got a ray of hope of having someone as her own and it would be exhibiting gruesome cruelty to deprive her of what she now cherishes to come out of her and make her life meaningful. Besides asserting the right of self-determination for persons with intellectual disabilities, the learned amicus-curiae also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] V. Krishanan vs.G. Rajan @ Madipu Rajan and others, (a case where a minor girl alleged to be 16 had been married without the consent of her parents and when the parents of the girl wanted to terminate the pregnancy, the girl and her 'husband' wanted the continuation of the pregnancy and the Court denied permission to abort and upheld the desire of the girl to carry her pregnancy to full term and deliver the child) and (ii) Mrs. Usha Abraham v. Abraham Jacob (a case where a husband sought for divorce on the ground that the wife was mentally ill, but the court refused reasoning that the woman was only slightly mentally retarded and hence she could perform her marital ob ligations).

The Division Bench posed to themselves the question 'Should we not permit the petitioner - Administration to medically terminate the victim's pregnancy solely on the ground that the victim wants to keep the child as she likes children or should we adopt a holistic approach after taking into consideration several other factors which have a direct bearing on the future of the victim as well as of the foetus in her womb ?' The court examined the physical conditions of the mother ( she had abnormalities of gait and spinal deformity), the mental capacity of the mother ( she had a mental growth of 7 - 8 year old child, with little communication skills of social behaviour) , the report of the social worker who opined that the victim believed a child to a toy that one can play with, the social conditions and surrounding environment, where the girl had been abandoned by her own parents and brought up in shelter homes her 100% financial dependence with no employable skills than carrying out simple orders like clearing a table, dusting under supervision, pealing vegetables and above all, nil family support.

The Bench concluded, 'we find that except her physical ability, the victim is neither intellectually nor on social, personal, financial or family fronts, is able to bear and raise a child. We are satisfied with the reports of the Experts that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre and post delivery implications. The victim, notwithstanding her innocent emotional expressions, is not mentally in a position to bear and raise the child. Asking her to continue with the pregnancy and thereafter raise the child would be a travesty of justice and a permanent addition to her miseries. The "toy" with which she wants to play, would want her to invest hugely which she is incapable of…

We also cannot over-look the fact that if allowed to be born, the child's own life, grooming and future prospects may itself be highly disappointing. There would be no choice but to keep the child in Ashreya (the government home) where the victim is living, in the company of other mentally ill inmates. There shall, thus, be a consistent risk to the innocent life. His mother's own mental age being 7-8 years, the learning process of the child would be highly inadequate. The grooming and education of the child would again be at the mercy of the Government run/aided institutions whose dismal performance or the severely negligent behavioural attitude towards the inmates has already prompted us to issue various reformatory directions and to monitor their implementation in future. If born, the child would not only be deprived of the care and protection of a father, but, on account of the mental handicap of the victim, the mother also…"

Was there a doubt that with such persuasive reasoning, the conclusion could not have been to retain the fetus, but a direction to medically terminate the pregnancy? Like we said at the beginning, there has been no reported case of such complex situation, a woman made pregnant by rape, by an act, she did not understand as a sexual compulsion except that in the process, her best clothes were torn, a woman that is mentally retarded with a mental maturity of a 7 year old girl, a woman that does not have her own family, having been discarded on road and picked up to be brought in a government run welfare home that paradoxically subverted her welfare. Now, the interesting twist is that the Supreme Court reversed this decision and the victim continues to have the child growing in her womb. It is a significant victory for pro-life campaigners. The case for pro-life has powerful arguments, which we will discuss, after the Supreme Court gives its reasoned decision. Even by a reversal of the decision of this case by the Supreme Court, the strength of the logic expounded in the judgment of P & H High Court is not a wee-bit dimmed. It shows a beautiful course of judicial opinions: there is always the other side of the coin and a better wisdom of a higher court!

Now the woman will hopefully (& prayerfully from our part) deliver the child and get her own 'toy' that she bears in rueful pain and expectant ecstasy.


Harchand said...

This case has unique importance, not from the point of due about the plight of the mentally retarded girl but because such a situation/law point never arise earlier, not only in India, but may be in the world over. The pity of the case is that the role of the state in this case. She was under the nose of the state and in their “custody” and under their protection. The state failed in its duty to protect her. In this situation, the state must have come forward to take the responsibility and should have act to create conditions that the girl could give birth to the “unwanted” baby. But unfortunately, it had shamelessly chosen the easy way-out of escapism and finish the issue forever. There is no place for such an arbitrary, immoral, illegal and unacceptable step in the modern welfare state in the 21th century. How and under what law, a state can pray to the court demanding the elimination of a upcoming baby?
I can say as per my knowledge and belief, that there is no law in India, which permits and allows the state in any situation, whatsoever, to act in such a drastic manner for terminating the unwanted pregnancy. Even this is debatable issue that if any court in India is competent under law to order the termination “promptly” and forthwith. Even no time was granted to challenge this Judgment before the appellate court.
However, finally it is life, which won over death. That is last thing in this case.
Let us hope that the state will learn a lesson from it and will behave more responsibly in future with more sound and objective legal opinion from their law officers.

Chandigarh Harchand Singh Batth
27.08.09 Advocate,
Pb. & Hy. H.C. Chd.

Advocate P.R.Jayarajan said...

1. In this case at the outset the State to be blamed for its irresponsibility in protecting the mentally retarded girl. I agree with the views of Mr.Harchand.

2. Second thing, the P & H High Court interalia logically analysed the problems, if the baby is born. But according to me MTP is not the only solution.

3. The Apex Forum shall allow the child to see the world and make the State responsible for its bring up and other welfare aspects, like 'thottil kulandai' (cradle Child) scheme in our Tamil Nadu.

I also join in the prayer for its safe delivery ...

P.R.Jayarajan, M.L.,
Advocate, Author and Editor.

K.Kannan said...
This comment has been removed by the author.
K.Kannan said...

The issue is not who is to be blamed, the government or the rapist. The case grapples with a more serious issue of what obtains primacy - Should the patient/mother always retain the right to decide on the future of fetus about whether to retain it or not, even in case where the mental condition accompanying the consent is suspect?
The woman was in a government run institution and as a guardian for a mentally retarded person, the government certainly had the right to approach the court, in the absence of a local committee, to guide the decision.

Harchand Singh Batth, Advocate, Chandigarh said...

"27. The facts of the present case indeed posed some complex questions before us. While we must commend the counsel for their rigorous argumentation, this case also presents an opportunity to confront some social stereotypes and prejudices that operate to the detriment of mentally retarded persons. Without reference to the present proceedings, we must admit to the fact that even medical experts and judges are unconsciously susceptible to these prejudices. [See generally: Susan Stefan, `Whose Egg is it anyway? Reproductive Rights of Incarcerated, Institutionalized and Incompetent Women', 13 Nova Law Review 405-456 (November 1989)] We have already stressed that persons who are found to be in borderline, mild and moderate forms of mental retardation are capable of living in normal social conditions and do not need the intensive supervision of an institutionalised environment. As in the case before us, institutional upbringing tends to be associated with even more social stigma and the mentally retarded person is denied the opportunity to be exposed to the elements of routine living. For instance, if the victim in the present case had received the care of a family environment, her guardians would have probably made the efforts to train her to avoid unwelcome sexual acts. However, the victim in the present case is an orphan who has lived in an institutional setting all her life and she was in no position to understand or avoid the sexual activity that resulted in her pregnancy. The responsibility of course lies with the State and fact-situations such as those in the present case should alert all of us to the alarming need for improving the administration of the government-run welfare institutions."

From the final Judgement of the S.C.

Harchand Singh Batth, Adv. 31.08.09

SC Vashishth said...

Dear Shri Kannan,

Any Indian parent, family or woman must have preferred an abortion at the first instance for it was a forced pregnancy out of a rape. MTP allows termination on this ground alone!

Its only rights groups who have without understanding that the girl was never assisted properly to make an informed choice, made the issue in favour of life - a life with which they will never be concerned with in future.

Ask those who live with conditions, and more so with such social afflictions, how the life goes for them and what support they receive from the government or from the activists!

Any psychologist can not counsel a client in one or two casual sittings and more so when your client is a girl with intellectual disability. It takes a while to develop rapport before you can actually start communication which the client is capable of comprehending. Evolving Legal Capacity and Rights of those with intellectual disabilities as enshrined in UNCRPD was never a reference point in the instant case.

Today the issue has been debated and a judgement delivered! Tomorrow it will become a case law to be cited in meetings, research findings and conferences and the girl's case becomes a case study on rights of evolving capacity of those experiencing intellectual disabilities! The actual situation of the girl may never come back on the news papers!

While philosophically, all rights activists will go in favour of life, but given the situation the girl was in and looking at the antecedents in the case, where no decision/support could be given and her pregnancy was allowed to reach 20th week indicates sorry state of affairs and that Abortion was the best bet. Punjab and Haryana High Court's decision was perfectly in order but the grounds that they took may not have been legally sound & convincing and hence SC had no option but to opine against the verdict.

I have covered divergent views on this subject on following links:

Thank you for reflecting on this.

SC Vashishth, Advocate-Delhi High Court and Disability Rights Activist

Advocate P.R.Jayarajan said...

Respected Sir,

The first of its kind judgment delivered by the Supreme Court in this case now..

It seems our Apex Court has correctly applied its wisdom and analysed the distinctions of several legal concepts elaborately in this case...

P.R.Jayarajan, M.L.,
Advocate, Author and Editor.

health coaching said...

Good to know about the abortion is a hard one to decide but a retarded child may be the worst sufferer ultimately.

Plastic surgery Beverly Hills said...

Personally I feel that there is no point going ahead to give birth to a retarded child not only because it is going to be hard on the parents but also because it is very hard for the child to cope up with the harsh realities with the handicapped situation.