Supreme Court Against Abortion For Mentally Challenged Rape Victim
New Delhi: In a significant judgement, the Supreme Court Tuesday stayed a Punjab and Haryana High Court ruling that had allowed authorities to force a mentally challenged rape victim to undergo an abortion. A bench of Chief Justice K.G. Balakrishnan scrapped a July 17 verdict of the high court ordering medical termination of the pregnancy of 19-year-old mentally challenged, unwed and orphan girl Radha (name changed), raped by a staff of the government shelter home in Chandigarh. The bench, which also included Justice P. Sathasivam and Justice B.S. Chauhan said its “detailed reasoned order” would follow later. The bench asked authorities to seek medical opinion if the woman does not run any risk, greater that what a normal pregnant woman has, to her own life and her unborn child in the process of carrying the pregnancy and subsequently in delivering the baby. It cast aside the objection to the prospect of the mentally challenged girl delivering the baby when she is not able to take care of herself. “The nature has its own methodology,” it said. The bench made it clear that in its detailed order, expected in a day or two, it would cast the responsibility of ensuring the welfare of the girl and her child on the Chandigarh administration, in whose custody she was when she was raped. Counsel Anupam Gupta, appearing for Chandigarh administration, told the bench that the girl, whose mental age is barely nine years, might become her own child’s enemy and pose a grave danger to it and will face constant inconveniences in daily chores like feeding the baby and changing nappies. Tanu Bedi, who approached the apex court on behalf of the rape victim, said: “For those reasons, you want to kill the child now.” As Gupta and senior counsel Collin Gonsalves, appearing for the Chandigarh administration, told the court that it might be a traumatic experience for the girl to bring up the child and it might affect her mental health, Chief Justice Balakrishnan turned the argument on its head. He said: “By the same logic, as the girl knows that she is going to have the baby and if it is aborted without her consent, she might face trauma impairing her mental health.” Living in a government-run orphanage for women in Chandigarh, Radha became pregnant after a peon of the orphanage raped her. When pregnancy was detected, the Chandigarh administration got her physical and mental condition evaluated medically and came to the conclusion that in her best interest, Radha, now approaching the critical 20th week of pregnancy, needs to have it medically aborted. The administration sought the Punjab and Haryana High Court’ approval to the decision. The high court gave its green signal July 17. A group of young lawyers from Chandigarh approached the apex court Monday, challenging the move. Bedi argued the country has no law which stops a woman from becoming a mother. She added that the fact that she is mentally challenged is not any legal ineligibility in becoming a mother.’
Is Hysterectomy The Final Solution?
‘The state government is backing a move by which mentally challenged women will be made to undergo uterus removal surgery. While the Maharashtra government defends its stance by saying it will help these women, activists term the move inhuman. DNA goes to the root of this debate… A ripple of giggles sets off as a bunch of 12 adolescent girls poring over their needlework at the SPJ Sadhana School, Peddar Road, are asked to talk about a “very private matter” by their vice-principal, Radhike Khanna. The girls, all over 16 years, are mentally challenged and have an intelligence quotient (IQ) of below 50. The class will soon head for a ten-day excursion to Punjab. Khanna asks the girls whether, on the trip, they will be able to take care of themselves and maintain personal hygiene if they start menstruating. Even before Khanna can finish her question, pat come the replies listing how they will pack sanitary napkins, old newspapers, and extra undergarments. “We know how to take care of ourselves,” lisps Pooja (name changed). But if the government has its way, girls like Pooja and others who are housed in the state’s five mental institutions would be made to undergo a hysterectomy. According to the government, ‘mentally retarded adolescent girls or adult women during menstruation have no sense of hygiene.’ Hysterectomy is the surgical removal of the uterus and, sometimes, the ovaries. The operation stops menstruation and the patient can never bear children. But it can also cause hormonal imbalances. Labelling the benchmark of IQ below 50 as “absurd”, Khanna, who has a doctorate in special education and has been dealing with mentally challenged students for over 20 years, says patients with IQ as low as 20 can be taught how to maintain hygiene. “Even with profoundly retarded girls, who have no sensation, we recommend the use of diapers,” she says. “The mental illness can get compounded with surgical intervention like hysterectomy, which often causes hormonal imbalance leading to mood swings.” According to the government’s affidavit submitted in the Bombay High Court, five government-run mental institutions currently house 330 mentally retarded girls and women. The government’s reasons for backing hysterectomies are that inmates cannot maintain hygiene and are uncooperative with the care-givers. In 1994, when hysterectomies were performed on 17 girls in the Shirur home, administrative convenience weighed more than inmates’ rights. But the confidence brimming in the students of Sadhana School belies the government’s claim that mentally challenged girls cannot maintain hygiene. The five government institutions are not even over-burdened: they have 470 inmates against a capacity of 560. “Each mentally challenged person has different levels of understanding. A blanket benchmark of IQ below 50 for conducting a hysterectomy is absurd,” says Vandana Gopalkrishnan, co-founder of The Banyan, a Chennai-based NGO working with the mentally ill.’ From