Saturday, July 18, 2009

Chandigarh Admn v. Nemo: Should a mentally retarted woman be denied the right to keep her pregnancy?

This case was perhaps the first relevant opportunity to apply and test the principles of Naz Foundation for other minorities. But the Punjab and Haryana High Court's judgment is a huge disappointment. You can access the judgment on the Punjab and Haryana High court website . It was delivered by Justice Suryakant on his and Justice Augustine George Masih's behalf on July 17. [CWP No.8760/2009]. A PDF version of the judgment is also available at this site.

The HC declined to accept the plea of the pregnant woman inmate of Nari Niketan, who is mentally retarded, not to abort her pregnancy on the following grounds, which to me, appear bizarre:

A. The women who wish to keep a pregnancy under the MTP Act must know how pregnancies are caused and how a child is born etc. (Paragraphs 18 and 19). My question: Surely, such a ground may be invoked against those ignorant pregnant women, who are not mentally retarded?

B. Paragraphs 20 and 21: Social and financial conditions of the pregnant woman have a bearing on whether she could be allowed to continue the unwanted pregnancy. Will the Court apply the same criteria for non-mentally retarded women?

C.Paragraph 22: Social and family support is crucial for a pregnant woman. The Court's desperate search for an institution which will provide such a support proved futile. Q: Is it an indication of the Court's helplessness or the misfortune of the pregnant woman? I am sure if there had been enough publicity, many institutions or families would have come forward to adopt the child once it is born. After all, the woman has been declared to be physically healthy to bear and raise the child.

D. Paragraph 24: I am unable to find any correlation between the mental age of the mother and the likely inadequacy of the learning process of the child. The Court does not rely on any medical evidence for this assertion. Please read further the same paragraph: If a child does not have a mother or father, does she have no right to be born?

E.Paragraph 25: If there is no consensus or unanimity of the parenting abilities of the mentally retarded parents, why should the Court assume that the victim's abilities will be limited?

F. If Paragraph 28 is correct (medical evidence points to greater probability of mental retardation amongst children of mentally retarded parents), why not advice the Parliament to amend the MTP Act which gives a choice to a mentally retarded pregnant woman to keep her pregnancy, if the guardian gives consent? Did the Court, which acted as a guardian in this case, seek to legislate?

G.Paragraph 29: Did the Court let its prejudices, marked by its pessimistic and defeatist outlook, influence the social acceptability of her rights as a parent?

In a recent case, the Bombay High Court has delivered a landmark decision in favour of a disabled recruit, who faced discrimination at the hands of his employer before joining. [Ranjit Kumar Rajak v. State Bank of India]Readers may well compare this with the Chandigarh Admn. case.

Dilip writes: I agree. The decision has not only a eugenic feel to it but the court seems to have projected its own strong views on the subject onto the victim. See para 30 where the court rejects the contradictory opinion of the expert committee: 'We firmly hold that notwithstanding the ambiguous responses given by the victim to some members of the Expert Body, who have erroneously though bona-fidely believed as if she is keen...'

It reminds me of Oliver Wendell Holmes' judgment in Buck v. Bell where he said:"It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."

5 comments:

How Do said...

if she wants to retain the baby, she should be allowed to.. her being mentally retarded is not a factor in what that child is capable of..

How Do said...

This case presents pregnancy as something that needs to be defended to be continued. On the contrary, it is the termination of pregnancy that should be defended.

We are confusing her ability to parent, with the child's right to survive. We are also assuming, in the same breath, that the child cannot be cared for by another competent body /person. Both these assumptions don't ring right at all.

pchirimar said...

Despite some errors in the R.K. Rajak v. SBI (India has never ever signed an optional protocal and the one to the CRPD is no exception and a few others), it is a great acheivement for the disability groups in India and for Mihir as a counsel! Ably presented cases can bring the jurisprudence to where we need it to be and fill in the lacunae in our laws in a manner both dynamic and progressive. Congratulations to the BHC and Mihir Desai. Medical/ temporary/ past disabilities are all categories that have been excluded from the perview of the PwD Act. Also exciting is the affirmative finding on the issue of whether a future prejudice attributed to a past medical disability be remedied under the Act.

However, it is hardly fair to cite this in comparison with the issue faced by the Punjab and Harayana HC! While I strongly disagree with the quoted text from Buck v. Bell, I think attempting to answer some of the questions posed may actually progress the debate. I do not profess to have all the answers here but am merely confessing to being as perplexed by this issue as everybody else and in desperate search for the right answer, am willingly exposing my views to get intelligent and thought provoking responses that may fuel further the search. I am not referring to the actual text of any of the articles cited while writing, so please pardon my memory if it fails in some details.

A. Paras 18 - 19 seem to be stating the test of her capacity that the HC took into consideration. Personally, I feel this is exactly what would be/ is required of them under Art. 12 of the CRPD. Although replacement of her right to choose is the most extreme form of supportive care and to be undertaken in most exceptional cases only, and Im not commenting on whether it is warranted here, it is lawful for the court to test her capacity. Her situation is not the same as other concieving women. Comparing it as such, is a denial of her reality and her experience of disability. That said, I dont think her case can satisfy the replacement of legal personhood test and hence, there can be no denial of her right to choose. But that entails, under Art. 12, that proportionate assistive decision making be provided by the state.

B. Similarly, the social (and not so much the financial conditions) are part of the Art 12 test for legal personhood. In the absence of FULL legal capacity, which she clearly lacks when diagnosed with mild to moderate MR, the societal support structures become relevant discussion. As to the financial capacity, I understand that it does not permit the state (or any other party) to deny the right to choose or to parenthood, but it does come within the circumstances that are considered in adoption and custody cases whilst determining which parent can provide the best upbringing for the child in question. Again here, the std is that of the interest of the child being kept paramount in accordance with Art. 3 of the CRC.

C. It is an indication of both the judiciary's helplessness in the absence of effective and safe state bodies and a reflection on the misfortune of the woman in question. It is true that the child can be adopted once born, but that would by itself form an entirely independent test, all of over again in my opinion, of this woman's capacity to parent. Her right to choose and right to parenthood may be upheld at this stage, but once the child is born, her right to parenting will surely be denied in the interest of the child. It will be a battle won but the war lost. Her physical health is not the only criterion to be considered here. Her mental capacity is in question by virtue of her MR and that has to be inevitably be part of any discussion on her fitness to "raise the child".

pchirimar said...

E. Based on empirical and scientific verification of each and every individual case, the Court is in fact required by Art. 12 to determine the capacity of disabled persons in order to enable them to exercise their attendant rights. So whatever the general statistical data may show about the parenting abilities of MR parents, it cannot be applied to her case.

F. MTP allows for parents of foetuses with disabilities or even increased risk to them to choose to terminate such pregnancy. However, if we allow for guardians to supplement the capacity of MR or other MIs, it has to be in accordance with Art. 12, i.e., proportionality. The consent has to be that of the disabled person, and only on very very rare occassions that of care providers. Consistent thinking on the right to choose and full legal capacity necessitates that no disabled person be deprived of their capacity w/o due process. The guardian/care providers consent should only be sought when the disabled person so lacks the capacity. But possessing the capacity to choose or consent, does not automatically entail the capacity to parent.

G. "Social acceptability of her rights as a parent"?! That language is deplorable to say the very least. And I also do not and cannot accept the arguement that the state's (in)ability to provide the kind of assistive care that she requires is the justitifcation for its decision to now take away her right to choose and to parenthood. But it is also true that in the absence of such supportive structures, the interest of the child requires, that once born, it should be placed in the kind of care that is best suited to its growth and development.

I hope my comments are found useful in taking this discussion forward and hopefully arriving at some fair arrangement for this woman who clearly needs justice. ALso, does anybody know what became of the criminal case that should have stemmed from her rape? Was she permitted to be a victim witness there? What was the value, if any, attached to her testimony, if she did in fact testify?

pchirimar said...

Thank you for posting my comment. I realised D. is missing from my response. If you can edit either of the entries, here is the text lost in copy 'n paste:

D. This I concede. But I suspect that the child will be put up for adoption sooner than arriving at learning age. Also, I rather not phrase these questions in "right to be born" terms, which seems to suggest a pro-life approach whereas Im very much for a pro-choice approach.