| In an order of far-reaching implications, the Supreme | | | | registered medical practitioner of opinion, formed in |
| Court of India on July 21 allowed a mentally-challenged | | | | good faith, if |
| orphan and rape victim to give birth to her child . In the | | | | (i) the continuance of the pregnancy would involve a |
| process, the Supreme Court had also overturned a | | | | risk to the life of the pregnant woman or of grave |
| Punjab and Haryana High Court order dated July 17 | | | | injury to her physical or mental health; or |
| 2009, directing the termination of pregnancy of the | | | | (ii) there is a substantial risk that if the child were born, it |
| 19-year-old girl, who was raped at a Nari Niketan | | | | would suffer from such physical or mental |
| (Women’s Home) run by the Chandigarh | | | | abnormalities to be seriously handicapped. |
| Administration. | | | | The Act further states that in determining whether the |
| The three-judge Bench headed by Chief Justice K G | | | | continuance of a pregnancy would involve such risk of |
| Balakrishnan said “We are not in favour of | | | | injury to the health, account may be taken of the |
| termination of pregnancy”, adding further that | | | | pregnant women’s actual or reasonable |
| nature would give protection to them. | | | | foreseeable environment. The Act also mentions that, |
| However, if to analyze an expert team’s report on | | | | if the pregnancy is caused by rape, the anguish |
| the mental condition of the victim, which was read out | | | | caused by such pregnancy shall be presumed to |
| in the court during the hearing, it painted a grim picture | | | | constitute a grave injury to the mental health of the |
| of the victim, as a mildly mentally challenged person | | | | pregnant woman. |
| who is unable to understand the concept of pregnancy | | | | Now, taking a hard look at the facts we have, here, |
| and conception. Even her psychiatrist and | | | | the rape victim is not only mentally challenged, but also |
| gynaecologist had advised constant supervision of the | | | | the prospect of her ‘actual or reasonably |
| victim, in their respective medical reports, to ensure her | | | | foreseeable environment’ improving is slim. As per |
| overall well being as she may not be able to take care | | | | the medical reports, she is also in no state of mind to |
| of herself alone. In short, while the medical experts | | | | understand the concept of pregnancy and conception, |
| who have studied the victim had clearly stated that the | | | | leave alone raising the child. Also, there is no guarantee |
| woman is not fit mentally and physically to continue | | | | whatsoever that the child will be born in good health, |
| with the pregnancy, the rationale of law had surprisingly | | | | and without any physical or mental abnormalities that |
| chosen to take just the opposite route, for some | | | | would leave him/her handicapped for life. Further, we |
| reason. | | | | can’t say now if continuing the pregnancy would |
| Predictably, the judgment was welcomed with lots of | | | | involve a risk to her life. |
| silent criticisms, and ‘what if’ questions from the | | | | Shockingly, the woman is an orphan too. MTP Act |
| public at large, and let me also joins them in analyzing | | | | says that , no pregnancy of a woman, who has not |
| the different aspects of the ruling, and its implications. | | | | attained the age of eighteen years, or, who, having |
| As someone having a third person perspective of the | | | | attained the age of eighteen years, is a lunatic, shall be |
| developments, I would like to ask the readers, | | | | terminated except with the consent in writing of her |
| - What would be the fate of the child and the mother? | | | | guardian. |
| - Why should we have an MTP Act in place if a | | | | The court might have taken refuge on its confidence |
| mentally challenged rape victim is not bound by its | | | | on the social service organisations advocating for the |
| purview? | | | | rape victim’s rights. Can we expect the NGOs to |
| The court order may be justifiable as a caveat to the | | | | act as the true guardian of the mother and child in |
| misuse of Medical Termination of Pregnancy. However | | | | letter and spirit ? then to what extent ? |
| this decision seems to prejudice the legislative intent of | | | | Summing it all up, it appears to me that the best option |
| THE MEDICAL TERMINATION OF PREGNANCY | | | | would have been to terminate the pregnancy |
| ACT, 1971. | | | | (considering the peculiar nature of this case), rather |
| The Medical Termination of Pregnancy Act, 1971 | | | | than letting things escalate to more complexities and |
| states that a pregnancy may be terminated by a | | | | risks to the mother/child. |