SC allows raped 'child' to give birth

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  • Published 21.07.09

New Delhi, July 21: The Supreme Court today allowed a mentally challenged rape victim who doctors said had a maximum IQ of a nine-year-old to give birth to her baby, saying nature will “take care” of the orphan mother and child.

The three-judge bench headed by Chief Justice K.G. Balakrishnan brushed aside every argument in favour of aborting the foetus, adopting a pro-life stand in a courtroom packed with activists, foreign journalists and young lawyers eager to gauge the outcome of the controversial case that is certain to generate in India a debate usually seen in the West.

“We are not in favour of termination of pregnancy,” the bench said, as it “stayed” a Punjab and Haryana High Court order.

The lower court had directed termination of the pregnancy, now in its 19th week, based on reports of an expert committee of doctors.

Under Indian law, medical termination of pregnancy is prohibited after the 20th week, though an appeal for a review of the 1971 act is pending before the Supreme Court.

In this case, the matter reached the apex court because the girl wanted to keep the baby but the Chandigarh administration was against it and the high court directed immediate termination.

The apex court acknowledged that time was “very less” for the 19-year-old, raped by two security guards at a home run by the Chandigarh administration, but took note of the statement of doctors that the woman had to be under constant supervision.

“If that is guaranteed, why terminate the pregnancy,” the bench said after a two-hour-long emotionally charged debate on the wisdom of allowing someone who didn’t “understand” conception and pregnancy to keep her child.

“Nature will take care on its own,” the Chief Justice added.

Two years ago, Bombay High Court had denied a couple permission to abort their unborn child. Doctors had told the couple in the 24th week of pregnancy that the foetus had a congenital heart block. But a report by an expert panel did not indicate that the child would “definitely have abnormalities”.

The child was delivered stillborn, just over a week after the August 2008 high court order.

Today, the apex court listed a reason for ruling against abortion in the Chandigarh case.

“We know that she will not be able to rear the child…. Someone else can take care of the child,” Balakrishnan said. Representatives of several non-government organisations offered to do so.

The rape victim’s lawyer, Tanu Bedi, said there was no “physical danger” to the girl. “She’s very happy about the child… and is looking forward to it.”

But the Union territory of Chandigarh, which runs the Nari Niketan where the girl was repeatedly raped by the security guards, made a passionate plea for abortion. “Her keenness to keep the child is not a reflection of her consent but that of a child who needs a toy…. She can only physically deliver a child and that’s all,” said counsel Anupam Gupta.

She doesn’t understand conception and pregnancy, the counsel insisted, urging the court not to get swayed by emotion. “Continued pregnancy is a threat to her mental health which can get worse.”

A psychiatrist present in the court also averred that the girl wouldn’t be able to cope with the demands of motherhood. “She will have to be under constant medical supervision…. Even then she will have to stay up nights to feed the child…. All this will put additional emotional strain on her and she may turn her anger at the child,” she said.

But the court rejected the argument, saying “maternal instincts” might take over. “Nature has a way of taking care of it.”

Balakrishnan said the bench would explain its decision in a detailed order later.

“We have saved a life,” the victim’s lawyer said after the order. Since the girl had consented to keep the child, the high court had no right to take a decision on her behalf to terminate it, Bedi said.

The medical community expressed surprise at the apex court’s decision. Dilip D. Walke, chairman of the ethics and medico-legal committee of the Federation of Obstetric and Gynaecological Societies of India, described the judgment as a “little surprising” and “very unfortunate”.

“How will she cope with the trauma of carrying the pregnancy through a full term, the labour, the delivery?” The decision should have been based on psychiatric evaluation, he said.

“The hormonal changes that occur during pregnancy will only add fuel to the fire,” he said hinting at the higher rate of post-partum psychosis in such cases.