Why medical termination of pregnancy ? asks Indian Judiciary

In an order of far-reaching implications, the Supreme Court of India on July 21 allowed a mentally-challenged orphan and rape victim to give birth to her child . In the process, the Supreme Court had also overturned a Punjab and Haryana High Court order dated July 17 2009, directing the termination of pregnancy of the 19-year-old girl, who was raped at a Nari Niketan (Women’s Home) run by the Chandigarh Administration.

The three-judge Bench headed by Chief Justice K G Balakrishnan said “We are not in favour of termination of pregnancy”, adding further that nature would give protection to them.

However, if to analyze an expert team’s report on the mental condition of the victim, which was read out in the court during the hearing, it painted a grim picture of the victim, as a mildly mentally challenged person who is unable to understand the concept of pregnancy and conception. Even her psychiatrist and gynaecologist had advised constant supervision of the victim, in their respective medical reports, to ensure her overall well being as she may not be able to take care of herself alone. In short, while the medical experts who have studied the victim had clearly stated that the woman is not fit mentally and physically to continue with the pregnancy, the rationale of law had surprisingly chosen to take just the opposite route,  for some reason.

Predictably, the judgment was welcomed with lots of silent criticisms, and ‘what if’ questions from the public at large, and let me also joins them in analyzing the different aspects of the ruling, and its implications.

As someone having a third person perspective of the developments, I would like to ask the readers,

• What would be the fate of the child and the mother?

• Why should we have an MTP Act in place if a mentally challenged  rape victim is not bound by its purview?

The court order may be justifiable as a caveat to the misuse of Medical Termination of Pregnancy. However this decision seems to prejudice the legislative intent of  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971.

The Medical Termination of Pregnancy Act, 1971 states that a pregnancy may be terminated by a registered medical practitioner of opinion, formed in good faith, if

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.

The Act further states that in determining whether the continuance of a pregnancy would involve such risk of injury to the health, account may be taken of the pregnant women’s actual or reasonable foreseeable environment. The Act also mentions that, if the pregnancy is caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Now, taking a hard look at the facts we have, here, the rape victim is not only mentally challenged, but also the prospect of her ‘actual or reasonably foreseeable environment’ improving is slim. As per the medical reports, she is also in no state of mind to understand the concept of pregnancy and conception, leave alone raising the child. Also, there is no guarantee whatsoever that the child will be born in good health, and without any physical or mental abnormalities that would leave him/her handicapped for life. Further, we can’t say now if continuing the pregnancy would involve a risk to her life.

Shockingly, the woman is an orphan too. MTP Act says that , no pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

The court might have taken refuge on its confidence on the social service organisations advocating for the rape victim’s rights. Can we expect the NGOs to act as the true guardian of the mother and child in letter and spirit ? then to what extent ?

Summing it all up, it appears to me that the best option would have been to terminate the pregnancy (considering the peculiar nature of this case),  rather than letting things escalate to more complexities and risks to the mother/child.