Rights over practicality?

http://www.livepunjab.com/articles/supreme-court-says-mentally-challenged-women-can-continue-pregnancy-18800.html

This is a report on how the Supreme Court, the Apex court of our country has withheld the right of a mentally challenged 19-year-old victim of rape to continue pregnancy. The girl, an orphan had been an inmate of Nari Niketan in Chandigarh where she was repeatedly raped by the watchman. By the time it was brought to light, the girl was found to be pregnant by eight weeks and was shifted to another home.

While the Punjab High Court took the role of a 'parent' and asked for the termination of the pregnancy, the girl's appointed lawyer asked for the continuation of the preganancy on the grounds that the child would be her only 'blood relative'.

As someone who is studying human rights, the case caught my eye for multiple reasons.I am no legal expert, but there are certain issues that i wanted to discuss (rather vent).

According to many, the SC has set a precedent by stating that mentally challenged women can have children, thereby protecting the rights of the mentally challenged. Appreciating this decision of the SC i however feel that there is a lacunae here and that the actual issue remains unaddressed. Ofcourse, mentally challenged and disabled women can become mothers but i believe motherhood is someting that is 'chosen' and not 'forced' upon.

In this particular instance, the girl was 'raped'and she certainly didn't know what was happening with her. So, the issue should have been not about protecting the rights of a disabled or mentally challenged woman, but that of forced motherhood on a rape victim-whether or not disabled.

Though Indian Law has left the choice of abortion to the parents, particularly the woman bearing the foetus, however the law also says that abortion cannot be carried out once the foetus is 20 weeks old. The teen's plight was brought to the notice of the authorities when she was eight weeks time, leaving ample time for an abortion or medical termination to be carried out. However, the question remains whether the victim wanted an abortion or not? Though, the High Court took the role of a 'parent' and asked for a medical termination, questions were raised by the victim's lawyer as to why the girl shouldn't become a mother.

But should the victim's motherhood have gotten more focus over the fact that a woman was raped? Again, a major question remains unanswered here- Was the victim's opinion really taken into consideration? Or was an opinion forced upon someone who was in no position to take this decision? And if a normal woman who has been raped and sexually traumatised has the right to abort why was there such a huge debate over this victim?Was it because she was mentally challenged?

By the time the debate reached SC, the girl was past 20 weeks of pregnancy leaving no option for the SC but to allow pregnancy-as terminating it would be dangerous for both mother and child and against the law.

Was this a case of - justice delayed justice denied? Could the SC have intervened earlier in the matter really taking into consideration the opinion put forth by mental health experts,doctors and ground reality and not just be swayed by human right activists and NGOs who are promising to take care of the girl-woman and her to-be-born child.

Despite being a student of human rights, i am not finding the judgement practical.Or should practicality be kept aside when talking about rights? I think we have enough laws and conventions which talk about protecting the rights of disabled and mentally challenged to become mothers but should the issue of rights have come up here especially coz the girl was raped.

An orphan and someone with an IQ of 9 years old, i wonder if the SC's judgement would have been the same if the girl was from an elite family. I also found the lawyer's arguments insufficient. She said the girl should have the child because that was her only blood bond. Should the judgement have swayed by emotions than practicality? A girl who is unable to take care of herself and that too raped,how right was it on the lawyer's part to say that she should carry on with the pregnancy, keeping aside the medical reports evaluating the child.

I will also state here that there have been instances where rape victims in the world have kept their pregnancy intact even when they had the choice to abort it. But i am concerned in this case as to whether the girl-woman really had a choice here?

A support system is extermely important for a disabled and mentally retarded people. In a scenario where the person has no proper support system, it naturally becomes the State' s responsibility to look after them. But whose responsibility does an orphan like this girl's case and hundreds others is it when the State fails?? And what is the guarantee that the State will not fail in protecting the interests of both mother and child here?

Motherhood is an important step in any woman's life and it has proven to have theraupatic effects in the case of the mentally challenged. However,one also needs to look at the trauma that was inflicted upon the girl-woman here. Will this pregnancy really have theraupatic effect on her or will it worsen the situation?

What was worse was that the ongoing debate on the 'motherhood' has kept the investigation of the rape wanting with the 'alleged' rapist denying the charge and saying that the pregnancy should not be terminated as it was'evidence'.So now question remains considering that the courts took their own sweet time to take a decision on the pregnancy, shouldn't the DNA tests and investigation of rape have been carried out first?

And this is where i think the need of fast track courts is felt again and again. We need in this country a strong judicial system and a fast one too. And that means we need more lawyers, informed ones and no i am not talking about the fake lawyers. There is a need tto increase emphasis on humanities in the education system. And the media should learn to be more balanced and not create unncessary emotional hype when it comes to sensitive issues like this.

Also, the media should follow up the story and actually see how effective (or right) was the judgement. People might have short term memory when it comes to news but the media shouldnt.

Thankfully, the case has brought to limelight the plight of hundreds and thousands of women -normal and mentally challenged who are subjected to varying forms of sexual abuse. But a lot needs to be addressed regarding pregnancies that arise out of such sexual abuse. Should the rights of the victim be safeguarded or should the rights of the unborn child be given precedent over the rights of the victim?