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A daddy state

In Chandigarh Administration v. Nemo,the Punjab and Haryana High Court delivered two judgments (on June 9th and July 17th) holding that a mentally disabled...

Written by MADHAV KHOSLA |
July 24, 2009 10:44:58 pm

In Chandigarh Administration v. Nemo,the Punjab and Haryana High Court delivered two judgments (on June 9th and July 17th) holding that a mentally disabled woman was incapable of making considered decisions about her pregnancy,and determining what standards and criteria must guide the decision-making process. Since the individual had no family,the high court appointed itself as her guardian and ordered an abortion. Earlier this week,the Supreme Court stayed the abortion.

Surrogate decision-making for the mentally disabled raises serious legal and moral issues. Frameworks hoping to resolve these issues must evaluate concerns ranging from which choices should be delegated to a surrogate to whether the interests of others should influence the decision-making process.

The Medical Termination of Pregnancy (MTP) Act,1971,distinguishes between mental illness and mental retardation. As per Section 4(b),unless the individual is mentally ill,her consent is mandatory to terminate pregnancy. In this case,the individual was mentally retarded and not mentally ill. In its first judgment,the High Court acknowledged that the literal meaning of the Act would require her consent for an abortion. Nonetheless,it went great lengths to examine how a mentally retarded person would be unable to make a meaningful decision in such a case. Consequently,it held that under the parens patriae doctrine it could appoint a guardian for a mentally retarded woman to determine if terminating her pregnancy was in her best interest. One is sympathetic to the high court’s effort in striving to meet the overall objective of the Act,and to utilise principles that embrace moral and social considerations. Admittedly,the nature of the Act’s distinction between mental illness and retardation appears unclear. Yet,in an instance where the statute is unambiguous that consent is required in cases of mental retardation,the task of blurring that distinction must lie with the legislature.

The high court proceeded in its second judgment to examine whether the pregnancy of the mentally disabled woman should be allowed to continue. Typically,the test employed in such a scenario is the “best interest” standard where the focus of inquiry is the best interest of the individual. In adopting this standard,courts also sometimes evaluate whether their decision minimises the adverse impact of an incorrect judgment. An alternate approach is the “substituted judgment” standard where the decision-maker attempts to make a decision that would best reflect the individual’s values and preferences. This test is,however,considered far more problematic. The decision-maker may well inject his values or preferences while making the decision. Moreover,although this test is usually limited to cases where the individual expresses her desires while still competent,the individual’s desire could change.

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In Nemo,the high court attempted to apply the best interest standard. A leading US decision is the Terwilliger case where the Pennsylvania Superior Court listed factors for evaluating whether sterilisation was in the individual’s best interest. These include the emotional and physical trauma the individual would have to suffer,the inability of the disabled person to understand reproduction,and the individual’s ability to care for a child. The Punjab and Haryana High Court failed to rigorously apply the best interest standard. While some factors outlined in Terwilliger were considered,other unnecessary ones such as the financial condition of the individual were also examined. The Expert Body appointed by the court to study the individual appears to have applied the substituted judgment standard by concluding that the individual,having understood the consequences,sought to continue her pregnancy. But the court rejected these findings emphasising the best interest inquiry.

Before the Supreme Court,oral arguments were delivered pertaining only to the second judgment. The Supreme Court permitted continuation of the petitioner’s pregnancy while observing that it would subsequently deliver the reasons for its verdict. Making meaningful choices for others can never be easy. But the high court verdicts remain unconvincing both for their rewriting of the MTP Act and unsatisfactory application of the best interest standard. The ultimate conclusion of the Supreme Court’s verdict shows more promise. Hopefully so will its reasons.

The writer is a law student

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