Contested Motherhood - Ms. Jo Chopra, LRF

Dear Friends,


Ms. Jo Chopra, Latika Roy Foundation, Dehradun is a fond mother and activist for the inherent human rights of those experiencing disabilitiies and particulary intellectual disabilities. This is subsequent to my earlier post reflecting my senior colleague Collin Gonsalves, Advocate, Supreme Court of India presenting the legal views and social implications of the judgement.


Click here to read from source: The Hindu - Contested motherhood
JO CHOPRA

Can the State order an intellectually-disabled person to have an abortion even though she wants to have the baby? A look at some of the issues regarding sexuality and disability…

What kind of sexuality education do children with disability need? Do people with disability even have sex lives? Do they have the right to reproduce and raise their own babies?

Of the issues confronting people with disability, sexuality is the most charged. A recent case brought many of the most compelling strands of this complex tapestry together and it took the Supreme Court to settle it.

A young woman with a mental handicap, living in a government institution as a State ward, had been raped repeatedly by two guards there. At 19, she became pregnant. When her condition was detected, the State determined she should have an abortion. The woman insisted she wanted to keep the child.
The matter went to court and it was decided she should be compelled to have the abortion. An advocate for the woman filed an appeal in the Supreme Court where, given the urgency, a speedy verdict was rendered: no woman, even one with a mental handicap, can be compelled to have an abortion.

Many people weighed in on this case but many important issues were ignored or not analysed:
A disabled woman was raped. People with mental handicaps are statistically more likely to be sexually abused. They are accustomed to being dependent on adults for many of their basic personal needs and submissive in their response to them. Vulnerable People with developmental disabilities may lack the social skills to assess a dangerous situation and the judgment to get out of it or raise an alarm. They are exposed to more “caregivers” than typically developing people. The more people one is intimately involved with, the higher the chance that one will be an exploiter.

The woman became pregnant. People with developmental disability are often assumed to be both asexual and infertile. While some disabilities do have an associated infertility component (only around 50 per cent of women with Down Syndrome, for example, are fertile), most otherwise healthy adults have the same chance of being able to reproduce as anyone and many have the same sex drive as normal people.

Her pregnancy was ordered to be terminated by the High Court, in spite of her insistence that she wanted the baby. Here is the heart of the issue. Can a person with an intellectual disability make a decision? Is intellectual capacity required for parenthood? What about the baby’s right to life? Is the State justified in forcing someone to undergo an invasive procedure?

Many who agreed with the court’s decision nonetheless believed the baby would have to be taken from the mother and reared by the State. It’s important to look carefully at biases and assumptions here.

Are we sure that a woman with a cognitive disability is incapable of taking care of her child? In theory, there is no reason to assume she couldn’t manage, albeit with support. Most able women need support to bring up their babies too. Motherhood is demanding and a high IQ may be one of the least important pre-requisites. As long as the mother is loving and attentive, as many mentally handicapped women are, and, crucially, has support from the community, a baby could prosper in her care.

Granted, that baby might not get the perfect intellectual environment, but is academic success the only goal in life? Does it guarantee happiness? A child brought up by a mother with intellectual impairment might still be deeply loved and cared for and might be satisfied and content — not things to be lightly discarded.

In spite of such logic, arguments were made about the State’s compelling interest in seeing that this child not be born. Because the baby would have to be brought up by the State, better not to allow it to be born in the first place. This reasoning is both specious and dangerous.

Many people who are not wards of the State might still be judged incompetent to bring up children. The socialite more interested in parties than in a baby’s needs, the workaholic whose ambition supersedes her parenting responsibilities, the habitual drinker, the poor woman living hand to mouth, the child bride, the list goes on.


Are we prepared to terminate the pregnancies of such women? The Supreme Court said no. Human rights cannot be granted to some people and denied to others without ensuring that eventually they will be denied to all.

What if the baby were born with a disability, as many opponents of the Supreme Court decision hinted darkly was likely?The real issue

What if it were? And here is the true heart of the matter. Disability is, I believe, “The Last Frontier” in the battle against discrimination and injustice. While people are indeed denied basic human rights for all sorts of reasons all over the world, no civilised person ever tries to justify it. When women are raped, when prisoners are tortured, when children are abused, when war crimes are committed, the civilised world recoils in horror. We speak out against human rights violations wherever we see them and so we should and so we must. Except when it comes to people with disability.

Abortion of girls because they are girls is called what it is: murder, brutality. Abortion of babies with disability is routine, sanctioned and worse, expected. In the U.S., it is estimated that 95 per cent of babies detected with Down Syndrome are aborted. Women who elect to have their babies anyway are made to feel irresponsible, reckless and unfairly burdening society. Chilling decisions
Eminent philosophers (Dr. Peter Singer of Princeton is one example) speak openly of the moral right of parents to abort handicapped babies before they are born and afterwards too. At the moment, it is acceptable only in early infancy, before parents have gotten “attached”. But as ethicists admit, if it’s acceptable to abort a disabled baby before birth, what’s wrong with doing it later? This opens the door to chilling possibilities.

Sexuality offers a prism through which we can better understand ourselves, the people around us and the values we hold most dearly. When we use it to look at disability, we may find, to our dismay, we are not the people we thought we were. Although we speak of tolerance and diversity, many of us are uncomfortable with people with disabilities making choices in their lives, distressed by the idea of them having sexual relationships and appalled by the vision of them bringing more people like themselves into the world.

The Last Frontier. It’s later than we think.

The writer is the Director of the Latika Roy Foundation ( http://www.latikaroy.org/) in Dehradun, a Resource Centre for People with Special Needs.

Dear Friends,

Here is some news from the long awaited case which has not been concluded by the Hon'ble High Court as yet. The Govt. of Delhi is still contemplating assigning one special teacher for three schools which doesn't seem to be anywhere close to the promise of Inclusive Education that Govt. of India has tried to bring out in its recent Right to Education Bill ready for the assent of the President of India.

What you have to say?
regards
SC Vashishth



To read from source click here

The Municipal Corporation of Delhi (MCD)'s much-hyped decision to screen Bollywood movies such as Taare Zameen Par to educate teachers on ways to handle disabled students has angered the Delhi High Court.
The court suggested the Delhi government should instead form a committee to identify these children and treat them in a special manner to make their future bright.
On Wednesday, Chief Justice A.P. Shah and Justice Manmohan said Taare Zameen Par did not cover all aspects of disability, but was confined only to dyslexia.

The court observed that just by watching a film, a teacher won't be able to understand how to handle the special students.

"Proper mapping must be carried out by the government and the MCD to identify the number of disabled students. Secondly, the appointment of special, qualified teachers to take care of these students is an important aspect. The state must look into this matter seriously," Shah said.

The court suggested that a committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD be formed to oversee the process.

The bench also said designated schools should have transportation facilities for these students.
The Delhi government said there were 1,746 MCD and 922 government schools, and the process of identifying disabled students was tough and could only be completed by next June.

The government counsel said it planned to appoint one teacher for every three schools. "If we go by the 1: 3 ratio, we would require 300 teachers in government schools and 600 teachers in the MCD schools with the required qualifications to teach these students," the chief justice said.

MCD schools have been facing major problems in teaching disabled students due to paucity of specially trained teachers. As it is, it is hard to find fully equipped schools to teach them. Though the MCD claims it has two or three students with disabilities in almost every school, the teachers have many a times expressed its inability to teach such students.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

The court's suggestions:

• The Delhi government must form a committee to identify disabled students and treat them in a special manner.
• The MCD and the government must carry out proper mapping to identify the total number of such students in the government schools.
• The state must appoint qualified teachers to take care of them.
• A committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD should supervise the entire process.

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

• The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.

• In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.

• Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.

• The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.

• Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.

• Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.

• If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.

• However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).

• Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.

• However, in the instant case, the issue was of denial of promotion and not saving the job.
  As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.

• However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.

• However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.

• The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types, the way PWD Act does, Hence, it perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.

• Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to declare him to be 'medically unfit' for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.

The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate

Detailed Facts of the Chandigarh Case of Raped Mentally challenged Girl's Pregnancy

Dear Friends,

My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!

For those who are keen on accessing the Supreme Court Final judgement, they may access from here: Final Judgement: Shuchita Srivastavs Vs. Chandigarh Administration

Justice Kannan, a sitting Justice of Chandigarh highcourt, who is also a blogger since 2007 has reflected on this case on his blog which might be of interest to the readers. You may access Justice Kannan's perspective here.

The detailed note from Shri Collin Gonsalves also includes both judgements from the High Court of Punjab & Haryana which elucidates the reasoning for the order later reversed by the Hon'ble Supreme Court as informed in my earlier post. To me in either case, the girl has suffered and would suffer. By allowing the girl to retain the pregnancy, it might have been a win for pro-life activists but the track record so far in this case does give a grim picture of society and social organisations coming forward to support leave the Govt. setup aside where such a terrible incident occured.


Here is the note for your information:

The Right to Abort Vs. The Right to Give Birth

Chandigarh Administration Vs. Nemo

Colin Gonsalves

This note is being circulated so that you may have a look at the facts before the High Court in this case so as to make an informed decision on the merits of the case.

Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.

The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman’s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.

In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.

A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she also cries almost daily”. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:

“2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.

3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.

4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.

5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.

6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.

7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]”.

Click here for remaining part of the note

Click here for the Part-I of Punjab & Haryana High Court Judgement

Click here for the Part-II of Punjab & Haryana High Court Judgement

Click here for the Final Judgement by the Supreme Court

Another angle to look at the case: From a parent

Justice Kannan's Perspective on the case

regards
SC Vashishth, Advocate

Employees with Disabilities can be denied promotion on grounds of efficiency, security and safety.

Dear Friends,

We have got in to a habit of opposing any thing that takes away rights of the disabled. But here is the time to think, cogitate and reason out. While on one hand the enabling PWD Act says that Promotion can not be denied on the grounds of Disability, this black judgement says people with disability can be a risk to safety & security to equipments, themself and to the organisation they work for, etc!

Hon'ble Supreme Court has said that Efficiency can be a ground to refuse promotions to those with disability if their disability poses a threat to the security, safety and efficiency. The issue is very sensitive for it goes against the intent of the beneficial legislation and poses threat of stagnation before an employee with disability or those who acquire a disability while in service.

The PWD Act actually mandates a social security system for those who happened to acquire disability or have disability that they don't get stagnated. And it is well known now that with assistive aids and devices, the employees with disabilities are no less than their non-disabled counter parts.

The problem is that there is no rehabilitation programme for those who acquire disability during service and also there is no sensitization in the superior officers who recommend or decide on promotions and sit in the Selection Committees and DPCs!

Even this judgement seem to be going against the spirit of the PWD Act and also doesn't take in to account the role of modern technology in enabling a person with disability while at work. Its easy to label some one unproductive, inefficient, risk for security and safety but equally difficult to remove these labels.

To me, this judgement reflects the attitude of general society toward the disabled. It reinforces a minimum medical standard for promotion even for disabled people. There were already biases and negative attitudes but the law was enabling the employees with disabilities to fight back and seek their rights.

I am sure this judgement would go as a dark phase in the history of disability and development and employees would never be promoted under this garb and would remain stuck at where ever they are.

I fear that under these situations and conditions, the Courts might come against Section 47 also and refuse the employee acquiring disability during service to even continue on the present post in the garb of security, safety and efficiency!! I deeply regret this judgement for I don't find it any way close to the intent of The Persons with Disabilities Act and as well as UN Convention on Rights of Persons with Disabilities!

My experience with The Indian Railways has been very negative so far as the rights of disabled in employment are concerned. At each step they have refused to accommodate people with disabilities in their workforce on some or the other ground and the sector had to knock the doors of the Judiciary. We had favourable judgements from the highly sensitized judges of High Court of Delhi and other high courts but this time the Railways have managed to manipulate and misrepresent the abilities of people with disabilities before the court as well as perpetuated their age old believe that disabled employees pose a risk even in the controlled set up like research laboratories!!

To me, its more a case of improper and misrepresentation of facts and law before the double bench and this is not in the interest of the disability sector. I don't see that after this judgement, the long list prepared by Min. of Social Justice of the Jobs suitable for People with disabilities is of any relevance!!

regards

SC Vashishth, Advocate-Disability Rights

To reach from source click here: Times of India

Efficiency can be a ground to deny promotion to a disabled: SC

Dhananjay Mahapatra, TNN 23 July 2009, 03:43am IST NEW DELHI: In a significant judgment, the Supreme Court has ruled that the government or an employer can deny promotion to a disabled person if they are of the opinion that it can compromise efficiency, security or safety.

A Bench comprising Justices R V Raveendran and P Sathasivam gave this ruling despite being fully aware of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandated that "no promotion shall be denied to a person merely on the ground of his disability". Allowing an appeal of the Union government, the Bench said the 1995 Act would have no significance where the employer stipulated minimum standards for promotion keeping in view safety, security and efficiency.

"If the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then the Act would not be attracted, nor can it be pressed into service for seeking promotion," said Justice Raveendran writing the judgment for the Bench.

Clarifying that it was not against the legislative intention behind the 1995 Act, the SC said: "Where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion merely on the ground of his disability."

The Bench said it was aware of the intention of the Act, that was to give a helping hand to persons with disability so that they could lead a self-reliant life with dignity and freedom. "But, the intention of the Act is not to jeopardize the safety and security of public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability," the Bench said.

The apex court, through this judgment, upheld the prescription of a minimum medical standard for promotion from Senior Research Assistant to Chief Research Assistant in the Research Designs and Standards Organisation of the railway ministry and upheld the Union government's decision not to grant promotion to a disabled person who did not meet the minimum standards.

dhananjay.mahapatra@timesgroup.com