SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

In determining the best interests of the woman, the Supreme Court noted that at the time of
the lower court’s decision the woman was already 19 weeks pregnant and relying on the US
Supreme Court decision in Roe v. Wade, the court noted the compelling state interest in the
health of the woman and the prospective child after a certain point in the gestation period.
The court found that performing an abortion at such a late stage could have endangered the
victims' physical health and the same could have also caused further mental anguish to the
victim since she had not consented to such a procedure and was therefore not in her best
interests.
The Supreme Court held that its conclusions were strengthened by norms developed in the
realm of international law including United Nations Declaration on the Rights of Mentally
Retarded Persons, 1971 and the Convention on the Rights of Persons with Disabilities which
the court noted India had ratified on October 1, 2007 and the contents of the same are binding
on the Indian legal system.
The Supreme Court also noted that the case presented an opportunity to confront some social
stereotypes and prejudices that operate to the detriment of mentally retarded persons
including the fact that such persons can live in normal social conditions and do not need
institutionalisation; that in a family setting the woman may also have received training to
avoid unwelcome sexual acts which was not the case having lived all her life in an
institutional setting; that such persons are capable of being good parents.
The Supreme Court commented in strong terms on the eugenics theory that has been
disproved. It stated that, “the said 'Eugenics theory' has been used in the past to perform
forcible sterilisations and abortions on mentally retarded persons…We firmly believe that
such measures are anti-democratic and violative of the guarantee of 'equal protection
before the law' as laid down in Article 14 of our Constitution.” [emphasis added]
The court also directed, in relation to concerns about the woman’s capacity to cope with the
pregnancy and childbirth that the best medical facilities be made available so as to ensure
proper care and supervision during the period of pregnancy as well as for post-natal care. 674
In Nepal, the Country Code underwent significant reform through the Eleventh Amendment
in 2002, which is of great relevance to sexual health rights of women and children in
particular. 675 In relation to abortion, the reformed law grants the right to undergo abortion
with the advice of a medical practitioner at any time, in cases where the pregnancy poses
danger to the life of the pregnant woman or to her physical or mental health or it leads to the
birth of a disabled child.
674 Since there is an apprehension that the woman in question may find it difficult to cope with maternal
responsibilities, the Chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities (constituted under the similarly named 1999 Act) has stated in an
affidavit that the said Trust is prepared to look after the interests of the woman in question which will include
assistance with childcare.
675 The authors did not have access to the original text or an English translation of the Country Code (Eleventh
Amendment) Act. This overview is based entirely on a note prepared by the Forum for Women, Law &
Development and available at its website: http://www.fwld.org.np/11amend.html and an unpublished study
and analysis on sexuality and rights undertaken by the FWLD, which was made available to the authors. [See
also Abortion section English version -
http://www.hsph.harvard.edu/population/abortion/NEPAL.abo.htm]
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