Incarcerated in Cell № 7 in the Fortress Prison in Landsberg Am Lech in the Bavarian state, Adolf Hitler in 1924 wrote in what was to become the agenda for Nazi Germany in the next few decades…
A folk-State should in the first place raise matrimony from the level of being a constant scandal to the race. The State should consecrate it as an institution which is called upon to produce creatures made in the likeness of the Lord and not create monsters that are a mixture of man and ape. The protest which is put forward in the name of humanity does not fit the mouth of a generation that makes it possible for the most depraved degenerates to propagate themselves, thereby imposing unspeakable suffering on their own products and their contemporaries, while on the other hand contraceptives are permitted and sold in every drug store and even by street hawkers, so that babies should not be born even among the healthiest of our people.
Mein Kampf, Volume 2, Chapter 2. Adolf Hitler
Hitler was first and foremost a believer in the racial supremacy of the German people and obsessed with the idea of a pure race, physically and mentally perfect. In Mein Kampf, he bemoaned the loss of what he called Germanic ethos and rededicated himself to the goal of a Germany in which there would only be pure blooded individuals, conforming to his vision of a mentally and physically perfect race.
Disconcerting echoes of this ideal of physical and mental superiority were heard in courtroom № 11 in the Punjab and Haryana High Court earlier this month.
The court was hearing the arguments concerning the fate of an unborn child, conceived in the womb of a person who was possibly of unsound mind, and who it was said could not discharge the onus that society places on a mother.
The child was not the result of a union of love or even of consensual lust – the child was the result of one or more heinous rapes perpetrated on the unwitting woman. The child was the result of the failure of the Union Territory of Chandigarh to protect a person it had labeled retarded and whose safety and welfare was its primary duty.
But what was in issue in courtroom № 11 was not the question of whether the woman had been raped or not; nor even the question of what punishment should society mete out to those guilty of violating a defenseless woman. The question that had been brought before the court by the guardian and representative of the people was whether or not to pass the death sentence on the unborn child of the destitute woman.
The law recognizes several situations where an abortion is legal and acceptable. The acceptable reasons for an abortion include the decision of the woman herself (in case she was raped or if the contraceptive she used failed – causing her grave mental anguish) and also cases where the continuation of the pregnancy poses an imminent and real danger to the life of the mother. In this particular case however, the pregnant woman was said to be mentally unsound – her mental condition was described to the court, to be that of a 6 or 7 year old child. It was therefore argued most ably and most unfortunately by the high representative of the society at large that her inability to appreciate the joys of motherhood, or her inability to look after the child would impose an undue burden on society and the baby must therefore be killed before it had drawn a single breath in this, which is claimed to be the land of compassion and kindness.
The counsel for the Union Territory of Chandigarh was at his eloquent – and verbose – best when he argued in favour of abortion. The underlying subtext was there for all to see – the woman is retarded and herself a destitute burden on society – the child is likely to be retarded and an even greater burden on society – no one would be benefitted by letting the child live. So kill it.
What was unsaid or perhaps unappreciated in court over the several days that the doyens of the legal professions argued, even as the miracle of nature was taking shape in that woman’s womb, was that the only and the sole reason for the existence of the state is to protect its citizens and to provide them with all that they need to live with dignity and in peace. It remained unstated in court that while executing the social contract, we – the people – did not sign over the right to be killed, terrorized or needlessly incarcerated on the whims of the Leviathan.
Having failed in its primary duty to protect the weak and the infirm, how could the Union Territory of Chandigarh possibly hide behind callous statements in the doctors’ reports that “She did not volunteer for sex and did not like the sexual act” in order to avoid its further duty to the woman and her unborn child?
What was probably not urged before the Judges and what the judgment does not therefore say is that every child who is conceived has the right to attain an identity distinct of its mother – the right of being born. The exceptions that we as a people have carved out are only three-fold. Either the mother must not be desirous of giving birth; or the pregnancy threatens her very life. The last exception being, that there is credible medical evidence that the child is going to be born with congenital defects so grave, that it would be cruel to bring him or her into this world.
The second and third exceptions were clearly ruled out by the doctors’ reports. Shorn of the unnecessary and obfuscatory text, the doctors clearly said that there was no reason to believe that the child was likely to be handicapped or retarded; and that there was no reason to believe that the woman’s life was endangered.
The only limb of the exceptions left was the issue of the desire of the mother. The law gives the state the right to stand in as the guardian or the parent of a destitute, who is said to be suffering from mental retardation, to express her mind. So in this case, it was deemed that the alleged mental retardation of the woman precluded her from giving her consent to the continuation of the pregnancy and her statement that she wanted the baby was therefore discounted as irresponsible.
Without going into the complex issues of morality and legality incidental to such a stand, it was lost sight of in the court that the culmination of a pregnancy in a birth is the rule and an abortion merely the exception. The exception is invoked in limited cases – and only where there is a conscious desire arising from mental or physical trauma or necessity to invoke it. No consent – maternal or medical – is required to proceed with a pregnancy. But a conscious decision to terminate it is the essential requirement for an abortion.
In the case at hand, standing in as the parent of the unfortunate violated woman, the state urged the court to order termination. The reasons for such a prayer are most unfortunate and most unconscionable.
The first reason was that she was a destitute woman, incapable of looking after herself and therefore incapable of looking after the child. The second was that the child was the consequence of a rape. The third was that the child would be a perpetual burden on society. Another reason invoked was of her being unable to financially provide for herself or her child.
None of these reasons can stand in the way of the child being born. It is the sole function and Raison d’être of the state to provide for and to raise and nurture such people. The state which cannot look after its unfortunate is a state which has lost its conscience and a state which has lost its moral right to be called a state.
The unfortunate judgment sums up thus “We also can not over-look the fact that if allowed to be born, the child’s own life, grooming and future prospects may itself be highly disappointing.” These words “allowed to be born” are chilling and speak volumes about the assistance which was rendered to the court. No child is required to petition a court for the right or permission to be born. No court – legal, ecclesiastical, social or otherwise – can arrogate to itself the right to allow or disallow children from being born.
The conclusion “For the reasons stated above and in continuity of our previous order dated 9th June, 2009, we direct the petitioner- Administration to act promptly and forthwith medically terminate the pregnancy of the victim in terms of Para 38 of our previous order dated 9th June, 2009.” is an indictment and a death sentence pronounced on a child who has yet to be born, for some unnamed offence that he or she cannot even comprehend. It flies in the face of each and every theory of human rights and in the face of humanity itself.
The sum total of the judgment is an eerie and frightening resonance of the desirability of the qualities that Hitler expressed in his manifesto. It is an affirmation that this woman and her unborn child are “monsters that are a mixture of man and ape” and not in the “likeness of the Lord”.
Judgments, it is said, are a reflection not of the judges’ intellect or capacities. Judgments are a reflection of the assistance received by a judge in the court. Bad cases and bad submissions make for bad judgments and horrendous precedents. By all standards of legal standards and morality, this judgment was an abomination.
(July 24, 2009)
Article published in The Tribune – August 8, 2009
