While this week was dominated by headlines and discussions on the possible lapses of government in the current outbreak of COVID-19, a three-day-old little soul was lost when the mother threw him out. Such a case is not new, and the State has not been able to prevent such incidents. Hundreds of netizens blamed and shamed the mother as a gross act of inhumanity and horrendous on social media.

The State, instead of finding out if the mother needs immediate mental and medical attention, detained her, and now faces prosecution. The mother may languish behind the bar for years and get herself branded as a murderer. The accountability of the father is not even questioned. We failed to understand that no mother would want to even hurt her newborn, leave alone intentionally kill unless she is either under severe mental disability or there is an extenuating circumstance beyond her control. We do not have a support system to prevent such incidents. It is time that such incidents must be taken seriously and institute appropriate measures to prevent such incidents in future to protect the life of the infant, prevent trauma and uphold the dignity of the mother.

We must recognise that Article 7 (1) of the Constitution guarantees the right to life and security as the fundamental right. Right to life is not about the mere existence of life but life with dignity and security. Article 9(22) imposes a duty on the state to “provide security in the event of sickness and disability or lack of adequate means of livelihood for reasons beyond one’s control.”  Further, Article 9 mandates the State to “take appropriate measures to eliminate all forms of discrimination and exploitation against women and children.”  Yet three consecutive governments have remained blind to such issues, maybe because such issues fetch no votes or are politically insignificant.

The current Adoption Act, Rules and Regulations and Child Care and Protection laws fall short of easy adoption in such circumstances. Further, the CAA requires the parent’s consent if the child is below six months of age unless the mother dies, or exceptional circumstances exist. The definition of such circumstances needs better clarity. The rules also require a written agreement between a biological parent or guardian and adopting parent, birth certificate, mother and child health handbook. The law is completely silent in the case of home birth which is the case in the recent incident. Ironically, even institutions like National Commission for Women and Children also remained silent on such issues. They failed to anticipate or foresee that some children will be born outside health facilities when they framed the rules. The current system makes it difficult or impossible for adoption even if people wish to adopt these kinds of infants saving their life.

Our legislature must amend the existing legislation and establish a robust and flexible system for adoption principled on strong privacy and confidentiality where the identity of the mother is protected, and the interest of the child is secured. The state has the responsibility to create an environment that would welcome any woman with unintended pregnancies instead of having to go through traumatic ordeals followed by criminal sanctions. If no action is taken, more mothers will become a murderer and more infants will continue to  lose life as extraordinarily difficult circumstances may happen to any woman.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.