M: 140

Introduction to Reproductive Rights

The term “Reproductive Rights” is an umbrella term which not only covers the rights related to reproduction of the female, but encompasses the rights of the couple when it comes to the act of reproduction, to ensure a healthy reproduction, without any kind of discrimination or coercion linked to parameters such as gender, caste, age or ethnicity.[1] Shifting the focus to a feminine perspective and elucidating the general woman reproductive laws, they are mostly linked to a woman’s right to birth control and access to contraceptives, the right to a safe and legal abortion, freedom from being forced into taking contraception, maintaining a proper reproductive healthcare, right to sex education and the right to be protected against practice of sexual force on female body such as genital mutilation.[2]

With the advent of the feminist movements and the rise of awareness among the female half of the society, the impact of the same was evident in the formulation and inclusion of laws globally. The United Nations International Conference on Human Rights, in the year 1968, officially declared reproductive rights as a vital part of the same. Human Rights, essentially, are the rights which are made available to each and every citizen of a country without any form of discrimination.[3] Thus, the challenge was not only to recognize reproductive rights as a basic Human Right on paper, but to also implement the same towards all the citizens of the countries falling under the ambit of the United Nations.

Despite the efforts by the major global governing bodies like the United Nations, the awareness as well as the implementation of these laws stands to be a huge challenge before the world. It has been reported that 225 million women across the world lack the access to any sort of contraception, around 8000 women across the globe die every day due to reasons linked to pregnancy and childbirth, and from causes stemming from the social notions formed by the communities and are almost impossible to battle against.[4]

Right to Abortion

The act of abortion can be defined as the removal/expulsion of a foetus from the uterus, resulting in its death during the gestation period. It can occur spontaneously as a miscarriage or can be synthetically induced through chemical or surgical means.[5] Taking the Indian Legal Framework into perspective, The Medical Terminal of Pregnancy Bill, 1971 talks about the idea of abortion in the Indian society and permits it only on the following grounds:

  • As a health measure when there is danger to the life or risk to physical or mental health of women
  • Genetic wellbeing: where there is a substantial risk that the child, if born, would suffer from deformities and potential ailments
  • On humanitarian grounds: in cases where pregnancy arises from a sexual crime like rape, or intercourse with a lunatic woman, etc.

Interestingly, the Apex Court permitted a rape survivor to terminate her pregnancy at 24 weeks, which is way beyond the permissible 20 weeks limit prescribes under the Medical Termination of Pregnancy Act, 1971.

Furthermore, the Government of India launched a plethora of schemes in order to get an increased count of female centric outcomes in order balance the scale and make the Indian Legal Framework gender neutral in terms of reproductive laws. Some of the procedures include The Pre Natal Diagnostic Techniques Act of 1994 and the Medical Termination of Pregnancy Act of 1971 was enacted by the Government of India targeted towards the aim of reduction of illegal abortions, subsequently resulting into maternal mortality and morbidity. In addition to it, the Indian Penal Code, 1860 also provides for an exception and permits abortion only when it is justified for the good faith purpose of saving life of the woman. It is imperative to highlight here that sections 312 to 316 of the same elucidate the penalty any person performing illegal abortion is liable to.[6]

Certain case laws essential to the subject matter include Dr. Nisha Malviya v State of M.P.[7], where the court granted the permission to terminate the pregnancy consequent to a rape committed by the accused. The allegations stated that the other two co-accused parties (who shall remain anonymous) coerced the victim into getting an illegal abortion done and terminate her pregnancy, in order to remove the traces of the act committed by the accused. It was held that all three parties were declared guilty of illegal termination of pregnancy as it was not consented to by the mother of the victim and the victim herself.[8]

In light of the above discussion, another case playing a key role is Shri Bhagwan And Ors v State of M.P., where post conceiving ,the complainant, her husband and other family members took an exception to it, forced her into taking an abortion, which was outside the ambit of her consent. The Courts held the doctor liable under section 3 of the Medical Termination of Pregnancy Act, 1971, where a doctor is entitled to terminate the pregnancy under special circumstances.[9]

The Surrogacy Bill, 2016

The Surrogacy (Regulation) Bill of 2018 was first introduced in Lok Sabha (Lower House) on November 21, 2016, and it was subsequently referred to the parliamentary Standing Committee on Health and Family Welfare on January 12, 2017. It was passed by the Lok Sabha on December 19, 2018.[10]

The Primary aim of the bill was to put an end to commercial surrogacy, legalising only altruistic surrogacy. This implied that other than the medical and insurance expenses, the surrogate will not be compensated in any way. The Bill had specified the fact that the surrogate mother must be a closed relative of the intending couple within the age bracket of 25 to 35 years of age. However, the Bill fails to define the term “close relative”, hence giving room for ambiguity. It also claimed to have an objective of preventing exploitation of poor women who take up surrogacy as a way to earn their livelihood by prohibiting commercial surrogacy. Consequently, it did not help prevent exploitation of poor women, but just cut off their means limited means to make money. The Standing Committee could have taken other steps in order to prevent the exploitation like making the term of surrogacy ( gestation period of the surrogate mother ) more safe and secure, creating comfortable work conditions and perhaps looking into strengthening the contract between the surrogate and the intending couple by focusing on the intricacies of the contract.[11]

The Bill also highlights the fact that the intending couple should be a heterosexual couples where either of them or both of them are clinically infertile and the same should be declared by the District Medical Board. This not only reflects the narrow scope of the bill, but also a limited knowledge of the process of delivery, which will further complicate medical procedures, as being infertile is not the only cause of failed pregnancy. Moreover, it can also fall under the ambit of violation of the intending couple’s Right to Privacy. Furthermore, the Bill’s inherent conservative approach is reflected in the fact that it allows only an Indian couple bound by a heterosexual marriage for a minimum period of five years to be parents of the surrogate individual  thus fails to promote single person or homosexual relationships or marriages attain a child through surrogacy, which contradicts the bill’s claim of being “modern” and progressive. The drafting committee has not accommodated the needs of homosexual couples wanting to conceive through surrogacy. Thus, it can be summed up that the Surrogacy (Regulation) Bill, 2016 was not in line with the current social and cultural lifestyle of the country’s citizens and promoted an orthodox lifestyle among the citizens. The Bill Lapsed when the Lok Sabha was dissolved.[12]

The Surrogacy (Regulation) Bill, 2019

The government replaced the Surrogacy (Regulation) Bill, 2016 with the new Surrogacy Bill, 2019 in introduced it to Lok Sabha on July 15, 2019.[13]

The new Bill legalises surrogacy in the following scenarios:

  • Altruistic grounds
  • Not for commercial purposes
  • Not for producing children for sale
  • For intending couples who suffer infertility
  • For any condition or disease specified through regulations[14]

The intending couple should also possess a “certificate of essentiality” and a “certificate of eligibility” issued by the appropriate authority. Moreover, the surrogate mother has to be either a close relative of the intending couple preferably a married woman having a child of her own, within the age bracket of 25 to 35 years of age, being a surrogate only once in her lifetime and possessing a certificate of medical and psychological fitness for surrogacy. [15] It is imperative to emphasise on the fact that the term “close relative” still remains to be defined.

Professional – Patient Relationship

The law defines physician-patient relationship as a consensual relationship where the patient or someone acting on patient’s behalf knowingly employs a physician who consents to treat the patient. The foundation of the legal duties of a Health Care Institute lies in the deep-rooted professionalism in its physicians, whose primary duties include attending the patient, diagnosing the ailment and prescribing the required course of treatment. The following discussion deals with the idea of Contract between Patient and Physician

Contract between Patient and Physician

The physician-patient relationship can be considered as a contractual relationship, considering all the prerequisites of a basic contract fulfilled. Physicians in private practice may contract for their services and thus retain substantial control over the extent of their contract with patients by moulding the contracts according to their geographical area, specialization, scope of practice and other such parameters. They may transfer responsibility by referring patients to other specialists in accordance with their ailments. They may also refuse to enter into a contract with or to treat a patient, even under emergency conditions.[16] Millard v. Corrado was a landmark case with respect to this issue  and it was concluded from the case that when the physician’s alleged negligent act or omission do not involve a matter of medical science, a duty may also exist when public policy favours the recognition of a duty or when the harm is particularly foreseeable.[17]

Confidentiality and Disclosure in the Physician – Patient Relationship and Reproductive Rights

It is a well established fact that the protection of confidences revealed by the patient to the professional is one of the most vital obligations owed by a professional to a patient.[18] From the landmark case of Humphers v First Interstate Bank of Oregon, it can be concluded that “In case of medical profession, courts have found sources of a non consensual duty of confidentiality. Some gave thought such a duty toward the patient implicit in the patient’s statutory privilege to exclude the doctor’s testimony in litigation. More directly in the point are legal duties imposed as a condition of engaging in the professional practice of medicine or other occupations.

This strikes us as the right approach to a claim of liability outside obligations undertaken expressly or implied in fact in entering a contractual relationship. Since the duty of confidentiality is determined by standards outside the tort claim of its breach, physicians, like any other members of many ordinary confidential professions and occupations, also may be legally obliged to report medical information to others for the protection of the patient, of other individuals or of the society as a whole.” [19] The same right should ideally be equally available when the matter pertains to any of the reproductive rights in general and surrogacy in particular.

Medical Negligence and Standard of Medical Devices in India

The Indian Medical Laws follow a stringent protocol when it comes to manufacturing and maintenance of instruments and devices used in health care processes. As argued by Nadimpalli Radhadevi, medical devices extend the ability of physicians and surgeons to diagnose an ailment more efficiently and find a suitable course of treatment, thereby ensuring an optimum quality of life for the masses. She mentions that implementing a highly demanding standard of the resources, which turns out to be a great challenge for a developing nation. A suggested approach is to establish a comprehensive national policy or a framework of guidelines on medical devices and instruments used in the health care institutions across the nation. She talks about how a uniform registration would enable the government to: (i) have a record/listing of the vendor. (ii) Lay emphasis on the after sale obligations (iii) enforce orders on defaulters like suspension of licenses, and (iv) have a renewal system in place for registration thereby maintaining updated information.[20] This would not only ensure an effective and efficient use of technology in the field of medicine, but would also help keep an account of usage of technology, making it easier for the administration to reach out to the regions/institutions lacking the same.

Despite the global economic slowdown, the Indian Medical Device Market is growing at an exponential rate, attracting plethora of investors from all over the world.

 It has been reported that India’s medical value travel (MVT) market is expected to reach a volume of nine billion dollars (about Rs 65,000 crore) by next year, as the healthcare in developed countries is achieving greater heights in terms of cost of treatment.[21]

Understanding the “Standard of Care”

In legal terms, standard of care can be used to define the due diligence undertaken by the doctor in the course of operation/health care action. It is a formal set of guidelines that are generally accepted in the health care community for the course of treatment of any ailment.[22] According to the recent debates and conclusions by the research scholars, standard of care can further be bifurcated into two domains – the technical and the interpersonal. The technical care is the application of the science and technology of medicine practically onto the patient, depending on the episode of illness of the patient, whether the surgeon is following the relevant protocol or not. The second domain talks about the social and psychological interaction between the patient and the practitioner. There might also be a third element in care which could be the “amenities” or the facilities provided by the medical institution.[23] All these postulates lead us to a consolidated concept of the quality of care as that kind of care which is expected to maximize an inclusive measure of patient welfare, after the account of expected gains and losses. The degree of quality or the standard of care is, therefore, the extent to which the care provided is expected to achieve the more favourable balance of risks and benefits.[24]

Donabedian Triad of Healthcare – USA

Avedis Donabedian, the Father of Quality Assurance in the field of healthcare, developed a model called the “Donabedian Model” in 1966, which gave the legal scholars a new perspective towards Healthcare.

The Donabedian Model consisted of a triad – Structure, Process and Outcome to evaluate the quality of Healthcare. Dr. Donabedian defined “structure” as the settings, qualifications of providers and administrative systems through which care takes place; “process” as the components of care delivered which included the due diligence from the practitioner if looked at from a bird’s eye view; and “outcome” as recovery, restoration of function and survival. These parameters laid down the foundation of the quality assessment, which continue to set standards for the Healthcare quality in the contemporary society.[25] He further highlighted the importance of representative samples and clear measurement standards and emphasized on the need for valid measures of structure and processes that functioned retrospectively in order to link the initial stage to the final outcome for efficiently.

Other than formulating the triad, Donabedian encouraged a broader approach to quality measurement extent if which was beyond the technical front of healthcare, and tried to shift the focus to incorporation of assessments of prevention, rehabilitation, coordination and continuity of care, the patient-physician relationship, economic efficiency and societal values. Thus, the current health care framework in the United States can be traced back all the way to the Donabedian Era, and it can be concluded that the Donabedian triad gave a better perspective to the health care scholars.[26]

Medical Negligence – A comparative analysis

Medical standards, when it comes to the common law countries, usually are while keeping the idea of medical negligence into perspective. In cases like Williamson, where the accused man-midwife removed a prolapsed uterus assuming it to be a part of the placenta, the jury held him guilty for manslaughter under gross negligence; and in Akerele in 1942, where there was a Yaws epidemic in Africa. A doctor administered a high dose of sodium bismuth tartate, which proved to be highly fatal for the patient and resulted into poisoning. The Privy Council quashed the conviction on the accused and came up with an argument that “care should be taken before imputing criminal negligence to a professional man acting in course of his profession”.[27]  Both the cases brought us to the notion that having a stringent eye towards the medical profession when it comes to negligence would deter people from entering into this profession[28] and also, efficiency of the healthcare professionals would be compromised if they would have to operate under the threat of criminal prosecution[29].

As time advanced, the sympathy and the notion of having medicine at a higher pedestal evaporated into thin air and an ideology of subjecting doctors, other professionals and even laymen  to the same set of rules came into being. It later resulted into a global conundrum when it came to cases of this sphere and hence the evolution of law of medical negligence began. 

The scholarly researches boiled down the vagueness of the term “negligence” in medicine to three levels of bifurcation – (i) Decriminalising Negligence, (ii) Criminalising Negligence and (iii) Gross Negligence.

  • Decriminalising Negligence

The English Criminal Law Revision recommended this solution for common law offence of manslaughter by gross negligence. McCall Smith, a noted authority in the medical law, reiterated a judgement that the low levels of culpability of a negligent actor do not justify the invocation of criminal law that the lowest level of punishment is that of recklessness, acting with the subjective awareness of the risk of harm, boiling down to the fact that civil proceedings and disciplinary proceedings are a sufficient social response to negligence. Countries like Germany and Malaysia follow a legal framework where a case of medical malpractice attracts a civil liability, regardless of the gravity of the offence. The case of Chong Khingen and Pang Koi Fa v Lim Djoe Peng from the courts of Malaysia is a classic instance of decriminalising of negligence.[30]

  • Criminalising all Negligence

A stark solution to this dilemma is to criminalise each and every negligent act, irrespective of extent of damages to the plaintiff, as it would hold the merit of simplicity.  The only issue of concern is whether the accused has breached the standard of a reasonable competent doctor, which makes us question the parameters of fulfilling the definition of a reasonable doctor.

One strong argument for the favour of this approach is that the civil law fails to take into consideration the individual characteristics of a particular doctor and thus fails to deliver justice to society at large.[31]

The Crimes Act, 1962 in  New Zealand places all negligent acts under the ambit of negligence and makes all doctors liable for manslaughter in the event of failure to practice due care, regardless of the extent of damage suffered by the plaintiff.[32]

In light of the Indian Courts, the Bolam Test, which holds that the law imposes a duty of standard care between a doctor and his patient, forms the foundational plank in cases of medical negligence and helps tally the gravity of the offence committed.[33]

  • Criminalising Gross Negligence

The word “gross” implies a quantitative difference. The idea of gross negligence enshrines the tension and further creates a matrix rather than simplifying it.

“To be criminal, negligence must be something more” – Lord Hewart CJ

In light of the above statement, the judge described criminal negligence as gross, culpable, wicked, clear, complete and criminal. It was held that the incompetence must go beyond a matter of mere compensation between subjects.

This higher standard of negligence has received affirmation from the House of Lords in Adomako and also has deeply impacted the laws in Canada, Singapore, India and Sri Lanka.[34]

CONCLUSION

Thus, selective criminalisation on a case to case basis appears to be the most viable option with regard to medical negligence. The option does pose a challenge to the uniformity in the judgments, whereby an element of predictability in judgments is a sine qua non of a common law country. However, it minimizes the chances of a howler and equally maximises the chances of efficient administration of justice in cases of medical negligence.


[1]Women’s. (2018). Laws about Women’s Reproductive Rights | Organizations That Support These Rights | Women’s. [online] https://women-s.net/womens-reproductive-rights-laws/  [Accessed 19 Nov. 2019].

[2]Women’s. (2018). Laws about Women’s Reproductive Rights | Organizations That Support These Rights | Women’s. https://women-s.net/womens-reproductive-rights-laws/ [Accessed 19 Nov. 2019].

[3]Legalserviceindia.com. (2004). Right to Abortion in India – legal right to Terminate pregnancy. [online] Available at: http://www.legalserviceindia.com/articles/adp_tion.htm  [Accessed 20 Nov. 2019].

[4]Women’s. (2018). Laws about Women’s Reproductive Rights | Organizations That Support These Rights | Women’s. https://women-s.net/womens-reproductive-rights-laws/  [Accessed 19 Nov. 2019].

[5]Legalserviceindia.com. (2004). Right to Abortion in India – legal right to Terminate pregnancy. [online] Available at: http://www.legalserviceindia.com/articles/adp_tion.htm  [Accessed 20 Nov. 2019].

[6]Lawnn.com. (2017). Abortion Laws In India: Laws, Punishments And Cases. [online] Available at: https://www.lawnn.com/abortion-laws-india-laws-punishments-cases/ [Accessed 25 Nov. 2019].

[7] 2000 CriLJ 671

[8]Lawnn.com. (2017). Abortion Laws In India: Laws, Punishments And Cases. [online] Available at: https://www.lawnn.com/abortion-laws-india-laws-punishments-cases/  [Accessed 25 Nov. 2019].

[9]Lawnn.com. (2017). Abortion Laws In India: Laws, Punishments And Cases. [online] Available at: https://www.lawnn.com/abortion-laws-india-laws-punishments-cases/  [Accessed 25 Nov. 2019].

[10]PRSIndia. (2019). The Surrogacy (Regulation) Bill, 2016. [online] Available at: https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2016 [Accessed 25 Nov. 2019].

[11]Afreen, A. (2019). Why I Think The Surrogacy Bill Is Both Unreasonable And Unjust. [online] Youth Ki Awaaz. Available at: https://www.youthkiawaaz.com/2019/06/understanding-the-surrogacy-bill-2016/[Accessed 25 Nov. 2019].

[12]News and Analysis from India. A Refreshing approach to news. (2019). Discussion on Surrogacy Bill inconclusive in RS. [online] Available at: https://newsd.in/discussion-on-surrogacy-bill-inconclusive-in-rs/ [Accessed 24 Nov. 2019].

[13]PRSIndia. (2019). The Surrogacy (Regulation) Bill, 2019. [online] Available at: https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019 [Accessed 24 Nov. 2019].

[14]News and Analysis from India. A Refreshing approach to news. (2019). Discussion on Surrogacy Bill inconclusive in RS. [online] Available at: https://newsd.in/discussion-on-surrogacy-bill-inconclusive-in-rs/   [Accessed 24 Nov. 2019].

[15]News and Analysis from India. A Refreshing approach to news. (2019). Discussion on Surrogacy Bill inconclusive in RS. [online] Available at: https://newsd.in/discussion-on-surrogacy-bill-inconclusive-in-rs/   [Accessed 24 Nov. 2019].

[16]Furrow, B., Greaney, T., Johnson, S., Jost, T. and Schwartz, R. (2009). Health Law. 6th ed. New York: Westlaw. 207

[17]Furrow, B., Greaney, T., Johnson, S., Jost, T. and Schwartz, R. (2009). Health Law. 6th ed. New York: Westlaw.208

[18]Furrow, B., Greaney, T., Johnson, S., Jost, T. and Schwartz, R. (2009). Health Law. 6th ed. New York: Westlaw. 289

[19]Furrow, B., Greaney, T., Johnson, S., Jost, T. and Schwartz, R. (2009). Health Law. 6th ed. New York: Westlaw. 293

[20]Nadimpalli, r., veeranna, b., kumar, p. and valluru, r. (2012). Regulatory Guidelines for medical devices in India : an overview Asiapharmaceutics.info.http://www.asiapharmaceutics.info/index.php/ajp/article/viewFile/68/34 [Accessed 17 Nov. 2019].

[21]Indian medical travel market poised to reach Rs 65,000 crore: FICCI-EY

https://www.aninews.in/news/business/indian-medical-travel-market-poised-to-reach-rs-65000-crore-ficci-ey20191117105359/

[22]Torrey, T. (2019). Understanding Standard of Care for Patients. [online] Verywell Health. Available at: https://www.verywellhealth.com/standard-of-care-2615208  [Accessed 17 Nov. 2019].

[23]R. Furrow, B., L. Greaney, T., H. Johnson, S., S. Jost, T. and L. Schwartz, R. (2004). Health Law. 6th ed. United States of America: Westlaw, p.17.

[24]R. Furrow, B., L. Greaney, T., H. Johnson, S., S. Jost, T. and L. Schwartz, R. (2004). Health Law. 6th ed. United States of America: Westlaw, p.17.

[25]Ayanian, J. and Markel, H. (2016). Donabedian’s Lasting Framework for Health Care Quality. New England Journal of Medicine, [online] 375(3), pp.205-207. Available at: https://www.nejm.org/doi/full/10.1056/NEJMp1605101[Accessed 17 Nov. 2019].

[26]Ayanian, J. and Markel, H. (2016). Donabedian’s Lasting Framework for Health Care Quality. New England Journal of Medicine, [online] 375(3), pp.205-207. Available at: https://www.nejm.org/doi/full/10.1056/NEJMp1605101 [Accessed 17 Nov. 2019].

[27]Hor, M. (1997). Medical Negligence: The Contours of Criminality and The Role of Coroner. Singapore Journal Of Legal Studies, 86.

[28] Williamson, 3 C & P 635

[29]Akerele , AC 255

[30]Hor, M. (1997). Medical Negligence: The Contours of Criminality and The Role of Coroner. Singapore Journal Of Legal Studies, 86.

[31]Hor, M. (1997). Medical Negligence: The Contours of Criminality and The Role of Coroner. Singapore Journal Of Legal Studies, 86.

[32]Hor, M. (1997). Medical Negligence: The Contours of Criminality and The Role of Coroner. Singapore Journal Of Legal Studies, 86.

[33]Legalservicesindia.com. (n.d.). Test of Medical Negligence. [online] Available at: http://www.legalservicesindia.com/article/1685/Test-of-Medical-Negligence.html  [Accessed 18 Nov. 2019].

[34]Hor, M. (1997). Medical Negligence: The Contours of Criminality and The Role of Coroner. Singapore Journal Of Legal Studies, 86.