'To Protect Interest Of Minor Victims, Preserve Evidence': Kerala HC Directs Doctors To Preserve Foetuses After Performing Abortion On Minors

The Kerala High Court has given a direction to the Director of the State Health Department to inform all doctors of the State to preserve the fetus of minor victims and to get written permission from the Investigating Officer/ District Police Superintendent in order to destroy it. Justice A. Badharudeen observed that this was required to protect the interest of the minor victims and to ensure that the accused does not flee trial for want of vital piece of evidence.“..in order to protect the interest of the minor victims and to avoid flee of the accused from trial, for want of vital piece of evidence, there shall be a direction to the Director, Health Department, State of Kerala, to communicate this order in the form of circular to all doctors in the State, directing them to preserve the fetus of minor victims mandatorily, without being destructed and in order to destruct the fetus, the doctors should get written permission from the investigating Officer or from the District Police Superintendent concerned.”The Court while considering this matter had enquired whether there was any law requiring preservation of the fetus in case of MTP involving minor victims and the Public Prosecutor answered in the negative. The Court suggested the State and Centre to consider passing appropriate legislation in this regard. Till then, the direction of the Court shall remain in force.The Court was considering a case where the doctor was booked under Section 201 of IPC (Causing disappearance of evidence of offence) for not preserving the fetus after performing Medical Termination of Pregnancy (MTP) on a minor victim. He was also booked under Section 5(3) of the Medical Termination of Pregnancy Act, 1971 (terminating pregnancy in an unauthorized place). The doctor had approached the High Court to quash further proceedings in the case.The Court noted that the doctor had informed the police about the matter on the day he met the victim, the MTP was performed on the next day. Only 3 after MTP was performed, the police intimated the doctor to preserve the fetus if MTP is carried out for DNA examination.The Court said that the fetus was destroyed before the police intimated the doctor to preserve it. The Court said that when there is no legal mandate to preserve the fetus, the petitioner cannot be booked for causing the disappearance of evidence to screen the offender. MTP Rules Does Not Provide For Any Validity Period For Certificate Of ApprovalThe Hospital had submitted before the Court that they had the certificate of approval under Rule 5(6) of Medical Termination of Pregnancy Rules and were authorized to conduct MTP in pregnancy up to 16 weeks. The Public Prosecutor argued that the certificate of approval was issued on 18.07.2014 and it has not been renewed since. The Public Prosecutor submitted that on 12.04.2021, when the MTP was performed, there was no approval.The Court after going through the provisions namely Sections 4 and 5 of MTP Act and Rules 5 and 7 of MTP Rules, observed that there is no validity period for a certificate already issued. The Certificate can be suspended or cancelled under Rule 7. However, the Court observed, that until there is such suspension or cancellation, the certificate is valid.The MTP is Justified By Virtue Of Section 5(1) of the ActIt was alleged against the petitioner that he conducted MTP on the victim illegally knowing that the gestational age of the victim was 17.2 weeks. The Hospital only had authorization to perform MTP in pregnancy up to 16 weeks. In the obstetric sonography report, the LMP (Last Menstruation Period) of the victim is recorded as 25.12.2020. Counting from LMP, the MTP was performed within 16 weeks. However, as per the sonography report, the estimated gestational age is shown as 15.3 weeks and the average gestational age is shown as 17.2 weeks.Sections 3 and 4 of the Act detail the procedure to be followed and a place where MTP can be performed legally. However, Section 5(1) says that these criteria related to the length of the pregnancy and the opinion of not less than two registered medical practitioners will not be necessary when the registered medical practitioner is in good faith of the opinion that the termination of such pregnancy is necessary to save the life of the pregnant woman. In this case, another doctor had given a medical opinion that in order to prevent grave injury to the physical and mental health of the victim, MTP was necessary.The Court held that though the doctor did not opine that immediate MTP was necessary to save the life of the victim and there were different estimates as to the gestational age, the MTP is justified by Section 5(1) especially considering it was performed after informing the police. The Court, therefore held that the offence under Section 5(3) is also not made out against the petitioner. The Court also remarked that the normal method of calculating gestational age is counting the days from the LMP.Accordingly, the petition...

'To Protect Interest Of Minor Victims, Preserve Evidence': Kerala HC Directs Doctors To Preserve Foetuses After Performing Abortion On Minors

Manju Elsa Isac

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