'Health Service Providers Fear Potential Criminal Liability': Orissa HC Issues SOP For Medical Termination Of Pregnancies

The Orissa High Court has expressed concern over hesitation amongst health care providers to act promptly in providing medical termination of pregnancies, especially in cases of rape, even when no Court intervention is needed. The Court, in order to address the problem, has issued certain directives which would form part of a comprehensive Standard Operating Procedure (SOP) to govern medical termination of pregnancies.The Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi flagged the fear of potential criminal prosecution in the minds of doctors/ health service providers as a reason to drag every such matter to Court for judicial approval. Highlighting the factor, the Judge said –“Whether driven by fear of reprisal or an abundance of caution in the face of potential criminal liability, many health service providers hesitate to act within the bounds of their professional and legal authority. Instead, they force patients to seek court approval for what is fundamentally a medical decision, one that should be guided by expertise and necessity, not burdened by procedural uncertainty.”The Court was hearing a writ petition seeking medical termination of pregnancy of a 13-year-old tribal girl suffering from sickle cell anaemia and epilepsy, who bore a foetus aging more than 24 weeks as result of repeated sexual intercourse.Court's ObservationsThe Court extensively cited K.S. Puttaswamy v. Union of India (2017) and relied upon X v. Union of India (2023) to hold that decisions relating to abortion comes under the purview of bodily autonomy and reproductive choices, which is protected under Article 21 of the Constitution.Having regard for Section 3 of the MTP Act and the requirements enunciated in X v. Union of India (supra), the Court held that the case of the victim girl squarely falls within the ambit of permissible termination and allowed the petition by way of a direction to the concerned medical authorities to carry out termination of the pregnancy. However, the Court lamented the prevailing state of affairs where despite of having no obstruction from law, the medical procedure was delayed to the detriment of the victim. It held that the delay arose from a failure to direct the case immediately to the Medical Board. The Medical Board was convened only upon the order of the Court.“The Supreme Court, in X v. Union of India (Supra), has laid down clear precepts: where the gestational period surpasses 24 weeks, the matter must be referred to the Medical Board. The necessity of approaching this Court could have been obviated had the matter been referred to the Medical Board at the outset, rather than awaiting judicial intervention to set the process in motion,” it observed.Justice Panigrahi asserted that either due to fear of reprisal or an abundance of caution in the face of potential criminal liability, many health service providers hesitate to act within the bounds of their professional and legal authority. They instead require the patients to seek legal approval for what is essentially a medical decision.“The Patients and the healthcare providers cannot be left to navigate a maze of red tape that serves no purpose but to obstruct, delay, and deter. In the domain of essential reproductive healthcare, neither the fear of litigation nor the burdens of cumbersome formalities may cast doubt upon the rights and the law, in its reasoned justice, has affirmed.”The Court referred to X v. State of Maharashtra (2024) where the Bombay High Court was in seisin over a similar case. The Court therein noted that rather than directing the matter to the Medical Board for an opinion, the Hospital rather asked the petitioner to seek recourse before the judiciary. Therefore, the Court had deemed it necessary to direct the concerned departments to bring in a comprehensive SOP to govern the field.“To subject a victim and her family to prolonged legal formalities is to impose a burden that extends beyond the courtroom, adding to their distress rather than alleviating it. When legal processes become unnecessarily complex and unyielding, they risk creating additional hardship for those already in a vulnerable position. The law, at its best, serves as a shield of protection, but when applied without sensitivity, it can become an obstacle rather than a source of relief,” it said.It also made a reference to an empirical study/working paper published by NLSIU, Bangalore, wherein it was found that although in such cases, a permission for termination of pregnancy is usually granted, the extra-legal requirement of judicial authorisation, and the consequent delay in termination of a pregnancy, cause significant physical and mental agony to women. “Here, a thirteen-year-old child, still developing her understanding of the world, has endured the unimaginable; the violation of her body, the crushing of her spirit, and the burden of an unwanted pregnancy she never chose. It is a tragedy that defies comprehension, a failure of protection so profound...

'Health Service Providers Fear Potential Criminal Liability': Orissa HC Issues SOP For Medical Termination Of Pregnancies

Jyoti Prakash Dutta

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