Doctors Cannot Be Prosecuted for Not Preserving Fetus Without a Legal Mandate: Kerala High Court Quashes Criminal Proceedings Against Doctor

No Law Requires Automatic Fetal Preservation in MTP Cases Involving Minors – Legislature Must Address This Gap - In a significant ruling, the Kerala High Court quashed the criminal proceedings against Dr. Hafeez Rahman P.A., a doctor accused of illegally terminating a minor’s pregnancy and destroying fetal evidence. The Court held that the medical termination of pregnancy (MTP) was conducted within legal limits and that there was no legal obligation on the doctor to preserve the fetus at the time of the procedure.

Justice A. Badharudeen, allowing the Criminal Miscellaneous Case No. 4372 of 2022, observed, “There is no statutory mandate requiring doctors to automatically preserve the fetus in MTP cases involving minor victims. The petitioner reported the crime promptly and did not act with an intent to screen the offender.”

The case arose from Crime No. 313 of 2021, registered at Thrikkakara Police Station, where the petitioner, a doctor at Sunrise Hospital, Kakkanad, was charged under Section 5(3) of the Medical Termination of Pregnancy Act, 1971, for allegedly performing an MTP beyond the legally permissible gestational age, and under Section 201 of the Indian Penal Code for allegedly destroying evidence of the crime.

“MTP Conducted Within Legal Limits – No Violation of the MTP Act”

A key contention in the case was whether the pregnancy had exceeded the gestational age permitted for termination under the MTP Act, 1971. The prosecution claimed that the pregnancy was 17.2 weeks, whereas the hospital’s authorization was limited to MTPs up to 16 weeks.

The Court ruled that the calculation of gestational age was a matter of medical interpretation and that the standard method of counting from the Last Menstrual Period (LMP) placed the pregnancy within the legally permitted limit. “The normal method of calculating gestational age is by counting the days from the LMP. In this case, the LMP was recorded as December 25, 2020. By this method, the pregnancy was within 16 weeks, making the MTP legal,” the Court held.

The prosecution also contended that the hospital’s approval certificate had expired, rendering the procedure unauthorized. Rejecting this argument, the Court clarified, “The MTP Rules do not prescribe a validity period for an approval certificate unless it is explicitly canceled or suspended. Since no such cancellation or suspension occurred, the approval remained valid.”

“Doctors Cannot Be Penalized for Not Preserving the Fetus When There Was No Such Instruction”

The most contentious charge was that the doctor had failed to preserve the fetus for DNA analysis, allegedly aiding the accused in evading justice. The Court found that there was no legal requirement for the doctor to do so at the time of the procedure.

The police only issued instructions for fetal preservation on April 16, 2021—three days after the fetus had already been disposed of. The Court noted, “The petitioner reported the crime on the very day he received the minor for treatment. There is no evidence of intent to screen the offender. Since no law mandates automatic fetal preservation, the destruction of the fetus does not constitute an offense under Section 201 IPC.”

Emphasizing that there was no deliberate attempt by the doctor to cause the disappearance of evidence, the Court referred to the Supreme Court’s ruling in Sukhram v. State of Maharashtra (2007), which established that criminal liability under Section 201 IPC requires an intent to screen the offender. “The petitioner acted in good faith, reported the crime immediately, and proceeded with the MTP based on medical advice. The prosecution’s case against him is entirely unsustainable,” the Court observed.

“Legislature Must Mandate Fetal Preservation in POCSO Cases”

While the Court found no fault in the doctor’s actions, it acknowledged a critical gap in the law regarding fetal preservation in cases involving minor victims of sexual abuse. Justice Badharudeen stated, “Currently, there is no legal provision requiring doctors to preserve the fetus in MTP cases related to POCSO offenses. The legislature must address this gap to prevent the loss of crucial evidence in child sexual abuse cases.”

To address this issue, the Court issued an interim direction to the Kerala Health Department, stating, “The Director of Health Services, Kerala, shall issue a circular directing all doctors to preserve the fetus in cases where MTP is conducted on minor victims of sexual abuse. The fetus should not be destroyed without written approval from the Investigating Officer or the District Superintendent of Police.”

“Criminal Case Quashed, Government Directed to Act”

Quashing the criminal proceedings against Dr. Hafeez Rahman, the Court held that no offense under the MTP Act or IPC had been made out. Additionally, it directed that a copy of the judgment be sent to the Law Secretaries of Kerala and the Union of India to consider amending the law. “Until such legislative changes are made, doctors in Kerala must follow the interim directive on fetal preservation,” the Court ruled.

This judgment not only prevents the wrongful prosecution of doctors but also ensures that crucial evidence in POCSO cases is preserved, strengthening the legal framework for child protection and sexual assault cases.

Date of Decision: 19 February 2025