Seminar II

FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI
“MEDICINE, PROFESSIONAL ETHICS, SURROGACY, FERTITLY TOURISIM,

PROFESSIONAL ACCOUNTABILITY OF DOCTORS, RIGHT TO LIFE, ORGAN TRANSPLANT
AND THE MEDICINAL LAW”
ACKNOWLEDGEMENT
The success and final outcome of this research paper required a lot of guidance and
assistance from many people and I am extremely fortunate to have got that all
along the completion of my research work. Whatever I have done is only due to
such guidance and assistance and I would not forget to thank them.
I owe my profound gratitude to our Seminar-I teacher Dr. Ghulam Yazdani, who
took keen interest in my research work guided me all along, till the completion of
my project by providing all necessary information for the research report.
I am thankful and fortunate enough to get constant encouragement, support and

guidance from all teaching staff of Faculty of Law, Jamia Millia Islamia which
helped me in successfully completing my research work. Also, I would like to
extend my sincere regards to all the non-teaching staff of Faculty of Law, Jamia
Millia Islamia and Indian Law Institute.
I would also not forget to remember my friends for their unlisted encouragement
and more over for their timely support and guidance till the completion of my
research work.
SAAD SAEED
2 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

RESEARCH METHODOLOGY
This research was conducted using the ‘Doctrinal’ method of research.
Doctrinal legal research, as conceived in the legal research domain, is research

‘about’ what the prevailing state of legal doctrine, legal rule, or legal principle is.
A legal scholar undertaking doctrinal legal research, therefore, takes one or more
legal propositions, principles, rules or doctrines as a starting point and focus of his
study.
I located principles, rules or doctrines in statutory instrument(s), judicial opinions

thereon, discussions thereof in legal treatises, commentaries, textbooks,
encyclopedias, legal periodicals, and debates, if any, that took place at the
formative stage of such a rule, doctrine or proposition. Thereafter, I ‘read’ them in
a holistic manner and made an ‘analysis’ of the material as well as of the rules,
doctrines and formulated my ‘conclusions’.
Doctrinal legal research, thus, involves: (i) systematic analysis of statutory

provisions and of legal principles involved therein, or derived therefrom, and (ii)
logical and rational ordering of the legal propositions and principles.
TABLE OF CONTENTS

 Introduction
 Medical Negligence And Consumer Rights: Emerging Judicial Trends

 Patients As Consumers And Human Rights
 Avenues For Redressal Of Patients Complaints
 Consumer Protection Act And Its Application To Medical Profession
 Medical Negligence
 The Bolam Rule
 Liability Of Doctors For Medical Negligence: The Judicial Approach To The Issue
 Medical Negligence And The Judiciary: The Way Forward
 Fertility Tourism:
 “Fertility Tourism In India Is Exploitative”
 Surrogacy:
 “Ethical Issues As To Commercial Surrogacy”
 Transnational Surrogacy And International Human Rights Law
 Why Surrogacy Is Different
 Surrogacy And Human Rights

 Reproductive Rights
 A “Right To Parent” For Gay Men?
 The Child’s Rights
 Dehumanising And Exploitative?

 Ethical Hazards And Legal Reform:
 Indian Legal Aspects Of Commercial Surrogacy:
 Professional Accountability Of Doctors:
 Accountability Of Doctors
 The Right To Health – Constitutional Perspective
 The “Right To Life” To An Unborn Child
 Right To Life Of Fetus:
 The Standard Of Professional Care

 The Medico-Legal Expert

 Medical Malpractice
 Medication Errors
 Defenses To Medical Malpractice
 Medical Profession
 What Is Health Care Fraud?
 E Distinction Between Health Care Fraud And Health Care Abuse
 Human Organs Transplant Laws In India
 The Transplantation Of Human Organs (Amendment) Bill, 2009
 The Transplantation Of Human Organs (Amendment) Bill,2013
 Islam, Organ Transplants, And Organs Trafficking In The Muslim World:

 Paving A Path For Solutions
 Regional Dimensions Of The Global Trade:
 Organs Trafficking In The Middle East And Muslim World
 Conclusion
 My opinion

INTRODUCTION
Medicine, Ethics and the Law
This short paper is all about the Medicine, professional Ethics, Medical Negligence,
surrogacy, fertility tourism, professional accountability of doctors, right to life, organ
transplant and the medicinal Law throughout the India. It talks about the rules governing
professions, the concept of medical negligence and the issues around informed consent in
India.
MEDICAL NEGLIGENCE AND CONSUMER RIGHTS:
EMERGING JUDICIAL TRENDS
The medical profession is one of the noblest professions in the world. However, corporatization and
commercialization of medical profession has made it like any other business and the medical
profession is increasingly being guided by the profit motive rather than that of service. Such a
situation gave rise to unethical practices and negligence. When business motive comes to the force,
service to the patients takes place as last row. Today like every thing in the society Hippocrates
noble profession has become commercialized and people are not only suspicious but downright
sceptical of their practice. Therefore, if there is a rashness or negligence on the part of the doctor
while treating a patient he is being made liable under the Consumer Protection Act, 1986.
The Consumer Protection Act, 1986 is an innovation in India for the better protection of the
consumers. The praiseworthy objective of the enactment is to provide inexpensive and quick justice
without any delay. There are number of laws which protect the rights of consumers, but each Act
deals with a special class of consumers and that too, with regards to only a particular area of
consumer behaviour. Whereas the Consumer Protection Act is a special class of legislation, which
not only recognizes certain basic rights of consumers but also provides for an expeditious
mechanism for the redressal of their grievances. Though the Consumer Protection Act has not

changed the law of medical negligence, has created an inexpensive and speedy remedy against
medical negligence.
However, it is pertinent to note that there are divergent opinions in judgments of Supreme Court in
deciding the negligence of a doctor while treating a patient. The issue of what amounts to medical
negligence and when can a doctor be said to be negligent and the standard of care that a doctor is
expected to meet in his practice has been the topic of a number of landmark judgments of the
Judiciary.
The present paper focuses on medical negligence and the role of higher judiciary in protecting the
rights of consumers along with divergent opinions delivered by the Supreme Court of India with
respect to liability of the doctors for their negligence.
Patients as consumers and human rights
Health is a subject closer to everybody’s heart. Medical profession contributes to the healthcare to
the extent of only 25-30%. Approximately 70% input in the health care is by various sectors like the
pharmaceutical industry, Hospitals, blood banks etc. This 70% inputs are mostly managed on a
commercial basis and therefore patient as a consumer must have certain rights. These rights of a
patient as a consumer are more important than the rights of a general consumer because usually has
very little choice in the treatment.
Patients rights emanate from the human rights, constitutional rights, civil rights, consumer rights,
codes of ethics of medical and nursing profession. The Indian constitution bestows certain rights on
the citizens. One Of them is Right to Life.
Right to a healthy life is an integral part of the right to life. The government in the country has
legislates certain laws to protect the citizens. Some of these are 1
1
Changing Paradigm Of Consumer Protection- Patirnts As Consumer And Human Rights Pg 77 IJLS vol .
04, No. 04, August 2013

1. The Drugs and Cosmetics Act

2. The Medical Council Act
3. The Consumer Protection Act
The codes of ethics of medical and nursing councils define the duties of the doctors and nurses
towards the patients. Thus these duties from the basis of patients rights.
These codes of ethics are based on various international codes like2
1. The Nuremberg Code

2. The world medical Association’s declaration of Geneva
3. The world medical Association’s declaration of Helsinki
4. The world medical Association’s declaration of Tokyo etc.
The rights of patient cover a wide spectrum of ill as well as healthy persons.
Avenues For Redressal Of Patients Complaints
a. Medical Councils: medical councils are statutory bodies created by an act of the
parliament/legislation to monitor/govern the medical profession. The council has only ethical
jurisdiction. The council cannot give compensation to the complainant or punish the doctors. The
only punishment the councils are empowered to give is to cancel the registration either temporarily
or permanently.
b. Consumer Courts: the complaints against the medical profession can be filed in the consumer
courts. These courts can only give compensation. All the complaints against the doctor and the
hospitals should have an expert certificate/opinion from the doctors of concerned specialty, stating
2
Pg 77 IJLS vol . 04, No. 04, August 2013

that the complaint is prima facie true and needs further investigations. In the absence of such
certificate the complaints against the doctors/hospital are usually not admitted.
It must also be remembered that a fine of Rs.10,000/- can be imposed on the complainant under the
consumer protection act if the complaint is found to be vexatious/false.
c. Civil Courts: the redressal of the patient’s complaints through the civil court is lengthy time
consuming and many times counterproductive. There is a tremendous backlog of cases and the cases
take anywhere between 10 to 15 years to complete.
d. Criminal Courts: the redressal of the complaints under the criminal law is not very common and
recourse to this method should be taken only in exceptional cases.

Consumer Protection Act And Its Application To Medical Profession
The fast pace of commercialization and globalization has its effect on all spheres of life and the
medical profession is no exception to these phenomena. As a result, the doctor patient relationship
has deteriorated considerably.
The patient doctor relational dimer has become complex with the hierarchical or fiduciary manner
changing to an equal or un-equal relationship. Trust and control are interchangeable, leading to
increased patient requirements for disclosure and expectations of a cafeteria approach in diagnoses
and management of his/her bodily condition. From any mismatch, there is a potential for medical
litigation. In this context, the rise of global consumerism, the explosion of information available on
the internet, and the changed manner of the medical profession from being shrouded in mystic /
ceremony to trifurcation of medical services to doctoral diagnoses and management, ancillary
pharmacy industry, and paramedical services like nursing, counselling and the new age quackery
have contributed to this dimer.
It is estimated that 98,000 people die every year in the United States because of mistakes committed
by medical professionals. One can well imagine the figures in India. However, the law does not aim
to punish all acts of a doctor that caused injury to a patient. It is concerned only with negligent acts.
Medical negligence arises from an act or omission by a medical practitioner, which no reasonably
competent and careful practitioner would have committed. What is expected of a medical
practitioner is 'reasonably skilful behaviour' adopting the 'ordinary skills' and practices of the
profession with 'ordinary care’. There is, however, room for ambiguity, and judicial interpretation as
what is 'reasonable' and 'ordinary' is a question of fact. Essentially, doctors are generally bound to
exercise an ordinary degree of care and not the highest possible degree of care. If a medical
practitioner has taken reasonable care, then he cannot be held liable. A mere difference in opinion is
not a ground for fastening liability on doctor.
Doctors' duties to their patients are clear. They must decide whether or not to undertake the case;
they must decide what treatment to give, and they must take care in the administration of that
treatment.

A breach of any of these duties gives the patient a right to action for negligence
 Liability under the Consumer Protection Act

 Liability under the Tort law
 Liability under the Criminal law (IPC)
The very nature of the medical profession makes it vulnerable to civil and criminal suits. Many suits
are filed to harass doctors, or are filed to evade the payment of bills.
In the post V P Shantha3 era it is difficult for doctors to shun responsibility. It is also easier for
people to force negligent doctors to Consumer Protection Forums.
It is important to punish guilty doctors. It is also important to protect doctors who act in good faith
from harassment. The courts must strike a perfect balance. The Supreme Court once observed that
the doctor's job is to protect life and the courts should assist in this cause as far as possible. It is also
the duty of the courts to see that doctors are not harassed in the course of performance of such dut
Landmark Judgments
Indian Medical Association V. V P Shantha and others is an important judgment. As a result of his
judgment, medical profession has been brought under the section 2(1)(o) of CPA,1986.
It specifically mentions the categories of doctors and hospitals that are brought under the section.
Further, this judgment concedes that the summary prescribed by the CPA would sit only glaring case
of negligence and in complaints involving complicated issues requiring recording of the evidence of
experts, the complainant can be asked to approach the civil courts. Also, this judgment says that the
deficiency in service means only negligence in a medical negligence case and it would be
determined under CPA by applting the same test as is applied in an action for damages for
negligence in a civil court.
3
Indian Medical Association V. V P Shantha and others

Medical Negligence
The issues relating to civil liability of the doctors assume special significance in the present context,
due to commercialization of medical profession. The action against personal injury caused to the
complainant at the hands of doctors requires the proof of legal duty to take care, breach of such duty
and consequential damage suffered by the complainant. The Supreme Court in A.S. Mittal v. State of
U.P.4 held that “a mistake by a medical practitioner which no reasonably competent and careful
practitioner would have committed is negligent one”. A medical practitioner can be said to be
reasonably competent and careful when he adopts the ordinary skills and normal practices of the
profession. Law does not expect very high or very low standard from a person who renders
professional services. In Dr. L.B.Joshi v. T.B.Golbole5the Court held that, “the duties which a doctor
owes to his patients are:
i) A duty of care in deciding whether to undertake the case;
ii) A duty of care in deciding what treatment to give; and
iii) A duty of care in administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient”.
Medical Negligence: The Bolam Rule
In United Kingdom the issue of medical negligence was considered in great detail in the case of
Bolam v. Friern Hospital Management Committee.6 This case is seminal authority for determining
the standard of care required from medical professionals. In this case the Court held that “in the case
of a medical man negligence means failure to act in accordance with the standards of reasonably
competent medical men at that time and that there may be one or more perfectly proper standards
and if the medical man conforms with one of those proper standards he is not negligent”. Hence, the
Courts there opined that a doctor is not guilty of negligence if he has acted in accordance with the
4
AIR 1989 SC 1570
5
AIR 1969 SC 128
6
(1957)1 WLR 582

practice accepted as proper by a responsible body of medical men. The Court will take into
consideration what other medical professionals do in similar situation while deciding medical
negligence. Hence, Bolam case laid down a modest and “ordinary skilled professional standard of
care” for determining the liability of the doctors.
Liability of Doctors for Medical Negligence: The Judicial Approach to the Issue
In deciding the cases of medical negligence the Supreme Court of India has followed liberal
approach in some cases while it preferred to follow the strict liability rule in some other cases. The
approach of Judiciary in deciding with the cases of medical negligence and liability of the doctors
has been described as “Two lines of judicial authorities on medical negligence liability in India” by
B.B.Pande. He opined that “in India in respect of claims for medical negligence the judicial rulings
of the Supreme Court of India and of the State High Courts can be put in two distinct lines. The first
line, that favours a limited liability based on ‘ordinary professional standard’ as laid down in Bolam
case. The second line, that favours expanding the sphere of medical profession’s liability and
demanding a higher duty of care towards the patient and his relatives, particularly where medical
expertise is provided on a commercial basis”.7
The Supreme Court while adopting a liberal approach, has approved the rule of “ordinary skilled
professional standard of care” laid down in Bolam case in Dr. Suresh Gupta v. Govt. of N.C.T of
Delhi,8State of Punjab v. Shiv Ram9and Jacob Matthew v. Union of India10 cases. These cases are
some of the instances where the court has preferred to follow liberal approach in the matters of
medical negligence. In Jacob Matthew v. Union of India11 the Supreme Court held that “no sensible
professional would intentionally commit an act or omission which would result in harm or injury to
the patient since the professional reputation of the professional would be at stake”.
In Martin F. D’Souza v. Mohd. Ishaq12 the Supreme Court has once again approving the Bolam rule
held that “judges are not experts in medical science, rather they are lay men. This itself often makes
7
B.B. Pande, ‘Why Indian Patients do not deserve the Highest Expert Skills from Doctors?’(2009) 4 SCC
21
8
(2004) 6 SCC 422
9
(2005) 7 SCC 1
10
(2009) 3 SCC 1
11
Ibid.

it somewhat difficult for them to decide cases relating to medical negligence... While doctors who
cause death or agony due to medical negligence should certainly be penalized, it must also be
remembered that like all professionals doctors too can make errors of judgment but if they are
punished for this no doctor can practice his vocation with equanimity. Indiscriminative proceedings
and decisions against doctors are counterproductive and serve society no good. They inhibit the free
exercise of judgment by a professional in a particular situation”. And the Supreme Court has further
directed that, “whenever a complaint received against a doctor or hospital by the consumer fora or
by the Criminal Court then before issuing notice to the doctor or hospital against whom the
complaint was made the consumer fora or Criminal Court should first refer the matter to a competent
doctor or committee of doctors, specialized in the field relating to which the medical negligence is
attributed and only after that doctor or committee reports that there is prima facie case of medical
negligence should notice be then issued to the concerned doctor or hospital. This is necessary to
avoid harassment to doctors who may not be ultimately found to be negligent”. Thus in this case the
Supreme Court not only has taken very liberal approach but also directed consumer fora to take the
opinion of the medical experts before initiating the proceedings in medical negligence cases. This
judgment has far reaching effects in deciding medical negligence cases. If the expert committee
opines that there is no negligence on the part of the doctor or hospital the victim’s remedy will
become vein as, he has no chance to say anything in favour of his case.
On the other hand the Supreme Court has taken stringent action in some medical negligence cases
following ‘higher duty of care rule’. In cases of grave professional negligence like, failure on the
part of the doctor to inform or warn the patient about the risks involved in the treatment the court has
not followed the rule laid down in Bolam case. The Supreme Court even applied the doctrine of res
ipsa loquitur in some cases where the negligence is manifest. Dr. Khusaldas Pammandas13,
Achutrao Haribhau Khodwa14, and Spring Meadows Hospitals v. Harjot Ahluwalia15 are some
illustrative cases where the Supreme Court has applied the ‘higher duty of care rule’ in deciding the
negligence of the doctors. Recently the Supreme Court refrained to take a liberal approach in
establishing medical negligence and emphasized on accountability and higher duty of care in
12
(2005) 6 SCC 1
13
Dr. Khusaldas Pammandas v.State of M.P., AIR 1960 50
14
Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634
15
(1998) 4 SCC 39

medical profession in B. Jagadish v. State of A.P.16In a historic judgment in Nizam’s Institute of

Medical Sciences v. Prasanth S. Dhananka17 the Supreme Court held that “moreover, in a case
involving medical negligence, once the initial burden has been discharged by the complainant by
making out a case of negligence on the part of the hospital or doctor concerned, the onus then shifts
on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there
was no lack of care or diligence”. In this case the Court awarded Rs. 1 crore as compensation to the
victim of medical negligence.
V. Kishan Rao Case
In its landmark judgment in V. Kishan Rao v. Nikhil Super Speciality Hospital 18the Supreme Court
recently held that ‘there cannot be a mechanical or straitjacket approach that each and every medical
negligence case must be referred to experts for evidence’ and declared that the judgment rendered in
Martin F.D’Souza v. Mohd. Ishfaq119is per incuriam. This judgment is a welcome decision for better
achievement of the objectives of the Consumer Protection Act, 1986.
In V. Kishan Rao v. Nikhil Super Speciality Hospital20 the Complaint’s wife got admitted in
Respondent hospital, who was suffering from fever and chills. She was wrongly treated for typhoid
instead of malaria for four days. As a result of said wrong treatment she died. On the complaint,
District Forum found that there was negligence on the part of the hospital and awarded
compensation. The order of the District Forum was reversed by the State Commission and as well by
the National Commission. But the Supreme Court set aside the orders passed by the State
Commission and National Commission and restored the order passed by the District Commission. In
this case the Supreme Court held that “in the context of such jurisprudential thinking in England,
time has come for this Court also to reconsider the parameters set down in Bolam test as a guide to
decide cases in medical negligence and specially in view of Article 21 of the Constitution which
encompasses within its guarantee, a right to medical treatment and medical care”. While
16
(2009) 1 SCC 681
17
(2009) 6 SCC 1
18
(2010) 5 SCC 513
19
(2009) 3 SCC 1
20
Supra n.15

pronouncing the judgment rendered in Martin F.D’Souza per incuriam, the Supreme Court further
held that “this Court is constraint to take the view that the general directions given in para 106 in
D’Souza cannot be treated as a binding precedent and those directions must be confirmed to the
particular facts of that case”. And the further held that, “the larger Bench decision in J.J. Merchant
(Dr)21 has not been noted in D’Souza. Apart from that, the directions in para 106 in D’Souza are
contrary to the provisions of the governing statute. That is why this Court cannot accept those
directions as constituting a binding precedent in cases of medical negligence before the Consumer
Fora”.22
The Supreme Court further declared that “this Court makes it clear that in these matters no
mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a
decision is taken that in all cases medical negligence has to be proved on the basis of expert
evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily
burdened and in many cases such remedy would be illusory”. 23The consequence of the judgment in
V.Kihan Rao24 is that now the Consumer Fora in the country need not necessarily refer the cases of
medical negligence to expert committee before issuing the notice to the doctor or hospital accused of
medical negligence and the problems arising from the directions given in the Martin F. D’souza25
case will be put to an end.
21
J.J Merchant (Dr) v. Shrinath Chatruvedi, (2002) 6 SCC 635
22
(2010) 5 SCC 533
23
Ibid, p.522
24
Supra n.19
25
Supra n. 9

Medical Negligence and the Judiciary: The way forward
The cordial relationship between doctor and patient has undergone drastic changes due to
corporatization of medical profession, resulting in commercialization of the noble profession, much
against the letter and the spirit of the Hippocratic Oath. Though rapid advancements in medical
science and technology have proved to be efficacious tools for the doctors in the better diagnosis and
treatment of the patients, they have equally become tools for the commercial exploitation of the
patients.
The development of law pertaining to professional misconduct and negligence is far from
satisfactory. The legislations are not adequate and do not cover the entire field of medical
negligence. In a situation where medical services are commercialized applying the rule of “ordinary
skilled professional standard of care” laid down in Bolam’s case in establishing the medical
negligence may not do the proper justice to the injured patients.
Finally, it is submitted that the judiciary while deciding medical negligence cases, more incline may
be showed towards injured patients ensuring them higher medical skills at the hand of doctors rather
applying “ordinary skilled” rule. In this way the V. Kihan Rao’s2326case is a welcome judgment. To
conclude it is useful to cite an observation of former Chief Justice K.G. Balakrishnan in his address
at National Seminar on the ‘Human
Right to Health’27that “the right to health cannot be conceived of as a traditional right enforceable
against the state. Instead, it has to be formulated and acknowledged as a positive right at a global
level one which all of us have an interest in protecting and advancing”.
Why Are Rules Necessary
There are three fundamental reasons why societies develop rules to govern behaviour. The
first is social cohesion which allows a group to work together for identifiable common aims.
This is absolutely fundamental to the development of a profession which, by definition, is a
group of individuals who have, and act on, a common body of knowledge.
26
Supra n.19
27
(2009)1 SCC 8

The group develops its own internal rules which govern behaviour and form the basis of their
professional ethics. It is important to note that ethical considerations laid down by a
profession are not necessarily binding, and decisions made by a governing body such as the
General Medical Council are subject to review by the courts. For instance, decisions made by
the General Medical Council to suspend individuals from practice have been reversed in the
High Court.
Secondly, rules are required to maintain order in society. These aim to determine “right” or
“wrong” behaviour and as such morally define a society. Individuals with different views may
therefore by coerced into “acceptable” behaviour for the common good.
Finally, rules exist to protect individuals, affording them the opportunity for personal growth
and development. The rule of law is used to balance competing interests between individuals
or between individuals and society.
The Basis of the Rules
There are three mains sources of rules:
• Societal or custom
• Ethical or moral
• Legal or statute
Societal rules come from custom and practice and can be defined as the expectations of the
ordinary person in the street. They may govern areas such as how a service is delivered, the
behaviour and perhaps code of dress of those delivering it such as a nurse’s uniform or the
nature of food served within a hospital. None of these are necessary for good medicine.
Custom and practice evolves with society, but necessarily slowly follows trends to give the
impression of authority, stability and dependability. As well as this, society may form a
particular view as to whether or not some behaviour is acceptable. An example would be the
attitude of society in general or a proportion of them towards abortion. Within the profession
of medicine as a group abortion is accepted under specific circumstances and this is also

enshrined in law. However some elements of society feel that abortion under any
circumstances is not justified.
Ethical rules are set within the profession. A very common issue would be relationships with
patients. There exists no moral or legal bar to liaisons between unmarried persons. However,
a close social relationship between a doctor and a patient is not acceptable and leads to
sanction by the profession.
Finally, there are those situations which would be found acceptable from a societal or ethical
point of view and yet be illegal.
For example, an ambulance going faster than the speed limit to an emergency situation. From
a societal or ethical point of view it may be regarded as appropriate in order to save life, but
being in a hurry is not a legal defence if an accident ensues.

Fertility Tourism
“Fertility tourism in India is exploitative”
It is estimated that 9% of couples worldwide are infertile. Although it remains difficult, women
unable to conceive naturally, or who are past their reproductive prime, are still able to have a child.
To do so, many seek high-tech, low cost help from India. Long waiting times related to a shortage of
eggs and sperm in the UK and elsewhere, the lack of donor anonymity, over-regulation, high costs
and poor experiences of treatment are cited as reasons for going abroad for help. In India,
‘commissioning couples’ can expect high-quality care, cost effective treatment, a high success rate
and few legal hurdles. Donor eggs, sperm, and embryos are available, and women can become
pregnant through IVF or can hire a surrogate - a woman who bears a child, genetically unrelated to
herself whom she will give up on delivery.
But while demand for such services keeps growing, so too do the legal, moral and ethical concerns
related to its practice. Dubbed the ‘wild, wild west of medicine’ by bioethicist Arthur Caplan, many
argue that the unregulated, global nature of commercial surrogacy and egg and sperm donation is
highly vulnerable to exploitative practices. In India the Assisted Reproductive Technologies
(Regulation) Bill - 2010, is just the latest attempt to regulate fertility services that some fear are
spinning out of control. Should we celebrate the material and emotional gains brought about by
fertility tourism, for surrogates, donors and commissioning parents alike? Or do we need to be more
circumspect about the thriving ‘rent-a-womb’ market and the ‘outsourcing of pregnancy’?

Surrogacy:
“Ethical Issues As To Commercial Surrogacy”
In general, the ethics behind the commercial surrogacy is that it is helpful for those women who are
naturally not in a position to become a mother. It helps them to enjoy the motherhood. At the same
time, those families which are having the problem of lack of peace due to absence of child can
overcome the said quandary and for achieving this goal commercial surrogacy is no doubt a way
out. But the point is what the ethical issues are as to commercial surrogacy. Many argue that
surrogate arrangements depersonalize reproduction and create a separation of genetic, gestational,
and social parenthood. Others argue that there is a change in motives for creating children.
According to them children are not conceived for their own sakes, but for another’s benefit. 28 In
short, following are some of the ethical issues as to commercial surrogacy :
 What is the degree of stress on the couple and especially on the surrogate mother?
 Can true informed consent ever be given by the surrogate, and can anyone predict the emotions
associated with relinquishing a child?
 What are the possible adverse psychological effects on the child? What identity crisis might
ensue, and will there be a desire on the part of the child to know his/her gestational mother?
 Will surrogate arrangements be used not only by infertile couples but also for the sake of
convenience, or by single men or women?
 Should the surrogate be paid?
 Would this lead to commercialization of surrogacy and expose the surrogate mother to possible
exploitation?
 What happens when no one wants a handicapped newborn? Should the couple and surrogate
remain unknown to each other?
 Should the child be told?
 What kinds of records should be kept, and should the child have access to them?
 What kind of medical and psychological screening should be provided to all parties? 29
Egg donation and surrogacy remain the most controversial and talked about practices within the
fertility tourism debate, both because of the potential health risks posed to the donor and surrogate,
28
Meinke, Sue A. 1988. Surrogate Motherhood : Ethical and Legal Issues. [online] Available at :
http://bioethics.georgetown.edu/publications/scopenotes/sn6.pdf [Accessed Date:18thOctober,2011]
29
Ibid.

and because of the moral ambivalence involved. Both involve highly technical and complicated
clinical procedures: egg donation is the process by which a woman provides one or several eggs for
the purpose of assisted reproduction. Donors are injected with a follicle-stimulating hormone, which
increases ovarian activity, producing more eggs than during a normal cycle - often between 10 and
15. Surrogacy refers to the process in which a woman carries the baby in her womb ‘for’ another
couple. Through in vitro fertilisation (IVF), an embryo created from the sperm or egg of donors or
from the couple wanting a baby is implanted in the surrogate’s womb. In India, surrogate’s own
eggs are not used, to ensure there is no biological link between her and the baby. Rules stipulate that
a surrogate must already have a child of her own to minimise the potential negative emotional
consequences of giving up the baby at birth. The ART Bill will allow a woman to act as a surrogate
for 3 successful births in her lifetime. While acknowledging that ‘success rate’ is a difficult thing to
define and prone to exaggeration, experts such as Shivani Sachdev Gour suggest that pregnancy
rates are higher in India than elsewhere because of healthier lifestyles and the relative leniency of
surrogacy laws.

Transnational Surrogacy and International Human Rights Law
Surrogacy refers to the process through which a woman intentionally becomes pregnant with
a baby that she does not intend to keep. 30 Rather, she is carrying the baby for its intended
parent or parents, usually because the parent is unable to do so without her. 31 In traditional
surrogacy, the surrogate contributes her own egg, which is artificially inseminated with the
donor’s sperm.32 In gestational surrogacy, a fertilized egg is implanted in the surrogate. 33
Because the overwhelming majority of surrogates no longer use their own eggs, in this
Article, “surrogacy” will refer to gestational surrogacy.34 Surrogacy may be altruistic, in
which the surrogate is not paid for her labor, 35 or commercial, in which she is.36 Surrogacy
may also use donor sperm, in which case the intended parents have no biological relationship
to the baby or babies.37 There may be multiple surrogates, fathers, mothers, donors, and
babies. It can get very complicated. Surrogacy exposes parenthood, not as a biological fact,
but as a legally and socially constructed status with responsibilities and obligations as well as
benefits.
As set out in a recent report by the Permanent Bureau at the Hague Conference on
Private International Law, commercial surrogacy has been banned in many nation states. 38 In
a minority of states, it is allowed and regulated, and in some states, it is completely
30
. In the Matter of Baby M, 537 N.J. 396, 410 (1988).
31
. Id.
32
. Id.
33
. JANET L. DOLGIN & LOIS L. SHEPHERD, BIOETHICS AND THE LAW 69 (2nd ed. 2009).
34
. J. Herbie DiFonzo & Ruth C. Stern, The Children of Baby M., 39 CAP. U. L. REV. 345, 355 (2011) (noting that in
2011, “95% of surrogates carry embryos created by genetic materials other than their own.”); Marsha Garrison, Law Making
for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 912 (2000)
(noting that “there is no sexual analog to this particular form of technological conception.”).
35.
An altruistic surrogate may be the sister of an intended parent who would otherwise be unable to have a biologically
related child. See, e.g., DOLGIN & SHEPHERD, supra note 4, at 172.
36.
Medical expenses are generally covered in commercial surrogacy. MAGDALINA GUGUCHEVA, SURROGACY IN
AMERICA 3 (Council for Responsible Genetics 2010), available at
http://www.councilforresponsiblegenetics.org/pageDocuments/KAEVEJ0A1M.pdf (last visited Mar. 13, 2012) (describing
commercial surrogacy arrangements); Melanie Thernstrom, My Futuristic Insta-Family, N.Y. TIMES, Jan. 2, 2011, at 34,
available at http://www.nytimes.com/2011/01/02/magazine/02babymaking-t.html?pagewanted=all (last visited Mar. 13, 2012)
(describing financial arrangements in a commercial surrogacy arrangement). While it seems likely that they are also covered in
altruistic surrogacy; only anecdotal evidence is available.
37.
For a detailed account of some of the major procedures available, see Lisa C. Ikemoto, Reproductive Tourism:
Equality Concerns in the Global Market for Fertility Services, 27 LAW & INEQ. 277, 283 (2009).
38
. Surrogacy has been banned in much of Europe, for example, usually on the ground that it commodifies women. See
Arlie Hochschild, Childbirth at the Global Crossroads, 20 AMERICAN PROSPECT, Sept. 19, 2009, at 25, 27 (stating that
surrogacy is banned in China, New York and much of Europe), available at http://prospect.org/article/childbirth-global-
crossroads-0 (last visited Mar. 13, 2012); Hague Conference on Private Int’l Law, Private International Law Issues
Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements, at 3, Prel. Doc. No.
11 (Mar. 2011), available at http://www.hcch.net/upload/wop/genaff2011pd11e.pdf (last visited Mar. 13, 2012) [hereinafter
Hague Conf. on Private Int’l Law].

unregulated. As the Hague Report notes, this has produced a booming business in
transnational surrogacy.39 In India alone, reproductive tourism is a $400 to $500 million per
year business.40 In addition to the monetary costs, there are human costs. Transnational
surrogacy results in complex, and often conflicting, rules regarding basic family law issues of
maternity, paternity, custody, visitation, and children’s rights.41
A similarly unsettled situation exists among the states in the United States. While the
U.S. Constitution requires states to give full faith and credit to the judgments of sister states,
there has always been a public policy exception in family law. 42 That is, states have refused
to give full faith and credit to judgments of sister states that offended their own public policy,
such as marriage between first cousins. The federal Defense of Marriage Act, along with the
similar acts passed in many states, extend this to recognition of same-sex marriages43.
Like international surrogacy, surrogacy in America encompasses a broad range of

approaches, from supportive states, such as California, 44 to states in which all surrogacy
contracts are barred and criminal sanctions may be imposed, as in Michigan. 45 Unlike
surrogates in much of the rest of the world, surrogates in the United States are unlikely to be
trafficked, enslaved, or held to onerous contracts.46 Indeed, surrogacy in America seems to be
increasingly open.47 Transnational surrogacy, in contrast, seems to be increasingly corporate,
drawing on a wide range of domestic laws, including some notably lax domestic laws and
dramatically disparate economic circumstances, to create new families.48
Part I of this Article introduces the subject and explains why the domestic family laws
of the participating states are inadequate to address it. Part II explains how international
39
. Hague Conf. on Private Int’l Law, supra note 9, at 6. Transnational surrogacy, as used in this Article, refers to
surrogacy arrangements in which one or more of the parties are nationals of different nation states.
40.
Id.; Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE L. REV. 203, 225
(2009).
41
. Hague Conf. on Private Int’l Law, supra note 9, at 3–4.
42
. IRA M. ELLMAN & PAUL M. KURTZ, FAMILY LAW: CASES, TEXT, PROBLEMS 175 (5th ed. 2010).
43.
Defense of Marriage Act, 28 U.S.C. § 1738C (1996).
44.
Johnson v. Calvert, 851 P.2d 776, 778 (1993); CAL. FAM. CODE § 7606 (2012).
45.
MICH. COMP. LAWS § 722.857 (1988).
46
. This is not to suggest that such practices are unknown in this country. They are not, however, appealing to middle
class Americans seeking surrogates. See, e.g., Melanie Thernstrom, supra note 7, at 28.
47.
Id.
48.
For an insightful exploration, see Richard F. Storrow, Quests for Conception: Fertility Tourists, Globalization and
Feminist Legal Theory, 57 HASTINGS L.J. 295, 327 (2005).

human rights law provides some useful guidelines, especially three major human rights
treaties:49
1) The International Covenant on Economic, Social and Cultural Rights;50

2) The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW);51 and
3) The Convention on the Rights of the Child (CRC)52.
While none of these treaties explicitly address surrogacy, they each address rights
crucial in this context, including the right to health, 53 the right to support,54 the right to know
one’s origins,55 and the right to a family.56 The argument here is that, at the very least, where
surrogacy is allowed, the protections of well-established human rights norms should be
assured. In some cases, this may be accomplished through regulations 57 or contractual
provisions, such as the assurance for the gestational mother of free pre-natal care. In other
cases, this may be more difficult, such as treatment for as yet unknown conditions that may
result from the hormonal treatments necessary for surrogacy. If, for any reason, such
assurances are impossible, surrogacy should be barred as a violation of human rights.
Because there is no human “right to a child,” 58 even those who can only have a
genetically-related child with the help of a surrogate, including single gay men and gay
49
. For some of the reasons for this refusal, see Catherine Powell, Lifting our Veil of Ignorance: Culture,
Constitutionalism, and Women’s Human Rights in Post-September 11 America, 57 HASTINGS L.J. 331, 375 (2005); Barbara
Stark, At Last? Ratification of the Economic Covenant as a Congressional-Executive Agreement , 20 TRANSNAT’L L. &
CONTEMP. PROBS. 107, 108 (2011).
50.
G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, at 49 (Jan. 3, 1976), available at
http://www1.umn.edu/humanrts/instree/b2esc.htm (last visited Mar. 18, 2012) [hereinafter International Covenant].
51.
Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res 34/180, art. 1, U.N.
GAOR, Supp. No. 46, U.N. Doc. A/34/46, at 193 (Sept. 3, 1981) [hereinafter CEDAW].
52
. See generally Convention on the Rights of the Child, G.A. Res. 44/25, 61st plen. mtg., U.N. Doc. A/Res/44/25
(Nov. 20, 1980) (entered into force Sept. 2, 1990) [hereinafter CRC].
53.
International Covenant, supra note 21, art. 12.
54
. Id. art. 10.
55
. CRC, supra note 23, art. 7.
56
. Id.
57.
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, 72 LAW & CONTEMP. PROBS. 109, 146 (2009)
(noting that, “well-designed regulation can greatly mitigate most of the potential tangible harms of surrogacy.”).
58.
Those instruments that contemplate parenthood focus instead on limiting state interference with reproductive rights. See, e.g., CEDAW, supra
note 22, art. 11.2 (measures to be taken by states to “prevent discrimination … on the grounds of marriage or maternity and to
ensure [women’s] effective right to work.” ); id. art. 11(2) (requiring the state to "ensure access to healthcare services,
including those related to family planning" and, more specifically, to "ensure to women appropriate services in connection with
pregnancy, confinement and the post-natal period, granting free services when necessary, as well as adequate nutrition during
pregnancy and lactation."); id. art. 12 (reiterating the right to family planning services for rural women in particular.). But see
Part II.A. Reproductive Rights (suggesting support for an argument against state interference with intending parents’ efforts to
“achieve their reproductive goals.”).

couples, have no basis for a claim. Once a child has been born, however–assuming the child
is not the result of a coerced pregnancy or a similarly egregious violation of human rights–a
growing international jurisprudence supports the right of that child’s gay father, or fathers, to
raise her.59
The usefulness of private international law to resolve disputes arising out of surrogacy
is similarly problematic. Fundamental considerations of judicial comity, in which the courts
of one state defer to the judgment of another, are trumped by public policy in this context. 60
Thus, notwithstanding the virtually universal concern for the children produced through
surrogacy, some states prohibiting surrogacy refuse to grant such children citizenship,
because they fear that doing so would only encourage the prohibited practice. 61 As the
Permanent Bureau notes, this plainly calls for further study.62 While the range of applicable
laws regarding surrogacy complicates—and may even preclude—harmonization, it should be
noted that the legality of surrogacy does not necessarily correspond to its prevalence in a
particular state. Roughly 5% of gestational surrogacy in vitro fertilization (IVF) procedures
in the United States take place in New York, for example, where surrogacy contracts are
void.63
Why Surrogacy is Different

Pre-existing family law is inadequate to address surrogacy, in part because of the
multiple parents, and in part because of the breakdown in traditional parenting functions. 64
State laws governing parentage, for example, generally provide that a woman giving birth is
the child’s legal mother.65 The birth mother does not lose her status as legal mother until and
unless she voluntarily surrenders the baby.66 As a matter of law, a child cannot be
59
. Barbara Stark, The Women’s Convention, Reproductive Rights, and the Reproduction of Gender, 18 DUKE J. GENDER
L. & POL'Y 261, 274–78 (2011).
60
. Hague Conf. on Private Int’l Law, supra note 9, at 10.
61
. Id.
62
. Id. at 22.
63
. GUGUCHEVA, supra note 7, at 15.
64.
Id. at 26 (noting that, commercial surrogates are generally paid from $12,000 to $25,000 for their services. This
averages out to roughly $.50 per hour). Fertility Law, AM. BAR ASSOC.,
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/erickson.html (last
visited Mar. 18, 2012) (The payment is for the surrogate’s services; if it were for the baby it would amount to baby-selling,
which is illegal everywhere.).
65.
ARK. CODE ANN. § 9-10-201(c)(2)(2008) (West 2011) (stating that the surrogate mother is presumed to be the
natural mother of the child and this information is listed on the birth certificate); KAN. STAT. ANN. § 11-38-1113 (West 2011)
(stating that the mother of the child is the one who gives birth to the child).
66
. Or is determined by an appropriate court to be so unfit, and so incapable of becoming fit that her parental rights are
legally terminated. See, e.g., Santosky II v. Kramer, 102 S. Ct. 1388, 1390 (1982) (“[T]he State may terminate, over parental
objection, the rights of parents in their natural child upon a finding that the child is permanently neglected.”).

surrendered for adoption before birth.67 The premise is that a mother cannot be certain that
she wants to surrender the baby until he or she arrives. 68 For this reason, several states have
decided that traditional surrogacy contracts are unenforceable. 69 Rather, the surrogate cannot
be required to surrender a baby on the ground that she agreed to do so before it was born..
There has been considerable commentary since the baby m70 case almost twenty-five
years ago.71 those who have addressed surrogacy have generally focused on the most
vulnerable, starting with the infant.72 while at least one commentator73 rejects the “best
interest of the child test” itself as inapplicable in this context, most raise more concrete,
specific questions. who is legally responsible? what if the intending parents split up? what if
they change their minds or die? what if the baby is premature or has health problems? what
if the baby has health problems resulting from the surrogate’s drug use or alcohol intake
during pregnancy? how will the child deal with her unusual origins?
Commentators are also concerned about protecting presumably poorer, less educated
surrogates from exploitation. dorothy roberts has pointed out the risks, especially high once
gestational surrogacy allows a black surrogate to carry a white egg, of exploiting women of
color.74 in johnson v. calvert, the california court held that the black gestational surrogate had
no right to the white baby she carried. 75 what about the surrogate mother’s reproductive
67.
Hague Conf. on Private Int’l Law, Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption, Convention 29, art. 4 (May 1993), available at http://www.hcch.net/upload/conventions/txt33en.pdf
(last visited Mar. 13, 2012). See also MONT. CODE ANN. § 42-2-408 (West 2011) (stating that the relinquishment and the
consent to adoption of a child can only occur 72 hours after the child has been born); NEB. REV. STAT. § 127.070 (West 2010)
(stating that release and consent for adoption that occur before the birth of a child are invalid).
68.
Surrogate Parenting Assoc. v. Commonwealth of KY ex rel. Armstrong, 704 S.W.2d 209, 213 (1986) (“The policy . .
. is to preserve to the mother her right of choice regardless of decisions made before the birth of the child.”).
69.
D.C. CODE § 16-402 (West 2011) (“Surrogate parenting contracts are prohibited and rendered unenforceable.”);
MICH. COMP. LAWS ANN. § 722.855 (West 2011) (“A surrogate parentage contract is void and unenforceable as contrary to
public policy.”); NEB. REV. STAT. § 21.200 (West 2011) (“A surrogate parenthood contract entered into shall be void and
unenforceable.”); N.D. CENT. CODE ANN. § 14-18-05 (West 2011) (“Any agreement in which a woman agrees to become a
surrogate . . . through assisted conception is void.”).
70.
In the Matter of Baby M, supra note 1.
71.
DiFonzo & Stern, supra note 5, at 347 (noting “the revolution in reproductive demographics that had occurred since
Baby M.”).
72
. Martha M. Ertman, What’s Wrong with a Parenthood Market? A New and Improved Theory of Commodification , in
THE REPRODUCTIVE RIGHTS READER, LAW MEDICINE, AND THE CONSTRUCTION OF MOTHERHOOD 299, 302 (Nancy
Ehrenreich ed., 2008) (Ertman identifies four negative implications of the alternative insemination (AI) market: eugenics, lack
of access for poor women, depriving children of relationship or support from biological father, and treating children like
chattel. She defends AI, arguing that these concerns “are not unique to the AI market, or because addressing the concern
would itself trigger other negative effects.”); I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96
MINN. L. REV. 423, 437–42 (2011) (explaining the problem with the best interest test in this context).
73
. Cohen, supra note 45, at 437.
74
. Dorothy Roberts, Race and the New Reproduction, in THE REPRODUCTIVE RIGHTS READER, LAW MEDICINE, AND
THE CONSTRUCTION OF MOTHERHOOD 308 (Nancy Ehrenreich, ed., 2008) (while noting that surrogacy is not the same as
slavery’s “dehumanization,” makes a powerful case that “it is the enslavement of Blacks that enables us to imagine the
commodification of human beings, and that makes the vision of fungible breeder women so real.”).
75.
Johnson, 851 P.2d at 782.

rights? like mary beth whitehead in baby m, she might not appreciate how attached she is to
the baby until it is born. on the other hand, what if the surrogate changes her mind before
birth and decides to have an abortion?
commentators have further noted that surrogates incur even greater risks and burdens
than those usually associated with pregnancy and childbirth.76 a gestational surrogate must
have her menstrual cycles precisely matched to that of the egg donor, so that her womb is
receptive to the fertilized egg just when it is ready to be implanted. 77 this requires surrogates
to ingest large doses of hormones, the long term effects of which are unknown.78
Early empirical studies provide little support for some of these arguments, at least in
canada, the united kingdom, and the united states. this research suggests that surrogates are
not necessarily poor.79 nor are they pressured into surrogacy80 or unable to separate from the
babies that they have carried.81 the surrogates in these studies are white, married, christian,82
and not especially poor. they do not feel exploited. they are glad to have the $20,000 to
76
. GUGUCHEVA, supra note 7, at 21.
77
. Amrita Pande, Not an ‘Angel,’ not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India , 16 INDIA J. GEND. STUD.
141, 147 (2009). As Pande explains:
Gestational surrogacy is a much more complex medical process than traditional surrogacy, since
the surrogate is not genetically related to the baby and her body has to be 'prepared' for artificial
pregnancy. The transfer of the embryo itself is not very difficult by the process of getting the
surrogate ready for that transfer and the weeks after that require heavy medical intervention.
First, birth-control pills and shots of hormones are required to control and suppress the surrogate's
own ovulatory cycle and then injections of estrogen are given to build her uterine lining. After
the transfer, daily injections of progesterone are administered until her body understands that it is
pregnant and can sustain the pregnancy on its own. The side effects of these medications can
include hot flashes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast
fullness, light headedness and vaginal irritation.
Id.; DiFonzo & Stern, supra note 5, at 363–64 (noting risks of “hormonally stimulated egg production.”).
78
.GUGUCHEVA, supra note 7, at 21; Pande, supra note 50, at 147.
79.
Karen Busby & Delaney Vun, Revisiting The Handmaid’s Tale: Feminist Theory Meets Empirical Research on
Surrogate Mothers, 26 CAN. J. FAM. L. 13, 44 (2009) (“Importantly, no empirical study reviewed for this paper indicates that
any surrogate mothers become involved with surrogacy because they were experiencing financial distress.”).
80.
Id. at 50 (“One consistent finding in the empirical research is that the idea of becoming a surrogate mother started
with the women themselves; there was no evidence in any study indicating that women were being pressured or coerced into
becoming surrogate mothers.”).
81
. Id. at 68.
The empirical research does not support the concerns about pre-natal maternal bonding or
emotional instability during pregnancy. Van den Akker’s 2007 study of 61 British surrogate
mothers reported that anxiety was not high during the pregnancy among surrogate mothers and
detachment is reported early and maintained throughout the pregnancy, with little post-variation
post-delivery.
Id. at 48.
This may be due, in part, to agency preferences for women who are already mothers. Clinics and
agencies report that they will only agree to work with women who have given birth because this
status increases the chances of a successful pregnancy and delivery and means that the women
have a more realistic perception of what it would mean for them to surrender a child.
Id. at 48.
82.
Busby & Vun, supra note 52, at 42 (“[S]tudies on surrogate mothers consistently show that most women who agree
to become either gratuitous or commercial surrogates are Caucasian, Christian, and in their late 20—early 30s.”).

$25,000 average fee,83 but they are surrogates for other reasons. many report that they enjoy
being pregnant. they are proud of their accomplishment, and glad that they could make such
a difference in the lives of otherwise childless couples. 84 finally, the expense of surrogacy is
also a concern. as professor roberts asks, “[b]ut can we justify devoting such exorbitant sums
to a risky, non-therapeutic procedure with an 80 percent failure rate when so many basic
health needs go unmet?”85
As Professor Garrison notes, surrogacy can easily be banned since, in contrast to
“ordinary surrogacy, gestational surrogacy invariably involves IVF, which requires the
participation of licensed medical personnel who will rarely be willing to risk their licenses by
performing illegal procedures.”86
83.
DiFonzo & Stern, supra note 5, at 357. See also GUGUCHEVA, supra note 7, at 26.
84.
Busby & Vun, supra 52, at 71.
Other longitudinal studies also showed that positive attitudes remained stable over time. Teman
concluded, following a review of the research, that “almost all of the studies . . . find, in the end,
that the overwhelming majority of surrogates do not regret their decision and they even express
feelings of pride and accomplishment.
Id.
85.
See, e.g., Roberts, supra note 47, at 317.
86
. Garrison, supra note 5, at 916.

Surrogacy and Human Rights

Reproductive Rights
Reproductive rights are relatively new in international law. The basic concept first
appeared in the final document approved by the Teheran Conference on Human Rights in
1968, which recognized the “rights to decide freely and responsibly on the number and
spacing of children and to have the access to the information, education and means to enable
them to exercise these rights.”87 It was not until the World Conference on Population in 1994
(Cairo Conference) that reproductive rights were clearly articulated. 88 Although convened to
address population issues, the participants in the Cairo Conference recognized that:
1) Family-planning programs should not involve any form of coercion;
2) Governmentally-sponsored economic incentives and disincentives were only

marginally effective; and
3) Governmental goals “should be defined in terms of unmet needs for information

and services,” rather than quotas or targets imposed on service providers.89
“The aim should be to assist couples and individuals to achieve their reproductive
goals and give them the full opportunity to exercise the right to have children by choice.” 90
The Cairo Conference recognized that reproductive rights include both “the basic right of all
couples and individuals to decide freely and responsibly the number, spacing and timing of
their children and to have the information and means to do so and the right to attain the
87.
Proc. of Teheran, Final Act of the International Conference on Human Rights, U.N. Doc. A/Conf. 32/41, at 3
(1968), available at http://www1.umn.edu/humanrts/instree/l2ptichr.htm (last visited Mar. 13, 2012). See Reed Boland, The
Environment, Population, and Women’s Human Rights, 27 ENVTL. L. 1137, 1158 (1997). Reproductive rights encompass a
wide range of activities. These include surrogacy, other forms of assisted conception, female genital surgeries, and the health
needs of women with HIV/AIDS. For a comprehensive overview, see REBECCA J. COOK, BERNARD M. DICKENS, &
MAHMOUD E. FATHALLA, REPRODUCTIVE HEALTH AND HUMAN RIGHTS, INTEGRATING MEDICINE, ETHICS, AND LAW, at v
(2003). See generally Malcolm L. Goggin, Deborah A. Orth, Ivar Bleiklie, & Christine Rothmayr, The Comparative Policy
Design Perspective, in COMPARATIVE BIOMEDICAL POLICY 1 (Ivar Bleiklie, Malcolm L. Goggin, & Christine Rothmayr eds.,
2004); Protocol to the African charter on Human and Peoples’ Rights on the Rights of Women in Africa, July 11, 2003 African
Charter on Human and Peoples’ Rights, art. 66, available at http://www.africa-
union.org/root/au/Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf (last visited Mar. 13,
2012). See CEDAW, supra note 22, arts. 4, 6 (CEDAW does not necessarily include a right to assisted conception, nor does
CEDAW necessarily bar surrogacy—on the basis that it perpetuates gender stereotypes, for example).
88.
U.N. Population Information Network, Report of the ICPD, ¶ 1.12, U.N. Doc. A/Conf.171/13 (Oct. 18, 1994),
available at http://www.un.org/popin/icpd/conference/offeng/poa.html (last visited Mar. 13, 2012) [hereinafter Rep. of the
ICPD].
89
. Id. ¶ 7.12.
90
. Id. ¶ 7.16 (A number of countries entered reservations, specifically objecting to the word “individuals” in ¶ 7.16).

highest standard of sexual and reproductive health.”91 This broad formulation reflects the
participating states’ disparate approaches to reproductive rights as well as the failure of many
states to address these rights at all.92
Reproductive rights are increasingly recognized in international human rights law. 93
These rights, including education about family planning and access to contraception, are now
widely recognized throughout the world, often in connection with the right to health. Almost
every state allows access to contraception, and several states provide contraceptives as a free
public health benefit.94
Surrogacy was not on the agenda at Cairo; it was neither supported nor condemned.
To the extent surrogacy enables those otherwise unable to “achieve their reproductive goals
and . . . have children by choice,” 95 Cairo arguably supports surrogacy. At the very least, it
would weigh against an outright government ban of the practice.96
The counterweight, of course, would be the impact on the gestational surrogate and
the resulting baby. CEDAW assures the rights of pregnant women.97 Article 11.2, for
example, sets out the measures to be taken by states to “prevent discrimination . . . on the
grounds of marriage or maternity and to ensure [women’s] effective right to work.” 98 These
measures include the prohibition of dismissal for pregnancy or maternity leave,99 maternity
leave with pay or “comparable social benefits,”100 and the “necessary supporting social
services to enable parents to combine family obligations with work responsibilities and
participation in public life, in particular through the establishment . . . of childcare
facilities.”101 Article 12 requires the state to “ensure access to healthcare services, including
91.
Id. ¶ 7.3. These goals were reiterated at the United Nations, Fourth World Conference on Women. As set out in the
Beijing Platform, the human rights of women include their right to have control over and decide freely and responsibly on
matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.
Report of the Fourth World Conference on Women, Beijing, China, Sept. 4, 1995, ¶ 96, U.N. Doc. A/Conf.177/20/Rev.1
(1996), available at http://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf (last visited Mar. 13,
2012).
92
. D. MARIANNE BLAIR ET AL., FAMILY LAW IN THE WORLD COMMUNITY 819–20 (2009) (describing the absence of
reproductive rights in Lebanon).
93.
RUTH DIXON-MUELLER, POPULATION POLICY & WOMEN’S RIGHTS, TRANSFORMING REPRODUCTIVE CHOICE 128
(1993) (describing customs in the Sahel); Abd-el Kader Boye et al., Population Council, Marriage Law and Practice in the
Sahel, in STUDIES IN FAMILY PLANNING 347 (John Bongaarts & Gary Bologh, eds., 1991).
94.
See BLAIR ET AL., supra note 65, at 794.
95.
Rep. of the ICPD, supra note 61, at ¶ 7.16.
96
. For a rigorous analysis of the concerns about commodification in this contest, see MARGARET J. RADIN, CONTESTED
COMMODITIES 140 (1996) (Radin’s analysis assumes traditional surrogacy. She notes that cases in which both would-be-
parents contribute their genetic material [may] become more prevalent in the future.).
97
. CEDAW, supra note 22, art. 1.
98
. Id. art. 11.
99.
Id.
100.
Id.
101.
CEDAW, supra note 22, art. 11

those related to family planning” and, more specifically, to “ensure to women appropriate
services in connection with pregnancy, confinement in the post-natal period, granting free
services when necessary, as well as adequate nutrition during pregnancy and lactation.” 102
Article 14 reiterates the right to family planning services for rural women in particular. 103
Finally, Article 16 requires states to “take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations.” 104 In
addition to these specific guarantees, Article 5 more broadly demands recognition of
maternity as “a social function,” rather than a commercial function.105
To the extent CEDAW focuses on the health of the pregnant woman, it is not
inconsistent with gestational surrogacy.106 Rather, it confirms safeguards that, by protecting
the health of the surrogate, reduce objections to the practice. To the extent CEDAW focuses
on maternity as a “social function,” however, it is difficult to reconcile with commercial
surrogacy, or at least those forms of commercial surrogacy in which the intending parents and
the surrogate remain strangers.107
A “Right to Parent” for Gay Men?

For gay men who want to parent a genetically–related child, surrogacy may be their
only hope.108 Just as surrogacy was not on the agenda at Cairo, neither was parenting by
same-sex couples or gay or lesbian individuals. But LGBT&Q—Lesbian, Gay, Bisexual,
Transsexual and Queer or Lesbian, Gay, Bisexual, Transsexual and Questioning—rights have
102
. General Comment by Convention on the Elimination of All Forms of Discrimination against Women art. 12, Sept. 3,
1981, U.N. A/54/38/Rev.1, ch. I, available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article12 (last
visited Mar. 13, 2012). The Committee’s General Recommendation No. 24 elaborates on Article 12.1, addressing women’s
access to health care, including family planning services. The Committee recommends that “[w]hen possible, legislation
criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.” Id. at
12(2). For a more detailed formulation of these rights, see CTR. FOR REPRODUCTIVE RTS., THE PROTOCOL ON THE RIGHTS OF
WOMEN IN AFRICA: AN INSTRUMENT FOR ADVANCING REPRODUCTIVE AND SEXUAL RIGHTS 1 (2003), available at
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_bp_africa.pdf (last visited Mar. 13, 2012).
103
104
. CEDAW, supra note 22, art. 16 (Article 16 has received an unprecedented number of reservations); Luisa
Blanchfield, The U.N. Convention on the Elimination of All Forms of Discrimination Against Women: Issues in the U.S.
Ratification Debate, Cong. Res. Serv. 7-5700, at 2 (2010) (two States Parties to the Convention—Malta and Monaco—stated in
their reservations to CEDAW that they do not interpret Article 16(1)(e) as imposing or forcing the legalization of abortion in
their respective countries); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination
Against Women, 30 VA. J. INT’L 643, 702 (1990).
105.
CEDAW, supra note 22, art. 5.
106.
See, e.g., Amelia Gentleman, India Nurtures Business of Surrogate Motherhood, N.Y. TIMES, Mar. 10, 2008, at A9;
See generally Scott, supra note 28.
107
108.
Anne R. Dana, The State of Surrogacy Laws: Determining Legal parentage for Gay Fathers, 18 DUKE J. GENDER L.
& POL’Y 353, 363 (2011).

achieved widespread recognition since 1994. Since reproductive rights, including the right to
parent, are human rights, like other human rights, they should be universally assured.109
As Justice Albie Sachs explained in Minister of Home Affairs v. Fourie, extending the
benefits of marriage to same-sex partners is fundamentally a matter of equality:
[O]ur Constitution represents a radical rupture with a past based on intolerance and
exclusion, and the movement forward to the acceptance of the need to develop a
society based on equality and respect by all for all. [. . .] A democratic,
universalistic, caring and aspirationally egalitarian society embraces everyone and
accepts people for who they are. [. . .] The acknowledgement and acceptance of
difference is particularly important in our country where for centuries group
membership based on supposed biological characteristics such as skin colour has
been the express basis of advantage and disadvantage. . . . [A]t issue is a need to
affirm the very character of our society as one based on tolerance and mutual
respect.110
Like racial discrimination, discrimination on the basis of sexual orientation is

grounded in intolerance and exclusion. In validating same-sex marriage, courts and
legislatures throughout the world have rejected the notion of a “natural” sexual division of
labor requiring marriage to be restricted to a union between a man and a woman. Rather,
there is growing recognition that a state committed to democratic values, especially the
equality of its citizens, can no longer endorse laws that discriminate against some of those
citizens.
The European Union, with its twenty-seven member states, has been a leader in
recognizing the equal rights of same-sex couples.111 The European Court of Human Rights,
for example, has interpreted the European Convention on Human Rights to require
109
. See, e.g., G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (Dec. 10, 1948) (stating that,“[w]hereas recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world.”).
110
. Minister of Home Affairs v. Fourie, 2005 (1) SA 19 (CC) at 37 (S. Afr.), available at
http://www.saflii.org/za/cases/ZACC/2005/19.html (last visited Mar. 13, 2012) (finding a right to same-sex marriage in the
South African Constitution). See also Goodridge v. Dep’t. of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (finding a right to
same-sex marriage in the Massachusetts’ constitution’s right to equality). For a thoughtful comparison of Goodridge and
Fourie, see Lisa Newstrom, The Horizon of Rights: Lessons from South Africa for the Post-Goodridge Analysis of Same-Sex
Marriage, 40 CORNELL INT’L L.J. 781, 803 (2007). For a discussion of developments in the United States, see Anita Bernstein,
Subverting the Marriage-Amendment Crusade with Law and Policy Reform, 24 WASH. U. J. L. & POL’Y 79, 83 (2007) (finding
a right to same-sex marriage in the Massachusetts’ constitution’s right to equality). For a survey, see Harvard Law Review
Assoc., Developments in the Law—The Law of Marriage and Family, 116 HARV. L. REV. 1996, 2087–2091 (2003).
111
. Katharina Boel-Woelki, The Legal recognition of Same-Sex Relationships within the European Union, 82 TUL. L.
REV. 1949, 1951 (2008).

contracting nations to recognize family rights of same-sex couples. 112 The Court relied on
Article 14, which provides that the rights set forth in the Convention are to be secured
“without discrimination on any ground” to allow the surviving member of a gay couple to
remain in his flat.113 Under the 1997 Treaty of Amsterdam, similarly, the European Council
passed Council Directive 2000/78/EC, which prohibits “any direct or indirect discrimination
based on . . . sexual orientation.” 114 In 2008, the European Court of Justice relied on this
Directive to hold that the surviving partner of a German same-sex partner might be able to
claim a pension.115 The Treaty of Lisbon,116 which entered into force on December 1, 2009,
assures the right to marriage without any language limiting such right to “men and women”
and expressly prohibits discrimination on the basis of sexual orientation.117
Same-sex couples in other regions have also drawn on human rights law to challenge
discrimination. In South America, for example, same sex-couples have sought assistance
from the Inter-American Commission on Human Rights. In the case of Marta Lucia Alvarez
Giraldo, the Commission reviewed a complaint brought by the applicant against Colombia,
alleging that the director of the prison in which the applicant was incarcerated had refused her
request for intimate visits from her female life partner on the basis of her sexual orientation. 118
Finding that Colombian law afforded prisoners a right to intimate visits, the Commission
determined that the applicant had stated a colorable claim of arbitrary and abusive
interference with her private life, in violation of Article 11(2) of the American Convention on
Human Rights.119
112
. See, e.g., Karner v. Austria, App. No. 40016/98, Eur. Ct. H.R. 41 (2003) (while welcoming measures taken by the
State party to eliminate gender segregation in the labor market, including through training programs in the area of equal
opportunities, the Committee is concerned about the persistence of traditional stereotypes regarding the roles and tasks of
women and men in the family and in society at large . . . [and] recommends that policies be developed and programs
implemented to ensure the eradication of traditional sex role stereotypes in the family, labor market, the health sector,
academia, politics and society at large).
113
. Id. at 29 (the Karner Court also cited Article 8, which guarantees each individual “the right to respect for his private
and family life.”).
114
. Council Directive 2000/78, art. 16, 2000 O.J. (L 303) 12 (EC), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:303:0016:0022:en:PDF (last visited Mar. 13, 2012) (establishing a
general framework for equal treatment in employment and occupation).
115.
Case C-267/06, Maruko v. Versorgungsanstal Der Deutschen Buhnen, 2008 E.C.R. 1-1757.
116
. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community,
Dec. 13, 2007, O.J. (C 306) 1 (the Treaty of Lisbon is also called the “Treaty on the Functioning of the European Union.”).
117
. Id. art. 1.3; Elizabeth F. Defeis, The Treaty of Lisbon and Human Rights, 16 ILSA J. INT’L & COMP. L. 413, 419
(2010).
118.
Giraldo v. Colombia, Case 11,656, Inter-Am. Comm’n H.R., Report No. 71/99, OEA/Ser.L/V/II.106 Doc. 3 rev., at
211 (1999) (Colom.).
119.
Id. (following unsuccessful attempts to resolve the matter by friendly settlement, the Commission declared the case
admissible, and agreed to publish the decision, to continue analyzing the merits of the case, and to renew its efforts to conclude
a friendly settlement).

On June 3, 2008, the General Assembly of the Organization of American States

(OAS), with the support of thirty-four OAS member countries, adopted the Resolution on
Human Rights, Sexual Orientation, and Gender Identity. 120 The resolution takes note of the
importance of the adoption of the Yogyakarta Principles and affirms the core principles of
non-discrimination and universality in international law.121 States also agreed to hold a
special meeting “to discuss the application of the principles and norms of the Inter-American
system on abuses based on sexual orientation and gender identity.”122
In North America, Canada passed the Civil Marriage Act in 2005, which recognizes
same-sex marriage.123 In the United States, six states currently allow same-sex marriage. 124
Forty-three states have laws explicitly prohibiting such marriages, including twenty-nine with
constitutional amendments restricting marriage to one man and one woman.125 In Perry v.
Schwarzenegger, Judge Vaughn Walker relied on the Fourteenth Amendment to strike down
California’s Proposition 8, which barred same-sex marriage. 126 In doing so, Judge Walker
raised the question of same-sex marriage in the United States to the constitutional level for
the first time.127
On the international level, too, the trend is clearly toward the recognition of rights for
same-sex couples. In Toonen v. Australia, for example, the Human Rights Committee
determined that the provisions of the Tasmanian Criminal Code, which criminalized private
same-gender sexual conduct between consenting adults, constituted an arbitrary interference
with the author’s privacy, in violation of Article 17 of the International Covenant on Civil and
120
. Rex Wockner, Norway Legalizes Marriage, BAY TIMES, June 19, 2008, http://www.sfbaytimes.com/index.php?
sec=article&article_Id=8382 (last visited Mar. 13, 2012).
121
. Id.
122.
Id.
123.
Civil Marriage Act, 2005, SC, c.33 (Can.); see generally Peter Bowal & Carlee Campbell, The Legalization of
Same-Sex Marriage in Canada, 21 AM. J. FAM. L. 37 (2007).
124.
They are: Massachusetts, see Goodridge, supra note 83; Connecticut, see Kerrigan v. Comm’r of Pub. Health, 957
A.2d 407 (Conn. 2008); Iowa, see Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Vermont, see VT. STAT. ANN. CIVIL
MARRIAGE TIT. 15 § 8 (West 2009); New Hampshire, see N.H. REV. STATE. ANN. § 45:1 (2010); and New York, see N.Y.
DOM. REL. Law § 10(a) (McKinney 2011). See generally Linda Silberman, Same-Sex Marriage: Refining the Conflict of
Laws Analysis, 153 U. PA. L. REV. 2195 (2005). See J. Thomas Oldham, Developments in the US-The Struggle over the
Creation of a Status for Same-Sex Partners, in THE INT’L SURVEY OF FAMILY LAW 485 (Andrew Bainham ed., 2006).
125
. BLAIR ET AL., supra note 65, at 234. See also Maria Godoy, State by State: The Legal Battle Over Gay Marriage,
NAT’L PUBLIC RADIO (Feb. 7, 2012, 11:37 AM), http://www.npr.org/2009/12/15/112448663/state-by-state-the-legal-battle-
over-gay-marriage (last visited Mar. 18, 2012).
126.
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (2010).
127
. Editorial, Marriage is a Constitutional Right, N.Y TIMES, Aug. 4, 2010, at A26. On February 23, 2011, the Obama
Administration advised the Speaker of the House that it would no longer defend the constitutionality of Sec. 3 of DOMA.
Marc Ambinder, Obama Won't Go to Court Over Defense of Marraige Act, NAT’L J. (Feb. 24, 2011),
http://www.nationaljournal.com/obama-won-t-go-to-court-over-defense-of-marriage-act-20110223 (last visited Mar. 18, 2012).

Political Rights.128 Nor could the provisions be upheld for the purpose of preventing the
spread of AIDS129 The Committee also held, however, that the rights of same-sex couples to
marry cannot be grounded in the Civil Covenant because of its specific language.130
In part because of such limitations in existing human rights law, 131 in 2006, the
International Commission of Jurists and the International Service for Human Rights, on
behalf of a coalition of human rights organizations, convened a meeting in Indonesia to
develop a set of international principles regarding sexual orientation and gender identity.
Twenty-nine distinguished experts in human rights law from twenty-five countries
unanimously adopted the Yogyakarta Principles,132 which they agreed reflect the existing state
of international human rights law in relation to issues of “sexual orientation and gender
identity.”133 As set out in the Statute of the International Court of Justice, the views of such
experts may be relied upon in determining rules of law. 134 The Yogyakarta Principles,
rigorously supported by sixty-six pages of jurisprudential annotations, 135 affirm a broad range
of rights, including “the core human rights principles of equality, universality and non-
discrimination . . . it is unthinkable to exclude persons from these protections because of
128.
Toonen v. Australia, [1994] 6.1 Comm’n No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (Austl.), available at
http://www1.umn.edu/humanrts/undocs/html/vws488.htm (last visited Mar. 18, 2012).
129.
Id. at 6.5.
130.
As the Committee explained in Joslin v. New Zealand:
Article 23, paragraph 2 of the Covenant is the only substantive provision . . . which defines a right
by using the term “men and women,” rather than “every human being,” “everyone” and “all
persons.” Use of the term “men and women,” rather than the general terms used elsewhere in
Part III of the Covenant, has been consistently and uniformly understood as indicating that the
treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to
recognize as marriage only the union between a man and woman. . . .
Joslin v. New Zealand, [2002] Comm'n No. 902/1999 U.N. Doc. CCPR/C/75/D/902/1999 (N.Z.), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e44ccf85efc1669ac1256c37002b96c9?Opendocument (last visited Mar. 18, 2012)
(upholding New Zealand’s refusal to permit same-gender couples to marry); Quilter v. Attorney-General, [1998] 1 NZLR 523
(N.Z.). For a provocative discussion, see generally Vincent J. Samar, Throwing Down the International Gauntlet: Same-Sex
Marriage as a Human Right, 6 CARDOZO PUB. L. POL’Y & ETHICS J. 1 (2007).
131
. Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law:
Contextualising the Yogyakarta Priciples, 8 HUM. RTS. L. REV. 207, 232 (2008) (noting that “[t]he High Commissioner for
Human Rights, Louise Arbour, has expressed concern about the inconsistency of approach in law and practice . . .
[regarding] . . . sexual orientation and gender identity.”).
132
. Id. at 233.
133.
Id. at 247.
134.
Int'l Court of Justice, Statute of the International Court of Justice, art. 38, http://www.icj-
cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II (last visited Mar. 18, 2012) (“The court . . . shall apply . . .
the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.”).
135.
Michael O’Flaherty, Annotation, Jurisprudential Annotations to the Yogyakarta Principles, 8 UNIV. OF NOTTINGHAM
HUM. RTS. LAW CTR 1 (2007), available at http://www.yogyakartaprinciples.org/yogyakarta-principles-jurisprudential-
annotations.pdf (last visited Mar. 13, 2012).

their . . . sexual orientation or gender identity.”136 The Principles also set out concrete
measures states must take to assure these rights.137
On December 12, 2008, sixty-six nations at the UN General Assembly supported a
groundbreaking Statement confirming that international human rights protections apply to
sexual orientation and gender identity. 138 The Statement was read by Argentina, and a
Counterstatement, signed by fifty-nine states, was read by the Syrian Arab Republic. 139 The
states opposing human rights for same-sex couples do not seek to ground their arguments in
international law, however. Rather, they claim that the Statement endorsing these rights
“lack[ed] . . . legal grounds [and] delves into matters which fall essentially within the
domestic jurisdiction of States.”140 This is belied by the exhaustive research supporting the
Yogyakarta Principles.141 While there is no state consensus on the issue, there is a clear trend
toward recognizing the rights of same-sex couples. Thus, although homosexuality remains a
crime in seventy-six countries and is still punishable by death in five, a growing body of
international equality jurisprudence increasingly supports these rights.142
The Child’s Rights

Surrogacy implicates several rights of the child under the CRC. First, the child’s
rights are to be “respect[ed] and ensure[d] . . . without discrimination of any kind . . .
[including] birth or other status.”143 While this provision was originally intended to protect
136.
Michael O’Flaherty & John Fisher, supra note 104, at 241.
137
. Id.
138
. U.N. GAOR, 63rd Sess., 70th plen. mtg. at 30, U.N. Doc. A/63/PV.70 (Dec. 18, 2008).
139.
Id. The Counterstatement, signed by 59 states, condemned the Statement, arguing further that:
More important, it depends on the ominous usage of two notions. The notion of orientation spans
a wide range of personal choices that expand far beyond the individual sexual interest in a
copulatory behavior between normal consenting adult human beings, thereby ushering in the
social normalization and possibly the legitimization of many deplorable acts, including
pedophilia. The second notion is often suggested to attribute particular sexual interests or
behaviours to genetic factors, a matter that has repeatedly been scientifically rebuffed.
Id. at 31.
140
. Id.; see also O’Flaherty & Fisher, supra note 104, at 238–43 (describing the “Reaction by States and other Actors
within United Nations Fora.”).
141
. See O’Flaherty & Fisher, supra note 104, at 238.
142
. DANIEL OTTOSSON, INT’L LESBIAN & GAY ASSOC., STATE-SPONSORED HOMOPHOBIA, A WORLD SURVEY OF LAWS
PROHIBITING SAME SEX ACTIVITY BETWEEN CONSENTING ADULTS 4, 45 (2011), available at
http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf (last visited Mar. 13, 2012) (This
jurisprudence includes the recent decision of the High Court of Delhi, which ruled in 2009 that section 377 of the Indian Penal
Code could not be applied to sexual activities between consenting adults. The ruling affects all of India, except Jammu and
Kashmir, where a different penal code applies, and affects approximately one sixth of the human population); Anjuli W.
McReynolds, What International Experience Can Tell U.S. Courts About Same-Sex Marriage, 53 UCLA L. REV. 1073, 1076
(2006) (the absence of consensus only matters in ascertaining customary international law, which is not in issue. It could be
argued, however, that there is regional customary international law with respect to same-sex relationships in Europe).
143
. CRC, supra note 26, art. 2(1).

illegitimate children, its inclusiveness suggests a generous and expansive application,

including children born of surrogacy144.
Article 7 is the most problematic here. Article 7.1 provides in pertinent part that “the
child shall be registered immediately after birth and shall have the right from birth to a name,
the right to acquire a nationality, and, as far as possible, the right to know and be cared for by
his or her parents.”145 There are two difficulties with this provision, both grounded in its
presumptive incorporation of national law. If that law provides that a mother is the person
giving birth, the child’s status is unclear. If that law provides that a child born of surrogacy
cannot acquire the nationality of her intending parties, similarly, the child may be in a
precarious situation. Either problem can be rectified by reforming domestic law or as
proposed in the pending Indian legislation on surrogacy, by requiring the intending parents to
prove, before entering into a surrogacy arrangement, that the resulting child will be granted
citizenship in the state where her intending parents live, and that they, in fact, will be legally
recognized as her parents in that state.146
Dehumanizing and exploitative?
Commercial surrogacy in India is big business. Legalised in India in 2002, it is now a half-a billion-
dollar a year industry, with surrogacy services offered in at least 350 clinics and is expected to grow
into $2.3 billion industry by 2012. Indeed, India’s Ministry of Tourism promotes medical tourism
and companies advertise ‘healthy young women – superovulated exclusively for you’. Critics argue
that placing a profit motive at the heart of fertility treatments can be dangerous, however, pointing to
the risks posed to donors by clinicians who use high-tech fertility boosting techniques that can cause
ovarian hyper-stimulation and pelvic infection; some have also expressed concern about the overuse
and inappropriate use of commercial surrogacy, facilitated by unscrupulous fertility clinics.
The growing number of western couples seeking donors and surrogates in India has prompted many
to view this as the exploitation of women based on reproductive health inequalities. The charge of
exploitation finds the use of bodies or the ‘renting of wombs’ of poor women in developing
countries in exchange for money disconcerting and dehumanising. Terms such as ‘outsourced
pregnancy’ suggest the practice of egg donation and commercial surrogacy is akin to other
144
. CRC, supra note 26, art. 1.
145
. CRC, supra note 26, art. 7(1).
146.
Courtney G. Joslin, Protecting Children: Marriage, Gender, and Assisted Reproductive Technology, 83 S. CAL. L.
REV. 1177, 1228 (2010).

outsourced business operation exploiting cheap labour in India. In commercial surrogacy, it is

argued, women are viewed primarily as an instrument of childbearing, and their wombs treated as
commodities; all of which has implications for how society views women, and the emotional
relationship between mother and child. The discussion has also become inextricable from concerns
about poverty, with many questioning whether poor women, sometimes in financially desperate
situations, really do have a choice. Others have also expressed concern that women may be coerced
by their husbands or in-laws into becoming surrogates, and many argue that uneducated poor
women are forced into surrogacy by middlemen. Some also note that the process is fraught with
difficulties for the prospective parents. Not only are failed surrogacies frequent, but successful ones
can involve a two or three month stay in India sorting paperwork.
Ethical hazards and legal reform:
Commercial surrogacy in India has been regulated since 2005 by guidelines issued by the Indian
Council of Medical Research (ICMR), but they are not legally binding and are ambiguous on issues
like surrogates’ rights, informed consent and adoption requirements. The Assisted Reproductive
Technologies Regulation Bill - 2010, purportedly an updated and ‘improved’ version of the ICRM
guidelines purportedly, is awaiting approval but proving controversial.
Although clinic director Anand Kumar believes that surrogacy meets all three pillars of medical
ethics: autonomy, beneficence and non-maleficence, fertility tourism continues to be fraught with
ethical questions around reproductive autonomy, free-will and coercion. What happens to the
surrogacy contract in case of a miscarriage? What if the baby is born with serious disabilities and is
unwanted? Or what happens if the contracting couple change their mind about wanting a baby, if the
surrogate dies during childbirth or if the commissioning couple are gay? Some suggest the lack of
regulation in India make already complex and difficult situations more prone to confusion and
abuse, and welcome the draft Assisted Reproductive Technologies (Regulation) Bill - 2010. But
others suggest that it is India’s more liberal attitude to regulation that has given so many couples the
opportunity to have children in the first place, in comparison with the more restrictive laws they face
elsewhere. Accepting that the opportunities raised by fertility tourism raise difficult ethical
questions, proponents suggest that none are insurmountable. If these ethical issues are more
effectively negotiated, they argue that commercial surrogacy should be viewed as a welcome and

effective means of assisting infertile couples, whilst at the same time providing reasonable financial
compensation to those women prepared to help them.
Actually, the entire idea of a child created in a test tube and carried by an unrelated woman is
enough to drive fear into the hearts of many while questioning the ethics of surrogacy. The reason
behind this is that so far the practical scenario is concerned, it is clear like crystal that reproductive
scientists are able to accurately tell if a created embryo might carry a specific disease, or even to tell
it's gender. Soon we may also have the technology to determine hair and eye color, or even skills or
hobbies of our potential children. Even we may see in our lifetimes that scientists are able to
successfully clone a human being.
Indian Legal Aspects Of Commercial Surrogacy:
Previously this researcher have discussed about the ethical issues on commercial surrogacy. But
now the researcher is going to highlight legal aspects of commercial surrogacy in India. Commercial
surrogacy has been legal in India since 2002. India is emerging as a leader in international
surrogacy. So far the Indian perspective is concerned; it has left no doubt with the room that Indian
surrogates have been increasingly popular with fertile couples in industrialized nations due to the
relatively low cost. At the same time, Indian clinics are becoming more competitive, not only in the
matter of pricing, but also in the hiring and retention of Indian females as surrogates. Actually,
surrogacy in India is much simpler as well as less costly. So, people from western countries are
gathering to India get a baby of their own genes.
147
The Supreme Court of India, through the Manji Yamada Case , held that commercial surrogacy
was legal in India. So far this case is concerned, it involved Baby Manji, who was born on 25-7-
2008, under a surrogacy agreement executed between Japanese biological/genetic parents (father, I
and mother,Y) and an Indian surrogate mother. She became focus of legal as well as diplomatic
crisis soon after her birth. Her genetic parents (the intended parents) had divorced months before her
birth. The genetic mother was refusing the child, while the father and grandmother did want to raise
the child. In this case, it was held that if the petitioner has any grievance in relation to the order to
be passed by the Central Government, such remedy, as is available in law may be invalid. It is also
to be noted that the Commissions for Protection of Child Rights Act, 2005 has been enacted for the
147
Baby Manji Yamada vs. Union of India and Another. (2008) 13 SCC 518.

constitution of a National Commission and the State Commission for protection of child rights and
children’s courts for providing speedy trial of offences against children or of violation of child
rights and for matters connected therewith and incidental thereto. In the present case, if any action
is to be taken that has to be taken by the Commission. Section 13 which appears in Chapter III of
the Act is of considerable importance.
Moreover, in the case of Jan Balaz vs. Union of India148 the Gujrat High Court has come to a
decision that the question whether a child born in India to a surrogate mother, an Indian national,
whose biological father is a foreign national, would get citizenship in India, by birth, is an important
question which has no precedent at all in this country. Thus, in this case the Court has bestowed the
Indian citizenship upon two twin babies fathered through compensated surrogacy by a German
national in the Anand district. Presently, this case is pending before the Apex Court.
Surrogacy only furthers Right to Life under Article 21 of the Constitution: The relation of the
surrogated mother to the child she is carrying is nothing but womb leasing or womb for rent. After
the birth of the child she has no right to keep the child because she is neither the mother (where both
ova and sperm are from different persons) nor the owner of the genetic material. She is only a
contractor who is willing to give the end product once the contract between her and the person is
fulfilled. 149
However, to deal with legal pre-requisites for a commercial surrogacy, there is no uniform law in
India till today. The growing demand for surrogacy in India has also raised issues, including those of
child rights.150 This led to the government drafting a bill which is called the Assisted Reproductive
Technology (Regulation) Bill 2008.151 But the draft is still pending with the Union law ministry,
148
From L.P.A. No. 2151 of 2009, High Court of Gujarat
149
Anita Rao, Surrogate Motherhood-Legal perspective as cited in Kelra,K., 2010. Surrogacy Arrangements: Legal
and Social Issues. Journal of Law Teachers of India. Volume 1(Issue No.1-2).p.131.
150
India’s Legislation of Commercial Surrogacy.[online]Available at:http://www.indian-surrogacy.com/item/india-
legalisation-of-commercial-surrogacy.html [Accessed Date : 28th October, 2011]
151
The proposed legislation provides for the following:
 A cap on the age of the surrogate mother (who has not exceeded 45 years of age); the surrogate mother
must not carry more than five pregnancies to term (including her own children); and mandates medical
insurance during pregnancy.
 It will prohibit any sort of contact between the surrogate mother and the child after birth. Any such
contact is punishable by a fine or imprisonment for up to two years.
 Foreign couples should provide proof that the child born to a surrogate mother will automatically get
the citizenship of the intended parents’ home country. This includes registering with their Embassy or
High Commission in India, and providing a signed and notarised statement accepting the terms as laid
out by the law.
 It proposes to set up a database of surrogate mothers throughout the country.
 It will limit the role of those monitor clinics (which are dealing with surrogacy and surrogate mothers)
to conducting the actual IVF procedure, as opposed to their current role of arranging the entire process.

whose approval will take it to the Union cabinet before being presented in the Indian parliament.
However, even if the bill gets passed in the 2010 Winter Session, it will take another year before the
152
resulting Act redefines commercial surrogacy in India. For the time being guidelines (as given in
the year 2005) for accreditation, supervision and regulation of Assisted Reproductive Technology
clinics formulated by the Indian Council of Medical Research and National Academy of Medical
Sciences are used as a basic platform and the code for the purpose of conducting surrogacy in India.
153
The extract form of the guideline is given below :
 A child born through surrogacy must be adopted by the genetic (biological) parents unless they
can establish through genetic (DNA) fingerprinting (of which the records will be maintained in the
clinic) that the child is theirs.
 Surrogacy by assisted conception should normally be considered only for patients for whom it
would be physically or medically impossible/undesirable to carry a baby to term.
 Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy.
Documentary evidence of the financial arrangement for surrogacy must be available. The ART
centre should not be involved in this monetary aspect.
 Advertisements regarding surrogacy should not be made by the ART clinic. The responsibility
of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a
semen bank.
 A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible
surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the
woman satisfies all the testable criteria to go through a successful full-term pregnancy.
 A relative, a known person, as well as a person unknown to the couple may act as a surrogate
mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the
same generation as the women desiring the surrogate.
 A prospective surrogate mother must be tested for HIV and shown to be seronegative for this
virus just before embryo transfer. She must also provide a written certificate that (a) she has not had
a drug intravenously administered into her through a shared syringe, (b) she has not undergone
blood transfusion; and (c) she and her husband (to the best of her/his knowledge) has had no
extramarital relationship in the last six months. (This is to ensure that the person would not come up
with symptoms of HIV infection during the period of surrogacy.) The prospective surrogate mother
152
India’s Legislation of Commercial Surrogacy. Supra Note 14 at paragraph 3.
153
Legal Aspects. [online] Available at : http://www.kaylegalsurrogacy.com/IVF-Clinics-in-india/surrogacy-laws-in-
india.html (Accessed Date : 29th October, 2011)

must also declare that she will not use drugs intravenously, and not undergo blood transfusion
excepting of blood obtained through a certified blood bank.
 No woman may act as a surrogate more than thrice in her lifetime.154
Thus, till today no uniform law as to regulating commercial surrogacy is there in India.
Professional Accountability of doctors:
The principle that doctors, and indeed all professionals, should be accountable for their
failures is entirely acceptable. It does not, however, mean that criminal prosecutions should
be the instrument chosen to perform that task. This paradigm shift in the perceptions of
society in controlling the professional activities of doctors has brought in defensive medicine,
which in turn escalates the cost of health care. In fact, making doctors criminally liable for the
death of a patient means a step backwards towards the ancient feudal system.
CURRENT SCENARIO IN INDIA AND THE WESTIn India, usually Section 304-A of the
Indian Penal Code (IPC), 1860 is used to register a complaint against a medical practitioner
for alleged criminal professional negligence. Interestingly, this is the section used to frame
charges against an erring driver in a road traffic accident for causing the death of a person by
rash and negligent driving.
The only aberration to this conventional manner of registering complaints of alleged criminal
medical negligence under Section 304-A of the IPC took place in 1999 when a qualified
medical practitioner stood trial under Section 304 of the IPC for profes sional negligence.
This section deals with the punishment for culpable homicide (manslaughter in the USA and
UK). In this case, the patient who delivered the child at home survived about 12 days after the
initial tubectomy surgery. She was re-operated since she developed peritonitis, which is an
accepted delayed complication of tubectomy. Further, the entire episode occurred in a
government hospital where usually a team of doctors attend to an in-patient. However, a trial
court of Chidambaram in Tamil Nadu awarded an obstetrician 10 years of rigorous
imprisonment and a fine ofRs 300 000 for causing death ofthe patient who underwent the
tubectomy.' Fixing criminal liability for an inherent risk associated with a tubectomy could
only be termed as incorrect, infelicitous and even crude.
154
Hari,G.R.,2009.FEWBASICS FROM ICMR GUIDELINES.[online]Available at :
http://blog.indiansurrogacylaw.com/2009/01/few-basics-from-the-icmrguidelines (AccessedDate:28thOctober,2011)

If the patient survives and suffers from the effects of alleged grievous injuries sustained
during treatment, the medical practitioner can be charged under either Section 337 or 338 of
the IPe. In the UK and USA when professional negligence is involved, it is considered as
involuntary manslaughter.
The service which medical professionals render to us is the noblest. Aryans embodied the rule
that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu).
Professionals like doctors, lawyers, etc. are in the category of persons professing special
skills. Any man practicing a profession requires particular level of learning, which impliedly
assures a person dealing with him, that he possesses such requisite knowledge, expertise and
will profess his skill with reasonable degree of care and caution. It should be taken in to
consideration that the professional should command the “corpus of knowledge” of his
profession. Since long the medical profession is highly respected, but today a decline in the
standard of the medical profession can be attributed to increasing number of litigations
against doctors for being negligent narrowing down to “medical negligence”.
The health service has been under the purview of the Consumer Protection Act, 1986 and
subsequently the commercialization of the health sector has had adverse effects on doctor and
patient relationship. The landmark case Indian Medical Association Vs. V.P.Shantha brought
the medical professionals within the ambit of “service” as defined in the Consumer Protection
Act, 1986. It's a common observation that medical practitioners, hospitals are being attacked
by family members of patient for alleged medical negligence. The doctor- patient relationship
is one of the most unique and privileged based on mutual trust and faith. But presently there is
a great decline in the doctor-patient relationship. The reason may be communication gap
between them, commercialization of health services, raising expectations from doctors or
increased consumer awareness.
Medical profession is governed by code of medical ethics and etiquettes laid down by
Medical Council of India. Although they are for internal self regulations of the profession, it
is an obligation on the part of the professionals to fulfil certain rights, expectations of the
patients. But there has been fast spreading misconduct amongst the medical professionals
.The unethical practice has gone to a level where the basic purpose of medical profession that
is service to humanity fails. Few unethical practices like fee sharing, or cut practice,

particularly prescribing a company’s medicine, selling of body parts etc for personal monitory
gains are openly discussed among them but they never come up to the surface due to lack of
concrete proof. To err is human nature but mistakes of medical professional which may result
in death of a person or permanent impairment can be particularly costly but the law does not
aim to punish doctors for all their mistakes, but only to those which are committed out of
negligence. Mistakes occur but which occurs from carelessness and negligence cannot be let
off.
Medical negligence is clearly defined as want of reasonable degree of care and skill or wilful
negligence on the part of medical practitioner in the treatment of patient with whom a
relationship of professional attendance is established so as to lead to bodily injuries or as to
loss of life. The ingredient of medical negligence is the duty of care. Person who holds
himself out ready to give medical advice and treatment impliedly undertakes that he is
possessed with skill and knowledge for the purpose. Such a person when consulted by a
patient owes him certain duties.
Stringently, the duties of care for medical professionals are:–
• deciding whether to undertake the case,
• what treatment to give, and
• Duty of care in administration of that treatment. Nevertheless, a simple lack of care, an error
of judgment or an accident is not a proof of negligence on the part of medical professional.
So long as he follows a practice acceptable to the profession on that day he can't be held liable
for negligence merely because a better alternative course of treatment was available or a more
skilled doctor would not have chosen to follow or resort to that practice which the accused
followed. He should not be held liable for taking one choice out of the different schools of
treatment [Medical Council Act (102 of 1956), S.20A]. The standard of this reasonable care is
definitely a flexible criterion, capable of setting the boundaries of legal liability of the
professionals depending on the duties founded on principles of torts or contracts. The term
negligence is not an absolute but relative and comparative one. No absolute standard can be
laid by which negligence can be infallibly measured in a case. All the facts have to be taken in

to account to determine whether negligence occurred or not.
In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing
medical negligence was set. “The doctor is required to exercise the ordinary skill of a
competent doctor in his field. He must exercise this skill in accordance with a reasonable
body of medical opinion skilled in the area of medicine.” Now to go with the latest trend of
prosecution to the doctors the term criminal negligence has come in to light, which means
recklessly acting without reasonable caution, hurting another person at risk of injury or death
by negligence. This applies to medical practitioner when he shows gross negligence in his
treatment, boding to severe injury or even death. He should not be held liable criminally for
the patient’s death unless his negligence shows such regard for the life and safety of the
patient as to amount to a crime.
The most important criterion is the degree of negligence required to prosecute them under the
charge of criminal negligence, which should be gross or even high degree. The jurisprudential
concept of negligence differs in civil and criminal law. Negligence which is neither gross nor
of a high degree may provide a ground for action in civil law but cannot form the basis for
prosecution in criminal law.
We have noticed that in the case of doctors being subjected to criminal prosecution are on the
rise; such prosecutions are filed by private complainants or by the police on an FIR lodged
and cognizance taken. The criminal process once initiated, subjects to the medical
professional to serious embarrassment and harassment. He has to seek bail to escape arrest,
which may or may not be granted to him. At the end he may be exonerated by acquittal or
discharge, but the loss he has suffered in his reputation cannot be compensated by any
standard.
The judgment given by the Honourable Supreme Court of India, consisting three judges
bench, in October 2005, ruled that doctors should not be held criminally responsible unless
there is prima facie evidence before the court in the form of a credible opinion from another
competent doctor, preferably a Government doctor in the same field of medicine, supporting
the charges of rash and negligent act. It’s a laudable judgment in the light of criminal
procedures filed against them in trivial cases under Sections 304 and 304-A of IPC where the

prima-facie, there seems to be no neglect in these medical treatments.
Section 304-A of IPC reads as “Causing death by negligence-whoever causes the death of any
person by doing any rash or negligent act not accounting to culpable homicide shall be
imprisoned with imprisonment of either description for a term which may extend to two years
or with fine or both.
“In a particular situation a particular act, which is short of being described as a reasonable act,
in this circumstance, it may be called as a negligent act.” According to the Bolman test,
negligence is the genus of which rashness is the species. The liability of doctors will always
depend on the circumstances of the particular case. The injury to the reputation of a
professional resulting from the finding of the negligence can be very serious indeed and this
is appreciated by the courts. In a land mark case Roe and Wooby Vs. Ministry of health, Lord
Justice Danning was of the opinion that “it is easy to be wise after the event and to condemn
as negligence that which was only a misadventure. We ought always to be on our guard
against it especially in cases against hospitals and medical profession.” Medical science has
conferred great benefits but these benefits are attended by unavoidable risks. In the case of
Hunter Vs Hanley, Lord President Clyde observed “the true test for establishing negligence in
diagnosis or treatment on the part of the doctors is whether he has been proved to be guilty of
such failure as no doctor of ordinary skill would have been guilty of, if acting with reasonable
care and this is concise and succinct definition of medical negligence.”
The distinction between civil and criminal negligence was clearly laid down by Lord Hewart
in the case of R. Vs. Bateman. Throughout the civilized world the public has become more
compensation minded. The burden of proof in action for negligence rests with the plaintiff, it
follows thereafter that in medical practice it is for the patient party to establish his claim and
not for the medical practitioner to prove that he acted with due skill and care. In few cases the
court will accept that the nature of the occurrence complained of is that as to relief the
plaintiff from establishing that there was negligence and to place on the defendant the burden
of proving the absence of negligence. In such cases the legal maxim res ipsa loquitor applies.
The British courts are however somewhat reluctant to apply this in cases of alleged
negligence in medical cases.

The High Court decision in Dr. Suresh Gupta Vs. Government of NCT of Delhi adjudicated
that legal decision is almost firmly established that where a patient dies due to negligent
medical treatment by doctors, they can be made liable in civil law by praying compensation
and damages in law of torts and if the degree of negligence is so gross and his act was
reckless as to endanger the life of the patient he would also be made criminally liable to
offence under section 304-A of IPC. Thus he cannot be held criminally responsible for a
patient’s death unless his negligence or incompetence showed such disregard for life and
safety of his patient as to amount to a crime against the state.
In another case Doctor Jacob Matthew Vs. State of Punjab the Honourable court opined
against the judgment of Gupta’s case. They questioned the adjective gross and opined that all
negligent acts causing death should be treated at par. Section 304-A of IPC was a sword
hanging above the doctor, working both in government hospitals and in the private sectors.
Since long, this has been made a malady and they were practicing defensive medicine so
much that even proper treatment/surgical procedures were being held back with the fear of
untoward results because of which doctors continued to be sued for no fault of theirs.
Supreme Court, in the case of Dr.Gupta, honourable judges had clarified that for ordinary
negligence they could not be held criminally responsible, it was only gross negligence and
precisely recklessness where they could be criminally held responsible.
The term gross is not a reference to Sec 304-A of IPC and also not in connection to
negligence. So in the case of Doctor Jacob Mathew, the Punjab High Court argued that
doctors could not be considered on a different pedestal as far as section 304-A is concerned.
The land mark judgment of the three judges bench of Supreme Court in Jacob Mathew v.
State of Punjab, practically absolves the medical professionals of the liability of section 304-
A. This is amply clear that Section 304 ,304-A of IPC, can be made applicable to the doctors
theoretically but they can feel secured in doing usual practices without any fear, apprehension
of being victimized on trivial grounds. The honourable court had gone through the details of
the problems faced by medical professionals and this land mark judgment will no longer
distort the doctor-patient relationship and benefit the patients in the long run.
This will also free the doctors from undue anxiety in the conduct of their professions. The
bottom line of this land mark judgment is, while expectations from the professionals must be

realistic and the expected standards attainable, this implies recognition of the nature of
ordinary human error and human limitations in the performance of complex tasks. The level
of competence of the doctors should be maintained by continuous medical education.
Incompetence due to lack of knowledge or due to quackery should be actively discouraged by
the regulating bodies and associations. The decisions will not only provide relief to the
doctors, who had been considered as soft targets by the law enforcing agencies and stop their
harassment by unsatisfied patients but would also increase the quality of service.
The Medical Council of India should also incorporate a provision in the Medical Council of
India Act that any complaint against a delinquent doctor should be disposed off by the State
Council within six months not only to deal effectively with medical negligence but also to
safe guard the interest of poor patients.
In the light of Judgment pronounced by the honourable Supreme Court and from the
discussions held in various decided cases it can be concluded that the Supreme Court provides
necessary protection, not the license to kill. The present case very clearly deals with the pros
and cons of the concept of Medical Negligence, in both civil and criminal aspects. Definitely
this judgment will bring harmonious relationship between doctor and patients and false
frivolous cases would be lessened as a consequence there off.

THE RIGHT TO HEALTH – CONSTITUTIONAL PERSPECTIVE
Legal Position On Right to Heath Care
(Part II)
The Constitution of India also has provisions regarding the right to health. They are outlined
the Directive Principles of State Policy- Articles 42 and 47, outlined in Chapter IV, and are
therefore non-justiciable.
Article 42
“Provision for just and humane conditions of work and maternity relief- The State shall make
provision for securing just and humane conditions of work and for maternity relief”
Article 47
“Duty of the State to raise the level of nutrition and the standard of living and to improve
public health- The State shall regard the raising of he level of nutrition and the standard of
living of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption, except for
medicinal purposes, of intoxicating drinks and of drugs which are injurious to health”155
The above articles act as guidelines that the State must pursue towards achieving certain
standards of living for its citizens’. It also shows clearly the understanding of the State that
nutrition, conditions of work and maternity benefit as being integral to health.
155
Part IV, Constitution of India adopted on 26th November 1949

Although the DPSP quoted above are a compelling argument for the right to health, this alone
is not a guarantee. There must be a clearly defined right to health so that individuals can have
this right enforced and violations can be redressed.
The Indian judiciary has interpreted the right to health in many ways. Through public interest
litigation as well as litigation arising out of claims that individuals have made on the State,
with respect to health services etc. As a result there is substantial case law in India, which
shows the gamut of issues that are related to health.
The Fundamental Right to Life, as stated in Article 21 of the Indian Constitution, guaranties
to the individual her/his life which or personal liberty except by a procedure established by
law. The Supreme Court has widely interpreted this fundamental right and has included in
Article 21 the right to live with dignity and “all the necessities of life such as adequate
nutrition, clothing….”. It has also held that act which affects the dignity of an individual will
also violate her/his right to life. 156. Similarly in Bandhua Mukti Morcha Vs Union of India,
the Supreme Court has held that the Right to life includes the right to live with dignity.
The recognition that the right to health is essential for human existence and is, therefore, an
integral part of the Right to Life, is laid out clearly in Consumer Education and Resource
Centre Vs Union of India157. It also held in the same judgment that humane working
conditions and health services and medical care are an essential part of Article 21.
Further in, State of Punjab and Others v. Mohinder Singh158 “It is now a settled law that right
to health is integral to right to life. Government has a constitutional obligation to provide
health facilities.”Apart from recognizing the fundamental right to health as an integral part of
the Right to Life, there is sufficient case law both from the Supreme and High Courts that lays
down the obligation of the State to provide medical health services.
This has been explicitly held with regard to the provision of emergency medical treatment in
156
Mullin Vs Union Teritory of Delhi
157
AIR 1995 SC 636
158
AIR 1997 SC 1225

Parmanand Katara Vs Union of India 159. It was held that “Every doctor whether at a
government hospital or otherwise has the professional obligation to extend his services with
due expertise for protecting life”.
The issue of adequacy of medical helath services was also addressed in Paschim Baga Khet
Mazoor Samiti Vs State of West Bengal.160 The question before the court was whether the non-
availability of services in the government health centres amount to a violation of Article 21?
It was held that that Article 21 imposes an obligation on the State to safeguard the right to life
of every person. Preservation of human life is thus of paramount importance. The government
hospitals run by the State and the medical officers employed therein are duty-bound to extend
medical assistance for preserving human life. Failure on the part of a government hospital to
provide timely medical treatment to a person in need of such treatment results in violation of
his right to life guaranteed under Article 21. Therefore, the failure of a government run health
centre to provide timely treatment, is violative of a person’s right to life. Further, the Court
ordered that Primary health care centres be equipped to deal with medical emergencies. It has
also been held in this judgement that the lack of financial resources cannot be a reason for the
State to shy away from its constitutional obligation.
In Mahendra Pratap Singh v. State of Orissa 161, a case pertaining to the failure of the
govrnment in opening a primary health care centre ina village, the court had held “In a
country like ours, it may not be possible to have sophisticated hospitals but definitely
villagers within their limitations can aspire to have a Primary Health Centre. The government
is required to assist people get treatment and lead a healthy life. Healthy society is a collective
gain and no Government should make any effort to smother it. Primary concern should be the
primary health centre and technical fetters cannot be introduced as subterfuges to cause
hindrances in the establishment of health centre.” It also stated that, “ great achievements and
accomplishments in life are possible if one is permitted to lead an acceptably healthy life”.
Thereby, there is an implication that the enforcing of the right to life is a duty of the state and
159
AIR 1989 SC 2039
160
161
AIR 1996 SC 2426

that this duty covers the providing of right to primary health care. This would then imply that
the right to life includes the right to primary health care.
The instrument of Public Interest Litigation used by Common Cause, 162 addresses the issue of
the working of commercial blood banks. The court while recognizing that blood donation is
considered as a great life saving service to humanity, it must be ensured that the blood that is
available with the blood banks for use is healthy and free from infection. The Supreme Court
in this case laid down a system of licensing of blood banks. It may be inferred from the
above reasoning that the State is entrusted with the responsibility in matters of health, to
ensure efficient functioning all centres relating to health care.
More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where
the court had to decide whether an HIV positive man should disclose his condition to the
woman he was to marry, the court has held that “the woman’s right to good health to
precedence over the man’s right to privacy”.163 It found that the hospital did not error in
disclosing his status to his fiancé. In MX VS ZY 164, the Bombay High Court found that if a
person were fired from his employment solely because of his HIV positive condition, it would
be condemning a person to "certain economic death".
While the provision of health services is essential to ensure good health, there are several
others factors that influence a person’s health. The Supreme Court has recognized this in a
number of ways. This was first addressed in Bandhua Mukti Morcha V Union of India,165 a
case concerning the living and working conditions of stone quarry workers and whether these
conditions deprived them of their right to life. The court held that humane working conditions
are essential to the pursuit of the right life. It laid down that workers should be provided with
medical facilities, clean drinking water and sanitation facilities so that they may live with
human dignity.
162
AIR 1997 Ori 37
163
AIR 1996 SC 83
164
AIR 1996 SC 83
165
AIR 1999 SC 495

In Citizens and Inhabitants of Municipal Ward v. Municipal Corporation, Gwalior the court
deliberated on the question- Is the State machinery bound to assure adequate conditions
necessary for health? The case involved the maintaining of sanitation and drainage facilities
by municipal corporartions. It was held that the State and its machineries (in the instant case,
the Muncipal Corporation) are bound to assure hygienic conditions of living and therefore,
health.
The Karnataka High Court has deliberated on the right of an individual to have access to
166
drinking water. In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad , the
High Court has held that the right to dig bore wells therefore can be restricted or regulated
only by an Act of legislature and that the right to life includes the right to have access to clean
drinking water.
The High Court of Rajasthan has held that stray animals in urban areas pose a danger to
people and also cause nuisance to the public. The question before the court was, does the
negligence of restraining the number of these animals violate Art 21 of the public at large?
The court found that stray animals on the road interfere with transportation, polluted the city
and therefore posed a health risk to people. It was held that public nuisance caused by these
stray animals was a violation of Art. 21,of the public at large.
With regard to maintaining a clean environment, which is critical to a person’s

health, there are many questions that Courts have deliberated on. For example in Municipal
Council, Ratnam v Shri Vardichan, where the Court had been called upon to decide whether
municipalities are obligated to maintain certain conditions to ensure public health. It was held
by the court that a public body constituted for the principal statutory duty of ensuring
sanitation and health is not entitled to an immunity on breach of this duty. Further, “pollutants
being discharged by big factories… are a challenge to the social justice component of the rule
of law”.
Also in Santosh Kumar Gupta v Secretary, Ministry of Environment, New Delhi,
166
MX v. ZY, A.I.R. 1997 Bom. 406

contended that the policy, controls/regulations and their implementations are inadequate
thereby causing health hazards. In its judgements, the High Court of Madhya Pradesh has laid
down that pollution from cars poses a helath hazard to people and that the State must ensure
that emission standards are implemented maintained.
In the land mark MC Mehta v Union of India, the Supreme Court has held that
environmental pollution causes several health hazards, and therefore violates right to life.
Specifically, the case dealt with the pollution discharged by industries into the Ganges. It was
held that victims, affected by the pollution caused, were liable to be compensated.
There is sufficient case law on the issue of health in State run institutions such as
remand homes for children and “care homes”. In Sheela Barse v Union of India and Another
a case pertaining to the admitting of non-criminal mentally ill persons to prisons in West
Bengal, the Supreme Court has held that “(1) Admission of non-criminal mentally ill persons
to jails is illegal and unconstitutional…. The Judicial Magistrate will, upon a mentally ill
person being produced, have him or her examined by a Mental Helath
Professional/Psychiatrist and if advised by such MHP/Psychiatrist send the mentally ill
person to the nearest place of treatment and care.” It has further directed the state to improve
mental health institutions and integrate mental health into primary health care, among others.
Any amendment guaranteeing the right to health should have a focus on primary
health care, which is preventive and curative. It should also have specific focus on the health
of women- more specifically reproductive health, children, and the disabled- both physically
and mentally.
Keeping this in mind there must be more detailed examination of an amendment to

the Constitution, guaranteeing the right to health.

Medical Profession
White collar crimes are characterized by “deceit, concealment, or violation of trust and are
not dependent upon the application or threat of physical force or violence. Such acts are
committed by individuals and organizations to obtain personal or business advantage” (Ref. 1,
p 3). Health care fraud is a form of white collar crime that may be committed by health care
providers, consumers, companies providing medical supplies or services, and health care
organizations. There is a trend toward increased participation by organized crime groups in
complex health care fraud schemes.167 There are many different types of illegal and unethical
schemes that constitute health care fraud. The common types of fraud committed by
physicians include billing for services that were never rendered, providing unnecessary
treatments or tests, up coding (billing for a more expensive diagnosis or procedure), falsifying
or exaggerating the severity of the medical illness to justify coding, and accepting kickbacks
for referral168.
Health care fraud has failed to capture the attention of the public or the media. There has been
renewed interest by political leaders and prominent government officials in raising public
awareness of the enormity of the problem. In addition, investigation of health care fraud is
fast becoming one of law enforcement's major priorities.
Health Care Fraud is expected to continue to rise as people live longer. This increase will
produce a greater demand for Medicare benefits. As a result, it is expected that the utilization
of long and short term care facilities such as skilled nursing, assisted living, and hospice
services will expand substantially in the future. Additionally, fraudulent billings and
medically unnecessary services billed to health care insurers are prevalent throughout the
country. These schemes are becoming increasingly complex and can be perpetrated by
167
Federal Bureau of Investigation: Financial crimes report to the public, fiscal year 2007. Available at:
http://www.fbi.gov/publications/financial/fcs_report2007/financial_crime_2007.htm. Accessed June 4, 2009
168
National Health Care Anti-Fraud Association: Fighting health care fraud: an integral part of health care
reform. Washington, DC: NHCAA, June 2009.
Availableat:http://www.nhcaa.org/eweb/docs/nhcaa/PDFs/Member%20Services/Fighting%20Health
%20Care%20Fraud_NHCAAJune2009.pdf. Accessed June 29, 2009

corporate-driven schemes and systematic abuse by certain provider types.169
The majority of the people belonging to the medical profession may not commit criminal or
unethical acts in the course of there profession but still the number of those who violate the
professional and legal norms is not insignificant. The most common instances are:
 Illegal abortions.
 False medical certificates.
 Secret service to dacoits by giving expert opinion leading to their acquittal.
 Selling sample drugs or medicines to patients and chemists.
 Unnecessary prolonged treatment in many cases with a view of extracting huge

sums from patients.
 Prescribing medicines which one is not supposed to having regard to his training
or the system of medicine permitted to be followed by him.
What is Health Care Fraud?
• Altered or fabricated medical bills and other documents.
• Excessive or unnecessary treatments.
• Billing schemes, such as:
--charging for a service more expensive than the one provided.
--charging for services that were not provided.
--duplicate charges.
• False or exaggerated medical disability.
• Collecting on multiple policies for the same illness or injury.
C:\Document\Healthcare Crimes Attorney - Houston Criminal Lawyer - John T_ Floyd Law Firm -
169
Houston,Texas - Houston Criminal Defense Attorney.mht

The person employed in essential services of the government or other undertaking are often
confronted with the problem of getting leave due to shortage of staff. They therefore, procure
medical certificate regarding their false sickness and produce it to the department to justify
their absence from duty. In return, they have to pay certain amount to the concerned medical
staff. Thus, this tactics have proved a boon and a workable alternative to employees who have
difficulty in obtaining leave from their employer.
Fake and misleading advertising make false claims of medical cure through advertisement in
Newspapers, Magazines, Radio, and Television. Thus, it is adding to human misery. Many
patent medicines are not only worthless but harmful. Similar advertisement for cosmetics and
adulterated food are also widespread in practice which are injurious to public health. These
persons may not break the letter of the law but, by violating its spirit, they commit crimes
which are not only anti-social, but also injurious to public health.
As a survey declares “the number of quacks in our country exceeds the number of doctors.
Even if one quack causes the death of one patient in one year due to wrong diagnosis and
treatment, nearly 95,000 silent murders take place across the country” 170, it becomes almost
necessary to investigate quackery.
The Oxford Dictionary defines a quack as “a person who pretends to have medical skill or
knowledge”. The FDA defines health fraud as “the promotion, for profit, of a medical remedy
known to be false or unproven.”171 It is said that judgments about individual methods should
be based on whether or not there is scientific evidence of effectiveness .172 However, quackery
is not confined to charlatans exploiting their victims but also extends to the sale of
inappropriate products, or even manufacturers advertising specious products. Lately quackery
has been on the rise especially in the rural areas. The outbreak of chikungunya was a boost for
the trade of quacks.173 A survey conducted by AIIMS showed that 93% of the Delhi slum
170
Dr. G. M Bhatia, Secretary, Association of Medical Consultants. “IMA lodges complaint against 25
quacks - Hospinews - Healthcare Management.” Express Healthcare,
<http://www.expresshealthcaremgmt.com/20020715/hospi5.shtml>, (last visited on 19 th November, 2012).
171
<http://www.quackwatch.org/01QuackeryRelatedTopics/quackdef.html>, (last visited on 23 rd march,
2012)
172
Ibid.
173
<http://www.hindu.com/2006/09/30/stories/2006093000500300.htm>, (last visited on 18th March, 2012)

dwellers depend on quacks for medical treatment which accounts for the fact that there are
over 50,000 quacks in Delhi. There are plenty of products circulating the market that do not
meet the standards. The sources may appear bona fide but may not be. As stated by S.N.
Mishra174 ‘The central government does not appear serious about the problem of quackery’
which helps us understand the apathy towards the anti-quackery bill that was proposed after
the kidney scam.
The law does not define or deal with quackery expressly and thus, this article proposes to
locate the laws that look to curb and punish quackery and bring to light the problems lying
therein and the need for measures.
Indian Penal Code, 1860
Cheating: The question that arises when a quack takes money in return of the ostensible
service that he provides is whether this constitutes the offence of cheating and whether he can
be charged under Section 420 of the Indian Penal Code (IPC). The authors of the Draft Indian
Penal Code said that they proposed to punish a man who, by false representations, obtained
an advance of money, not meaning to perform the service or to deliver the article for which
the advance is given and a man who by falsely pretending to have performed work for which
he was hired, obtains pay to which he is not entitled.175
When a person under the veil of being a doctor or having some quick remedies leads the
ignorant victim into erroneously believing that he can cure his disease or distress by way of
medicine or prayer or any such method is deceiving that person, he is said to have done it
fraudulently, that is, with the intent to defraud where defraud means the loss of money of the
person so deceived in exchange of the false belief of his well-being which can be dangerous
to his body. He also does it dishonestly as he is trying to cause the wrongful monetary gain to
himself and the wrongful loss of money and the danger that persists on the body of the
disease not being properly diagnosed. The requirement of inducement is realized when the
deceived person pays the quack the money as the victim has then acted upon the deception of
the quack. The quack has, by his fraudulent misrepresentation, induced the hopeful person to
deliver him the money which the person would not have done without such deception. This
174
President of the Indian Medical Association
175
Justice M.L Singhal, and Sabiha.”Indian Penal Code”, Allahabad: Premier Publishing Co., 2003

has caused the victim the damage of loss of money without getting the service promised.
Thus, it would constitute the offence of cheating.
The Supreme Court176 took a positive step by upholding that when somebody represents
himself to offer prayers to God for healing the sick and thereby induces another person to
give him money or any other article and does not get a result, it is fraudulent representation
and the Court can in such situations presume that the offence of cheating under the ambit of
section 420 has been committed leaving the accused to rebut the presumption.
Thus, quackery falls under the definition of cheating and the offender can be punished under
section 420 for a term extending to seven years. The Court should, in such cases presume the
offence to be committed by such person as the Supreme Court has suggested so that such
malpractices that have a large adverse effect on the people can be punished severely and thus,
be deterred.
Forgery: Section 471 of the Indian Penal Code, 1860 states that forgery is committed when a
person fraudulently or dishonestly uses as genuine any document which he knows or has
reason to believe to be a forged. The phrase ‘uses as genuine’ as held by the Calcutta High
Court means that when a person presents a document to another knowing or having reason to
believe it is forged the document is used as genuine within the section. Further under this
section the use of the document as genuine is relevant and not if the person to whom it is
presented believes or treats it to be genuine. 177 Furthermore it was held in the case of Mulai
Singh178 that when a person took forged copies and presented in support of his title he was
held liable under section 471 of the Indian Penal Code, 1860.
Quacks also present documents knowing them to be false in order to support their title and
show that they are qualified in the medical field. This attracts section 471 of the Indian Penal
Code, 1860 since quacks by forging documents and presenting them fulfil the two ingredients
of the section that being fraudulent or dishonest use of a document as genuine and the
knowledge or reason to believe that such a document is forged.
176
Shri Bhagwan Samardha v. State of Andhra Pradesh, AIR 1999 SC 2332
177
Shivaji Narayan Shinde v. State of Maharshtra, (1971) 73 Bom LR 215
178
(1906) 28 All 402

Offences Committed as a Consequence of Quackery: Now we shall deal with the liability
of quacks when they give a wrong treatment or carry out an illegal act under the IPC leading
to an undesirable consequence.
Public Health, Safety and Morality: When a person (i) does an act negligently or
unlawfully, (ii) which is likely to facilitate spreading of a disease, (iii) the disease being
infectious and dangerous to life and (iv) knowing or having reason to believe that this act is
likely to spread the disease, section 269 of the Indian Penal Code, 1860 is applied. Taking for
instance a faith healer179 who claims to cure AIDS by his prayers, tells an HIV positive patient
that he has healed him and this patient in the wrong belief of his well-being has sexual
intercourse with his wife who in turn contracts the disease from him. This quack has
unlawfully and negligently facilitated the spreading of a dangerous disease like AIDS which
he had reason to believe as his faith healing practice was a hoax. Thus, he can be punished
under this section for six months.
Miscarriage: The Medical Termination of Pregnancy Act, 1971 makes a ‘registered medical
practitioner’ immune from the provisions against miscarriage contained in the Indian Penal
Code and section 4 of the Act also says that an abortion can be done only in a hospital
established, maintained or approved by the government. But a quack, not being a registered
practitioner (unless he has obtained a name in the register by misrepresentation), is not
immune from these provisions. Such a person is then liable to be punished under sections 312
to 318 of the Indian Penal Code, 1860 regarding miscarriages which have various
punishments including imprisonment for life. Some of these offences exclude those acts done
in good faith, but, since quacks cannot be said to act with due care and attention, there is no
good faith and thus, they can be punished under those provisions.
Hurt and Grievous Hurt: If the alleged treatment causes hurt or grievous hurt to the patient,
the quack can be charged for voluntarily causing hurt or grievous hurt, which may also be by
dangerous means as the ‘magical remedies’ which the quacks use may be of poisonous
nature. He can be said to voluntarily cause it as he has reason to believe that the means may
cause hurt or grievous hurt. Also, section 328 of the Indian Penal Code, 1860 provides that
when a person causes hurt by means of a poison with the intent to commit an offence, he can
be imprisoned for ten years. In this section offence means an offence under any law as
179
Rajesh Kumar Srivastava v. A.P. Verma and Ors, AIR 2005 All 175

mentioned in section 40 of the Indian Penal Code, 1860 and thus, a quack administering any
such poison can be punished under this section as being an unregistered or a falsely registered
practitioner committing an offence under various Acts as discussed below.
Death: If death is caused by the administering of some terminal substance or doing some
gross act of negligence by the quack in treating a person, the question arises as to whether he
can be convicted under s. 302, 304, or 304A. If there is a small mistake on the part of the
quack, it would be a rash and negligent act punishable under section 304A as he would have
the consciousness that he is in no position to treat the patient and thus can cause harm to him.
A quack who gave the patient an injection for bad cold which resulted in the death of the
patient was convicted under section 304A as the medicine was not wrong but was
administered incorrectly.180 This judgement was later criticized in Juggankhan
Jamshankhan v. State181 which took a stronger viewpoint. The Court said that the former
judgement did not take into consideration the fact that the system which the quack was
practicing did not recognize the system of injections. The Court was of the opinion that in
cases where the drug was fatal and not the one usually prescribed, the act will fall under the
definition of murder. Thus, such a heinous act causing death will be punished by
imprisonment for life.
General Exceptions
Sections 80 and 81: Section 80 of the IPC, 1860 states that “nothing is an offence which is
done by accident or misfortune and without any criminal intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means and with proper care and caution.”
The Supreme Court in Bhupendra Singh A Chudasama v. State of Gujarat182 held that the
primary requirement of the exception under Section 80 of the IPC, 1860 is that the act which
injured the victim should have been done with proper care and caution. In the case of
quackery the quack does not exercise any proper care or caution. He does not inform the
patient that he is not qualified and still performs operations on him, prescribes medicines and
180
Khushaldas v. State, AIR 1960 MP 50
181
AIR 1963 MP 102
182
AIR 1997 SC 3790

suggests incorrect medical advice which might injure the patient. Therefore the defence of
accident under Section 80 of the Indian Penal Code, 1860 cannot be taken by quacks.
Section 81 of the Indian Penal Code, 1860 provides that when an act is done with the
knowledge that it is likely to cause harm and is done with no criminal intention and in good
faith then the act is not an offence. Again in order to use this defence it is necessary the
accused acted in good faith for which according to section 52 of the Indian Penal Code, 1860
in order to establish good faith one has to show due care and attention which quacks do not
show towards their patients.
Consent: Section 88 of the Indian Penal Code, 1860 provides that if a person has given
consent (implied or express) in good faith to suffer a harm or take the risk of suffering a harm
then the person who might cause the harm is not liable under the Indian Penal Code, 1860.
This particular section is used by quacks to defend themselves from any charge under the
Indian Penal Code, 1860. They (quacks) claim that the patients who approach them for
treatment give consent to suffer harm or take the risk of the harm. However the patients do so
when they believe that the person treating them is doing so for their benefit in good faith. In
the case of quacks there is no element of good faith though the treatment is for the benefit of
the patient. Good faith according to Section 52 of the Indian Penal Code, 1860 clearly states
that to establish good faith one has to show due care and attention. Thus by not having the
required qualifications to practice the required field of medicine and by not telling the patient
about such information the quack is not taking due care and attention. Thus a quack cannot
claim the defence of ‘consent’
This was also held in the case of Juggankhan Jamshankhan v. State183 which stated that ‘a
patient who puts himself under the treatment of a medical practitioner qualified or otherwise
gives an imp-lied consent to suffer the harm and to take the risk’. But if the medical
practitioner performs certain activities which a qualified practitioner would not do, then the
consent is not consent in good faith. The court further stated that ‘If a person sets out to be a
doctor without knowing anything of the job, and tries to do the best he could under the
circumstances, he would still be acting in bad faith, because he has set himself up as a doctor
without the appropriate education, training and experience…. The two elements of consent on
183
Supra pg no.

the part of the patient and of good faith on the part of the medical practitioner are inter-
dependent and nobody can claim the benefit of this exception without good faith.’184
Thus, a quack who does not have the required qualifications cannot claim for the defence of
consent even if he is doing it for the benefit of the other.
Section 92: Section 92 of the Indian Penal Code, 1860 makes an act, which in good faith is
done without the consent of the person for whose benefit it is done and consent is not possible
to be obtained an exception. Firstly, as explained before, no act done by a quack can be said
to be done in good faith and secondly, an act done by the quack would be said to harm the
individual rather than benefit him. Thus, this exception does not apply.
Legislations
Indian Medical Council Act, 1954
This Act is for the matters connected to modern scientific medicine. The Indian Medical
Council and the State Medical Councils are formed under the Act as regulators. It regulates
and recognises the Universities that grant medical qualifications to people. For quacks
practising modern medicine, complaints can be lodged under section 15 of Indian Medical
Council Act, punishable with one year imprisonment or fine of one thousand rupees. A person
can also be removed from the Indian Medical register for not having the requisite
qualification. Under Sections 16 to 19A, the Medical Council has the power to inspect the
universities as to the courses of study and examination and can withdraw recognition if the
courses of study, equipment, training, etc. do not conform to the standards prescribed by the
council. The Council should have a strict yardstick and inspections should be made regularly
to improve the standard of doctors. An Indian Medical Register has to be maintained which
contains all the names that are enrolled on any State Register. Although, the registrar’s
‘satisfaction’ as to the person’s medical qualification is required, the registrar may almost
never have looked into the person’s qualification but only accepted the State register. The
Council can constitute an Executive committee for any special purpose under section 9. The
Delhi Medical Council has set up such an anti-quackery committee. Such a committee must
184
Ibid.

be formed for the purpose of quackery that looks to implement new methods of controlling it
and has regular surveys to catch hold of any malpractice.
Indian Medical Central Council Act, 1970
This Act is similar to the Indian Medical Council Act but regulates Indian medicines, that is,
Ayurveda, Siddha and Unani Tibb. It provides for the formation of committees for special
purposes which can be used to check quacks that prevail in such fields of medicine. It also
gives the same penalty as the abovementioned act for practice in Indian medicine. Also, the
same provisions of inspection and registering are incorporated in this Act. Moreover there is a
lot of controversy regarding human and animal bones in ayurvedic medicines. There need to
be serious measures taken by the Central Council for Indian Medicine to control such
practices.
The Dentists Act, 1948
By section 17A of the Dentists Act, 1948, the Dental Council of India is empowered to lay
down standards of professional conduct and etiquette or code of ethics for dentists and a
person violating these standards shall be removed from the register by virtue of section 41.
Section 41 also says that a person may be removed from any register by an order of the State
Council if his name has been entered in the register by an error or misrepresentation or if he
has been convicted for an offence or has been guilty of any infamous conduct in any
professional respect. Such a removal would render the person ineligible for registration in the
State and prohibit him from getting his name registered in another State without permission
from the former State. This matter cannot be taken up by any Court by virtue of section 43
which prevents any in fructuous appeal. Also, section 47 further prevents malpractices by
quacks in the form of a penalty for falsely claiming to be registered as dentists. Any person
who falsely tries to suggest by any action that he is a registered dentist will be imposed with a
fine extending to rupees five hundred or on being caught again he can be imprisoned to an
extent of six months with fine extending to one thousand rupees. Section 48 prescribes similar
penalties for (mis)using titles of dental practitioner, dental surgeon, dentist, a degree, etc.
without actually being qualified or as section 49 sets down penalties proscribing an
unregistered practitioner. The above provisions look to clearly catch hold of quacks.

The Drugs and Magical Remedies (Objectional Advertisements) Act, 1954
This Act, established with the purpose of controlling and prohibiting advertisements of
remedies alleged to possess magical remedies, looks to control much of the quackery that
takes place in villages as most of the people there are vulnerable to such practices as their
conservative beliefs make them want such remedies. Section 3 of the Act prescribes that no
person should take part in the publicity of any advertisement suggesting the use of any drug
for procurement of miscarriage, prevention of conception, improvement of a person’s
capacity of sexual pleasure, correction of menstrual disorder or diagnosis, cure, mitigation,
treatment or prevention of any disease, disorder or condition which are specified in the
schedule. Section 4 deals with an advertisement of any drug giving a false impression or
making a false claim. Section 5 deals with the prohibition of advertisement of magical
remedies that claim to be useful for purposes mentioned under section 3. A person violating
these provisions can be imprisoned to an extent of six months on first conviction and one year
on any subsequent conviction. These provisions are a clear check on those quacks who
exploit the ignorance of people to trick them. People easily fall for such claims of quick
remedies being left with no option since their ailment has no definite treatment.
Drugs and Cosmetics Act, 1940
The Act regulates the manufacture, sale and import of drugs and cosmetics. Section 6 of the
Act provides for a setting up of a Central Drugs laboratory for testing sample drugs in order
to declare them safe. This helps in ensuring that the wrong drugs are not in the market.
Section 8 provides for a standard of quality for the drugs and cosmetics, while section 9
clearly defines what misbranded, adulterated and spurious drugs and cosmetics are in order to
recognise such products before they are allowed to be manufactured, sold or imported.
Section 10A gives the power to the Central Government to prohibit import of drugs and
cosmetics in public interest, while section 13 lays down the punishment for violating the Act
in terms of import of drugs and cosmetics. Chapter IV deals with the manufacture and sale of
drugs.
Furthermore, in order to check fake medicines, section 26A gives the Central Government to
prohibit manufacture etc of drugs and cosmetics in public interest and Section 27 lays down
the punishment for violating the provisions relating to manufacture. Thus, the above sections

show that the Act looks to do away with quackery from its very foundation by preventing the
import and manufacture of unsafe products.
Other Legislations
The Indian Medical Degrees Act, 1916, while regulating the granting of medical degrees in
western medical sciences and the assumption and use of such degrees by unqualified persons,
imposes fines upon those persons who falsely claim to hold degrees or licences to practice
western medical sciences by virtue of section 6.
Section 36 of The Pharmacy Act, 1948, like the Dentists Act, 1948, provides for removing the
name of a registered pharmacist from the register owing to his misrepresentation or
suppression of material facts. Even under the Homeopathy Central Council Act, 1973 a
person who does not have the requisite medical qualification to practise homeopathy can be
removed from the register.
Suggestions
The Supreme Court in D.K. Joshi v. State of U.P185 has also suggested that District
Magistrates and Chief Medical Officers of the state should recognise, within a time limit,
unregistered practitioners, take necessary legal action, monitor the legal proceedings and
lastly The Secretary, Health and Family Welfare Department should monitor the actions taken
by all District Magistrates and all Chief Medical Officers. These were progressive directions
and thus, must be implemented by all.
All the three systems of medicine, that is, modern medicine, Indian medicine and
Homeopathy can be misused. Thus, a combined effort of the three councils, namely the
Indian Medical Council, Central Council for Indian Medicine and the Central Council for
Homeopathy should be made to restrain quackery if not eliminate it. A new legislation solely
dedicated to quackery must be tabled in the parliament and considered seriously by the
government in collaboration with the suggestions of the three councils. The main aim of this
legislation should be to check the proliferating rate of unauthorised practitioners as well as
institutions which provide certificates and titles to such persons and punish them severely.
185
(2000) 5 SCC 80

Under the legislation all persons who are not registered under the acts must be said to be
quacks so as to prevent any claim of individuals practicing any alternative medicine. The
practice of registered persons must also be put under the scanner as they can also give false
treatments harming people and their act shall be deemed to be no different than quacks. Any
sort of medication must be the one scientifically proven. An authority must be set up under
such an act to take up matters for quick redressal. The punishment for quackery must be
increased from the present one year punishment and even registered practitioners and
institutions, if convicted, must be imprisoned.
The Distinction Between Health Care Fraud and Health Care

Abuse
Many people speak about health care fraud and health care abuse synonymously. Although
closely related, the term “health care abuse” does not lend itself easily to a precise definition,
Greg Dean said “insurers generally use [the term] to mean any activity that unjustly robs the
health care system but does not constitute fraud. In abuse, a consumer or provider may obtain
money or health care services to which he is not entitled, but there is not the intent to deceive

that is necessary for fraud to have occurred.” Dean listed the following examples of health
care abuse:
•A surgeon deliberately submits a bill for a procedure she did not perform. This is fraud
because the surgeon is knowingly and intentionally making a misrepresentation in order to
realize a financial gain.
•A physician regularly conducts unnecessary lab tests because she believes them to be
necessary. This is abuse because the health care system is making illegitimate expenditures
and the physician is receiving payments she is not entitled to. But this is not fraud because the
physician is not making a misrepresentation. (The physician accurately reports the tests she
has conducted, and her opinion that the tests are necessary is sincere.)
But the primary distinction between fraud and abuse is that fraud is a criminal act while abuse
is normally not. When abuse occurs, the insurer may elect to recover the money that should
not have been paid in a civil proceeding because generally a crime has not been committed.
Human Organs Transplant Laws in India

The term organ transplant refers to the transplantation of an organ from one body to another.
The person who receives the organ is the recipient and one who gives is called the donor. This
procedure is undertaken for the replacement of the damaged organ in the body of the recipient
with the working organ from the body of the donor. The organ donor can be a deceased or
alive.
Organ Transplantation is considered to a boon for the medical industry as this procedure
can help in saving lives of people who would die because of their dysfunctional organ. It is

important that before this process is conducted several related laws should be kept into
consideration. Medical India Tourism offers to give you online information on Human Organ
Transplant Laws in India, India.
Some of the organs that are mainly donated are kidney, Liver, heart, lung, pancreas, small
bowel and sometimes skin along with the other things. In the earlier times illegal organ
trafficking is a major problem because of corrupt and inefficient health care system. For
stopping illegal organ transplant, the Government of India had come up with certain laws in
1994 that made organ sale a crime. The Human Organs Transplant Act, 1994 laid down
certain rules and regulations that were to be followed while conducting organ transplant.
According to Organ Transplant Laws, no money exchange between the donor and the
recipient was allowed. According to the 1994 Act, the unrelated donor had to file an affidavit
in the court of a magistrate stating that the organ is being donated out of affection. Later, the
donor had to undergo a few tests before the transplant. The Authorization Committee checked
all the supplied documents.
As per the Indian Law, sale of organs was banned. Thus, no foreigner could get a local donor.
In case of money exchange, the offender had to pay heavy penalty. Close relatives of the
recipient like siblings, parents, children and spouse could donate the organ without clearance
from the government. However, they were required to appear before the authorization
committee for clearance and approval.
Aim of Transplantation of human organs act, 1994
The Government passed an act in 1994 to rationalize organ donations and transplants in the
country. The main aims of the act:
 Regulating removal, storage and transplantation of human organs for therapeutic

purposes.
 Accepting brain death and making it possible to use these patients as potential
organ donors.
 Preventing commercial dealings of organs.
After this deal, the concept of brain death was legalized for the first time in India.

The Transplantation of Human Organs (Amendment) Bill, 2009
The Bill passed in 2009, made certain changes and alterations in the previous laws. This
Amendment Bill offers regulation of the transplantation of human tissue along with organ
transplant. It was made necessary that the medical staff looking after the patient to put
forward a request to the relatives of the brain dead person form donation of organs. It was
necessary that every organ donation case should go to the Authorisation Committee first.
Highlights
 The bill made amendments in the Transplantation of Human Organs Act, 1994.
 Along with human organs, the Bill also regularized the transplantation of tissues
of the human body.
 The act permitted donations from living persons who are near relatives. This act
also added grandparents and grandchildren to the list of “near relative”.
 The doctor had to inform the patient or his relatives about the possibility of organ
donation and made sure that they given their consent to it.
 If the organ of the donor and the recipient does not match medically, the bill gave
a permission to swap organs with another pair of such a person.
 The bill made an increase in the penalty for illegal removal of human organs and
for receiving or making payment for a human organ.
Key Issues and Analysis
 The bill became strict in curbing commercial human organ trade but made organ
availability easier for transplantation for needy patients.
 The donor as well as the recipient would get penalized in case there is any
involvement of money in the transplant.
 If organ donor is not a “near relative”, he required prior permission from the State
Authorisation Committee.
 The bill offered for the establishment of Advisory Committees.
The Transplantation of Human Organs (Amendment) Bill,2013

The state health department, a few months back, came- up with a composite set of guidelines
for dealing with with deceitful practices and for countering illegal organ transplant. Now
along with an authorization committee, there will be a ‘Verification Committee’ as well in
every block for the verification of the details that are offered by the donor and recipient. It
will also look after all the other legalities of the matter of organ transplant.
Going for an organ donation?
There are mainly 2 types of donations –
1. Live donation – Where organ transplant takes place between the patient and his
close friend or a family member
2. Cadaveric donation- Where a person pledges his organs for harvesting and
donated after his death.
Keep the following in mind, if you are donating to your own family member:
 Leaving other states apart, if you live in Maharashtra and want to donate an organ
to your family member, you will need an NOC from the government.
 Before the donation starts, one has to undergo a complete health check- up along
with a blood cross matching test.
Cadaver donation means that a person takes a pledge to donate his organs after death. Here
the organs of a person are harvested after the person is declared brain dead. In case of cadaver
donation keep the following in mind:
 If you want to donate an organ, you need to register with any NGO who will
arrange an organ donation card for you.
 It is important that you should inform your family about your wish so that after
your death they give a permission to the doctor for organ harvesting.
 As per the rules, once the donation is done, the body has to be returned to the
family members in an aesthetic manner, covering it properly.
 After being declared brain dead or after death, the organs are tested fir their
usability.

 If once suffers from kidney disease, liver failure or heart conditions etc., organs
cannot be used.
 One can donate his skin, eyes, liver, lungs, kidneys, and sometimes intestines.
For Recipients:
In case you are on the receiving side, you should be aware of the following:
 Register yourself with the Zonal Transplant Coordination Center (ZTCC) for
cadaveric donations, as per your need and get an NOC.
 You can take the assistance of your physician who can also guide you through the
process of registering.
 Every available organ has to go through a cross match test. In case the result is
negative, the doctor does not go for the transplant.
Whatever the kind of transplant is, the donor goes through the following:
Blood Type Testing: This test for finding one’s ABO blood group so that there is no
mismatching in the blood groups.
Serology: Another blood test to check for transmissible diseases like HIV, CMV and
hepatitis.
Crossmatch: This test determines If the recipient's antibodies will accept or reject the donor
kidney.
Human Leukocyte Antigens (HLA): This is a blood test is also known as tissue typing.
Organ trafficking 186 is gaining world-wide attention as indicators suggest that the market in
organs is a global phenomenon that continues to expand. Research findings, particularly
since the1990s, have revealed grave consequences of this largely black—market (Abouna
186
Scholars grapple with various terms to describe this phenomenon including “organ trafficking,” “transplant tourism,”
“organ trade,” and “organ fraud.” The United Nations Trafficking Protocol describes that organ trafficking occurs
where a third party recruits, transports, transfers, harbors or receives a person, using threats (or use) of force, coercion,
abduction, fraud, deception, or abuse of authority or a position of vulnerability for the purpose of removing that persons
organ/s. Where children are concerned, the removal of an organ(s) facilitated by a third party constitutes trafficking with
or without considerations of deception or coercion. Third parties may include brokers or others such as medical
professionals or laboratories acting as brokers. Global decreases in prices for organs, such as kidneys, indicate that the
market is expanding. Additionally, countries such as China and Pakistan have hosted significant increases of transplant
tourists.

1993, 2003; Abouna et al. 1984; Budiani 2006; Cohen 2002; Daar 1989, 1991, 2001, 2004;
Goyal et al. 2002; Masri et aI. 1997; Riad 2001; Scheper—Hughes 2000, 2002, 2002b;
Shaheen 2001; Zargooshi 2001). These include an increasing reliance upon commercial
donors (rather than non—living and living related donors) via sophisticated international
brokers; identified health, economic, social, and psychological consequences for donors; a
compromised ability to continue manual labor jobs; incomplete payment of the agreed price
for an organ sale; and a lack of donor follow-up and general welfare concern.
In much of the Muslim world, fatawa (Islamic guidelines) and shariah (Islamic law)
have been issued which similarly deem paid donation as haram and thus condemn the trade.
These edicts largely exist alongside state laws within the Muslim world that also prohibit the
sale of human organs. The majority of Muslim scholars have agreed that organ donation is
permitted based on the conditions that 1) it will help the recipient with certainty, 2) it does not
cause harm to the donor, and 3). the donor donates the organ or tissue voluntarily and without
financial compensation. Many countries in the Middle East began transplantation programs,
particularly renal transplants, in the late 1 970s and early 1 980s and living donors continue to
be the main source of donorship. Despite these various mandates, organ trade also operates in
and via the Middle East and elsewhere in the Muslim world. A survey among transplant
specialists in twenty—one countries in the region indicates that donations from living
unrelated donors is a prominent issue facing regional organ transplant programs (Shaheen et.
al. 2001). Furthermore, many countries in the region do not have entities to administer fair
and just practices of organs distribution, rather than relying on the market as the distribution
mechanism. In this paper, we first discuss some of the dynamics of organ trafficking in the
Middle East, other predominantly Muslim countries and the particular case of Egypt. We will
next address the extent to which Islamic rulings have provided guidelines on transplants, how
these are engaged with other bioethical discourses on transplants. Finally, we will discuss an
initiative to bring together advocates, including the ‘ulama, bioethicists, state officials, and
key stakeholders including patients, donors, medical professionals, laboratories, and health
insurance companies with an aim to collectively bridge guidelines with practical solutions to
the problem of organs trafficking in the Muslim world.

MY OPINION
A medical expert does require considerable experience, coupled with a wide knowledge of the
relevant literature and techniques with the ability to discuss management in the specific
context. Within medicine there are many different sub-specialities and it is important for those
giving an opinion not to step outside their field of expertise. For instance, if the conduct of a
general practitioner is being called into question it is important that the expert has a close
knowledge of general practice and is not from another branch of medicine such as a hospital
doctor when discussing what standard of care is expected of a general practitioner. A true

expert therefore understands the standard of care in this specific context and they give a
reasoned conclusion in relation to any potential mis-management or, in the alternative, to
explain why in the specific circumstances what appears to be substandard treatment may be
acceptable. The investigation of potential medical negligence and the production of a
balanced report for the court is a very specific skill which requires an understanding, not only
of the medical but the legal process combined with good communication skills for the
presentation of both written and oral evidence. Whilst all may appear in court as a witness to
fact, the medical expert requires very particular training in the skills required for court, which
are not part of a routine medical education.
BIBLIOGRAPHY
PRIMARY SOURCES:
 Statutory Enactments and Instruments
 The Constitution of India.

 Consumer Protection Act, 1986.
 Drugs and Cosmetics Act, 1940.
 Foreign Exchange Management Act, 1999.
 Indian Medical Central Council Act, 1970.

 Narcotics, Drugs and Psychotropic Substances Act, 1985.
 Prevention of Corruption Act, 1988.
 Right to Information Act, 2005.
 The Code of Criminal Procedure, 1973.
 The Dentists Act, 1948.
 The Drugs and Magical Remedies (Objectional Advertisements) Act, 1954.

 The Homeopathy Central Council Act, 1973.
 The Imports and Exports (Control) Act, 1947.
 The Indian Medical Degrees Act, 1916.

 The Indian Penal Code, 1860.
 The Pharmacy Act, 1948.

 The Prevention of Food Adulteration Act, 1954.
 Unlawful Activities Act, 1967.
 Reports Referred
 Medical Council of India Report

Essential reading:
The ART of marketing babies Imrana Qadeer Indian Journal of Medical Ethics Oct-Dec 2010
http://www.issuesinmedicalethics.org/184ar209.html
India, the Rent-a-Womb Capital of the World Amana Fontanella-Khan Slate August 23
2010
http://www.slate.com/id/2263136/
Assembling the Global Baby Tamara Audi and Arlene Chang The Wall Street Journal
December 10, 2010

http://online.wsj.com/article/SB10001424052748703493504576007774155273928.html
Chapter 12: Gender. Case study: Commercial surrogacy. McKinnon: Issues in Political
Theory, Oxford University Press
http://www.oup.com/uk/orc/bin/9780199217007/01student/cases/mckinnon_ch12_cases.pdf
Comments and Suggestions on the Assisted Reproductive Technology (Regulation) Bill and
Rules-2008 (Draft) and request to incorporate suggestions Sama Resource Group for Women
and Health, Delhi December 2 2008
http://www.samawomenshealth.org/downloads/ART%20Bill%20Critique_Sama.pdf
SECONDARY SOURCES:
 Books Referred
 Devasia, V.V, Criminology, Victimology and Corrections, Edition-1992, Asish Publishing

House.
 Justice M.L Singhal, and Sabiha, Indian Penal Code, 2003, Premier Publishing Co.,
Allahabad.
 Mizell , Louis R., Masters of Deception: The Worldwide White-Collar Crime Crisis and
Ways to Protect Yourself.
 Paranjape, N.V., Criminology and Penology, 12th Edition-2006, Central law Publications,
Allahabad.
 Schmalleger, Frank, Criminology Today, Prentice Hall, Englewood Cliffs, New Jersey.
 Sharma, Mahendra Kumar, Minimum Sentencing for Offences in India: Law and Policy,
Edition-1996, Vedams Books Pvt. Ltd.
 Siddique, Ahmad, Criminology, Fifth Edition-2005, Eastern Book Company, Lucknow.
 Journals
 All India Reporter (AIR)

 Andhra Law Times (ALT)
 Indian Law Reporter (ILR)
 Rajdhani Law Reporter (RAJ)
 Supreme Court Cases (SCC)
 Supreme Court Reporter (SCR)
 The Indian Police
WEBLIOGRAPHY

 Manupatra.com
 www.hindu.com
 www.india.indymedia.org
 www.indianexpress.com
 www.investopedia.com
 www.juris.nic
 www.jurisonline.in
 www.lawcomissionofindia.com
 www.manupatra.com
 www.moneycontrol.com
 www.mosonleexparts.org
 www.ncjrs.gov
 www.nhcaa.org
 www.picosearch.com
 www.quackwatch.org
 www.scconline.com
 www.timesofindia.com

Seminar II

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Seminar II

Uploaded by

Copyright:

Available Formats

FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

“MEDICINE, PROFESSIONAL ETHICS, SURROGACY, FERTITLY TOURISIM,

I am thankful and fortunate enough to get constant encouragement, support and

2 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

This research was conducted using the ‘Doctrinal’ method of research.

Doctrinal legal research, as conceived in the legal research domain, is research

I located principles, rules or doctrines in statutory instrument(s), judicial opinions

Doctrinal legal research, thus, involves: (i) systematic analysis of statutory

3 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

 Medical Negligence And Consumer Rights: Emerging Judicial Trends

 Transnational Surrogacy And International Human Rights Law

 Why Surrogacy Is Different

 Surrogacy And Human Rights

 A “Right To Parent” For Gay Men?

 The Child’s Rights

 Dehumanising And Exploitative?

4 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

 The Medico-Legal Expert

 Human Organs Transplant Laws In India

 The Transplantation Of Human Organs (Amendment) Bill, 2009

 The Transplantation Of Human Organs (Amendment) Bill,2013

 Islam, Organ Transplants, And Organs Trafficking In The Muslim World:

5 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Medicine, Ethics and the Law

MEDICAL NEGLIGENCE AND CONSUMER RIGHTS:

EMERGING JUDICIAL TRENDS

6 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Patients as consumers and human rights

7 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

1. The Drugs and Cosmetics Act

These codes of ethics are based on various international codes like2

1. The Nuremberg Code

Avenues For Redressal Of Patients Complaints

8 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

9 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Consumer Protection Act And Its Application To Medical Profession

10 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

 Liability under the Consumer Protection Act

11 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

i) A duty of care in deciding whether to undertake the case;

ii) A duty of care in deciding what treatment to give; and

iii) A duty of care in administration of that treatment.

Medical Negligence: The Bolam Rule

12 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

13 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

14 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

medical profession in B. Jagadish v. State of A.P.16In a historic judgment in Nizam’s Institute of

V. Kishan Rao Case

15 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

16 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Medical Negligence and the Judiciary: The way forward

Why Are Rules Necessary

17 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

The Basis of the Rules

There are three mains sources of rules:

18 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

19 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

20 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

“Ethical Issues As To Commercial Surrogacy”

21 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

22 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Transnational Surrogacy and International Human Rights Law

23 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI