Medical Laws and Ethics in India

SEMINAR COURSE – III
MEDICAL LAWS AND LEGISLATION REGARDING
SURROGACY IN INDIA
Under the Supervision of:

Prof. Eqbal Hussain
By:
Arham Tanvir
9th Semester, 5th Year
B.A. LL.B (Hons.)
Student ID – 20157032
Faculty of Law, Jamia Millia Islamia, Maulana Mohammad Ali Jauhar Marg,
Jamia Nagar, New Delhi 110025, October 2019
DECLARATION
I certify that:
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”
1. The work contained in the thesis is original and has been done by myself under the
supervision of my supervisor.
2. The work has not been submitted to any other Institute for any degree or diploma.
3. I have conformed to the norms and guidelines given in the Ethical Code of Conduct of
the Institute.
4. Whenever I have used materials (data, theoretical analysis, and text) from other sources,
I have given due credit to them by citing them in the text of the thesis and giving their
details in the references.
5. Whenever I have quoted written materials from other sources and due credit is given to
the sources by citing them.
Date: 15/11/2019 Name of the Student: Arham Tanvir
Place: Faculty of Law, Jamia Millia Islamia Student ID - 20157032
2 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

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 Prof. Eqbal Hussain, 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.
Arham Tanvir

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

1. INTRODUCTION....................................................................................................
1.1. MEDICINE, ETHICS AND LAW............................................................
1.2. MEDICAL NEGLIGENCE AND CONSUMER RIGHTS:
EMERGING JUDICIAL TRENDS...........................................................
1.3. PATIENTS AS CONSUMERS AND HUMAN RIGHTS.......................
1.4. AVENUES FOR REDRESSAL OF PATIENTS COMPLAINTS..........
2. CONSUMER PROTECTION ACT AND ITS APPLICATION TO
MEDICAL PROFESSION.....................................................................................
3. MEDICAL NEGLIGENCE.....................................................................................
3.1. THE BOLAM RULE.................................................................................
3.2. LIABILITY OF DOCTORS FOR MEDICAL NEGLIGENCE
3.2.1. KISHAN RAO’S CASE
3.3. MEDICAL NEGLIGENCE AND THE JUDICIARY:
THE WAY FORWARD
4. FERTILITY TOURISM:.........................................................................................
4.1. “FERTILITY TOURISM IN INDIA IS EXPLOITATIVE”
5. SURROGACY: ........................................................................................................
5.1. “ETHICAL ISSUES AS TO COMMERCIAL SURROGACY”...........
5.2. TRANSNATIONAL SURROGACY AND INTERNATIONAL
HUMAN RIGHTS LAW.............................................................................
5.3. SURROGACY AND HUMAN RIGHTS.................................................
5.3.1. REPRODUCTIVE RIGHTS.........................................................
5.4. THE RIGHT TO HEALTH – CONSTITUTIONAL PERSPECTIVE.
5.4.1. LEGAL POSITION OF RIGHT TO HEALTHCARE...............
6. MEDICAL PROFESSION......................................................................................

6.1. HEALTH CARE FRAUD?........................................................................
6.2. INDIAN PENAL CODE, 1860..................................................................
6.3. LEGISLATION..........................................................................................
6.3.1. INDIAN MEDICAL COUNCIL ACT, 1954................................
6.3.2. INDIAN MEDICAL CENTRAL COUNCIL ACT, 1970............
6.3.3. DENTIST ACT, 1948.....................................................................
6.3.4. THE DRUGS AND MAGICAL REMEDIES
(OBJECTIONAL ADVERTISEMENTS) ACT, 1954.................
6.3.5. THE DRUG AND COSMETICS ACT, 1940...............................
6.3.6. OTHER LEGISLATIONS............................................................
7. HUMAN ORGANS TRANSPLANT LAWS IN INDIA........................................
7.1. AIM OF TRANSPLANTATION OF HUMAN ORGANS
ACT, 1994.....................................................................................................
7.2. THE TRANSPLANTATION OF HUMAN ORGANS
(AMENDMENT) BILL,2009......................................................................
7.3. HIGHLIGHTS..........................................................................................
7.4. KEY ISSUES AND ANALYSIS...............................................................
8. CONCLUSION ........................................................................................................
9. MY OPINION ..........................................................................................................
1. INTRODUCTION

1.1. 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.
1.2. 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.
1.3. 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. 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.
1
Changing Paradigm Of Consumer Protection- Patirnts As Consumer And Human Rights Pg 77 IJLS vol . 04,
No. 04, August 2013
2
Pg 77 IJLS vol . 04, No. 04, August 2013

The rights of patient cover a wide spectrum of ill as well as healthy persons.
1.4. 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 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.
2. 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
3. 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”.
3.1. 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
3
Indian Medical Association V. V P Shantha and others
4
AIR 1989 SC 1570
5
AIR 1969 SC 128
6
(1957)1 WLR 582

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 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.
3.2. 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
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.

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 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
12
(2005) 6 SCC 1

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 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.
3.2.1. 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
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
16
(2009) 1 SCC 681
17
(2009) 6 SCC 1
18
(2010) 5 SCC 513
19
(2009) 3 SCC 1
20
Supra n.15

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 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.
3.3. 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
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

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’s26case
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”.
4. FERTILITY TOURISM
4.1. “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.
26
Supra n.19
27
(2009)1 SCC 8

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’?
5. SURROGACY
5.1. 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?
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]

 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, 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.
5.2. 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
29
Ibid.
30
. In the Matter of Baby M, 537 N.J. 396, 410 (1988).
31
. Id.

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
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
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].
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).

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

1) The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW);51 and
2) 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 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
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.”).
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).

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
5.3. SURROGACY AND HUMAN RIGHTS

5.3.1. 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.”64 It was not until the World Conference on Population in 1994 (Cairo
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
.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).

Conference) that reproductive rights were clearly articulated. 65 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.66
“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.” 67 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 highest
standard of sexual and reproductive health.” 68 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.69
Reproductive rights are increasingly recognized in international human rights law. 70 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.71
65
.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].
66
.Id. ¶ 7.12.
67
.Id. ¶ 7.16 (A number of countries entered reservations, specifically objecting to the word “individuals” in ¶
7.16).
68
.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).
69
.D. Marianne Blair et al., Family Law in the World Community 819–20 (2009) (describing the absence of
reproductive rights in Lebanon).
70
.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).
71
.See Blair et al., supra note 65, at 794.

The counterweight, of course, would be the impact on the gestational surrogate and the
resulting baby. CEDAW assures the rights of pregnant women. 72 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.” 73 These measures
include the prohibition of dismissal for pregnancy or maternity leave, 74 maternity leave with
pay or “comparable social benefits,”75 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.” 76 Article 12
requires 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 in the post-natal period, granting free services when necessary,
as well as adequate nutrition during pregnancy and lactation.”77 Article 14 reiterates the
right to family planning services for rural women in particular. 78 Finally, Article 16 requires
states to “take all appropriate measures to eliminate discrimination against women in all
matters relating to marriage and family relations.” 79 In addition to these specific guarantees,
Article 5 more broadly demands recognition of maternity as “a social function,” rather than a
commercial function.80
72
.CEDAW, supra note 22, art. 1.
73
.Id. art. 11.
74
.Id.
75
.Id.
76
.CEDAW, supra note 22, art. 11
77
.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).
78
. CEDAW, supra note 22, art. 14.
79
.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).
80

To the extent CEDAW focuses on the health of the pregnant woman, it is not inconsistent
with gestational surrogacy.81 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.82
5.4. THE RIGHT TO HEALTH – CONSTITUTIONAL PERSPECTIVE

5.4.1. LEGAL POSITION ON RIGHT TO HEATH CARE
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”83
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.
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.
81
.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.
82
83
Part IV, Constitution of India adopted on 26th November 1949

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.84. 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 India85. 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 Singh86 “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 Parmanand Katara Vs Union of India87. 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. 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
84
Mullin Vs Union Teritory of Delhi
85
AIR 1995 SC 636
86
AIR 1997 SC 1225
87
AIR 1989 SC 2039

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 Orissa88, 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 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, 89 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
88
AIR 1996 SC 2426
89
AIR 1997 Ori 37

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”.90 It found that the hospital did not error in
disclosing his status to his fiancé. In MX VS ZY 91, 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,92 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.
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
drinking water. In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad 93
, 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?
90
AIR 1996 SC 83
91
AIR 1996 SC 83
92
AIR 1999 SC 495
93
MX v. ZY, A.I.R. 1997 Bom. 406

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, 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.
6. 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.94 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 referral95.
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
94
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
95
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.96
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.
6.1. 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.
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,
96
C:\Document\Healthcare Crimes Attorney - Houston Criminal Lawyer - John T_ Floyd Law Firm -
Houston,Texas - Houston Criminal Defense Attorney.mht

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” 97, 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.”98 It is said that judgments about individual methods
should be based on whether or not there is scientific evidence of effectiveness .99 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.100 A survey conducted by AIIMS showed that 93% of the
Delhi slum 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. Mishra101 ‘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
97
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 19th November, 2012).
98
<http://www.quackwatch.org/01QuackeryRelatedTopics/quackdef.html>, (last visited on 23rd march, 2012)
99
Ibid.
100
<http://www.hindu.com/2006/09/30/stories/2006093000500300.htm>, (last visited on 18th March, 2012)
101
President of the Indian Medical Association

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.
6.2. 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.102
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 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 Court103 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.
102
Justice M.L Singhal, and Sabiha.”Indian Penal Code”, Allahabad: Premier Publishing Co., 2003
103
Shri Bhagwan Samardha v. State of Andhra Pradesh, AIR 1999 SC 2332

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. 104 Furthermore it was held in the case of Mulai
Singh105 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.
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 healer106 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
104
Shivaji Narayan Shinde v. State of Maharshtra, (1971) 73 Bom LR 215
105
(1906) 28 All 402
106
Rajesh Kumar Srivastava v. A.P. Verma and Ors, AIR 2005 All 175

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 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.107 This judgement was later criticized in Juggankhan

Jamshankhan v. State108 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.
6.3. LEGISLATIONS
6.3.1. 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
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.
6.3.2. INDIAN MEDICAL CENTRAL COUNCIL ACT, 1970
107
Khushaldas v. State, AIR 1960 MP 50
108
AIR 1963 MP 102

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.
6.3.3. 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.
6.3.4. 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.
6.3.5. 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.
6.3.6. 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.
6.4. SUGGESTIONS
The Supreme Court in D.K. Joshi v. State of U.P109 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.
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
109
(2000) 5 SCC 80

increased from the present one year punishment and even registered practitioners and
institutions, if convicted, must be imprisoned.
7. 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.

7.1. 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.
7.2. 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.
7.3. 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.
7.4. 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.
7.5. 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.
8. CONCLUSION
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.
On the scrutiny of leading medical negligence cases of India, certain principles should be
taken into consideration while pronouncing the judgment in medical negligence cases.
Negligence should be guided upon the principle of reasonableness of common man prudence
and negligence must be established in order to give the compensation in certain cases.
Medical profession requires certain degree of skill and knowledge, so the standard of care in
cases of medical professional is generally high and should also be taken into account while
giving the judgment.
A medical professional can be only held liable, when the standard of care is reasonably is
less than the reasonable care that should be taken from a competent practitioner in that field.
When a choice has to be made between certain circumstance when there is higher risk
involved and greater success is involved and lesser risk with higher chances of failure, the
facts and circumstances of the individual case should be taken into the consideration.
No negligence will apply on medical professional, when he performs his duty with the
utmost care that should be taken, and he had taken all the precaution.
Medical professional should not be harassed unreasonably and unwanted apprehension and
fear should not be created on the medical fraternity that they can give their best in certain
cases where it is required, they should be given some liberty in certain peculiar situation
where they need to make their judgment without any apprehension freely. So that it can be
beneficial for the society.
It is not stated that doctors are negligent or irresponsible but while performing the duty
which requires a lot of patience and care, often many practitioners fail or breaches their
responsibility towards the patient. Medicine which is one of the noblest professions requires

setting a realm which can benefit the victims of various diseases. Many doctors even the
specialist sometimes neglects small things to be taken care of while practicing which may
result in damages to the patients that could have been avoided or sometimes even the death
of the patients.
This type of professional negligence needs more focus than to include it in other laws or
statutes. An independent and unique legislature shall be set up to govern the malpractice. In
our country recently in a case Krishna Iyer v. State of Tamilnadu and Others[xxi] the
Apex Court awarded a compensation of 1.8 crores on July 1, 2015 as she lost her eyes in
1996. This is highest amount of compensation awarded in the country. Many activists and
the victims of medical negligence have been alleging to get redressal against malafied acts
of medical practitioners and doctors.
Not just for medicine, the law shall be made applicable to all the professionals practicing in
different areas which require a requisite amount of skill and duty of care. People in our
country are already victims of many diseases and are dying due to same, let’s make efforts to
reduce these deaths and focus on improvising the profession so that people do not die in the
place where they come to get healed.
9. BIBLIOGRAPHY
I. 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
 ARTICLES
 The ART of marketing babies Imrana Qadeer Indian Journal of Medical Ethics
Oct-Dec 2010
 India, the Rent-a-Womb Capital of the World Amana Fontanella-Khan Slate

August 23 2010
 Assembling the Global Baby Tamara Audi and Arlene Chang The Wall Street
Journal December 10, 2010

 Chapter 12: Gender. Case study: Commercial surrogacy. McKinnon: Issues in

Political Theory, Oxford University Press
 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
II. SECONDARY SOURCES
 BOOKS
 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
 WEBSITES
 www.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

Medical Laws and Ethics in India

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SEMINAR COURSE – III

MEDICAL LAWS AND LEGISLATION REGARDING

Under the Supervision of:

FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

Date: 15/11/2019 Name of the Student: Arham Tanvir

Place: Faculty of Law, Jamia Millia Islamia Student ID - 20157032

2 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

3 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

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

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

4 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

1.1. MEDICINE, ETHICS AND LAW............................................................

1.2. MEDICAL NEGLIGENCE AND CONSUMER RIGHTS:

EMERGING JUDICIAL TRENDS...........................................................

1.3. PATIENTS AS CONSUMERS AND HUMAN RIGHTS.......................

1.4. AVENUES FOR REDRESSAL OF PATIENTS COMPLAINTS..........

2. CONSUMER PROTECTION ACT AND ITS APPLICATION TO

3.1. THE BOLAM RULE.................................................................................

3.2. LIABILITY OF DOCTORS FOR MEDICAL NEGLIGENCE

3.2.1. KISHAN RAO’S CASE

3.3. MEDICAL NEGLIGENCE AND THE JUDICIARY:

THE WAY FORWARD

4.1. “FERTILITY TOURISM IN INDIA IS EXPLOITATIVE”

5.1. “ETHICAL ISSUES AS TO COMMERCIAL SURROGACY”...........

5.2. TRANSNATIONAL SURROGACY AND INTERNATIONAL

HUMAN RIGHTS LAW.............................................................................

5.3. SURROGACY AND HUMAN RIGHTS.................................................

5.3.1. REPRODUCTIVE RIGHTS.........................................................

5.4. THE RIGHT TO HEALTH – CONSTITUTIONAL PERSPECTIVE.

5.4.1. LEGAL POSITION OF RIGHT TO HEALTHCARE...............

5 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

6.1. HEALTH CARE FRAUD?........................................................................

6.2. INDIAN PENAL CODE, 1860..................................................................

6.3.1. INDIAN MEDICAL COUNCIL ACT, 1954................................

6.3.2. INDIAN MEDICAL CENTRAL COUNCIL ACT, 1970............

6.3.3. DENTIST ACT, 1948.....................................................................

6.3.4. THE DRUGS AND MAGICAL REMEDIES

(OBJECTIONAL ADVERTISEMENTS) ACT, 1954.................

6.3.5. THE DRUG AND COSMETICS ACT, 1940...............................

6.3.6. OTHER LEGISLATIONS............................................................

7. HUMAN ORGANS TRANSPLANT LAWS IN INDIA........................................

7.1. AIM OF TRANSPLANTATION OF HUMAN ORGANS

7.2. THE TRANSPLANTATION OF HUMAN ORGANS

7.4. KEY ISSUES AND ANALYSIS...............................................................

6 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

1.1. MEDICINE, ETHICS AND THE LAW

1.2. MEDICAL NEGLIGENCE AND CONSUMER RIGHTS: EMERGING

7 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

1.3. PATIENTS AS CONSUMERS AND HUMAN RIGHTS

Health is a subject closer to everybody’s heart. Medical profession contributes to the

1. The Drugs and Cosmetics Act

These codes of ethics are based on various international codes like2

1. The Nuremberg Code

8 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

1.4. AVENUES FOR REDRESSAL OF PATIENTS COMPLAINTS

2. CONSUMER PROTECTION ACT AND ITS APPLICATION TO

9 FACULTY OF LAW -JAMIA MILLIA ISLAMIA, NEW DELHI

leading to increased patient requirements for disclosure and expectations of a cafeteria

 Liability under the Consumer Protection Act

10 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