Kerala High Court mandates fetus preservation in minor victims’ MTP cases, calls for legislative action [Read Order]

Kerala: The Kerala High Court has issued a significant directive requiring the mandatory preservation of the fetus in medical termination of pregnancy (MTP) cases involving minor victims, emphasizing the importance of protecting evidence in such sensitive cases.

Kerala HC’s Landmark Ruling on Foetus Preservation in MTP Cases

Justice A. Badharudeen examined crucial aspects of medical procedures and legal obligations in cases involving minor victims undergoing MTP procedures.

The court addressed a Criminal Miscellaneous Case filed by Dr. Hafeez Rahman P.A., Chairman of Sunrise Hospital, seeking to quash proceedings against him under Section 5(3) of the MTP Act and Section 201 of the IPC. The court noted, “As of now, there is no law or rule that mandates doctors to automatically preserve the fetus in such cases.”

Legal Implications of Mandatory Foetus Preservation in India

Regarding the current practice, the court observed, “The petitioner met the victim on 12.04.2021 and conducted the MTP on 13.04.2021, after reporting the crime to the police on 12.04.2021 itself. However, the police gave instructions to preserve the fetus only on 16.04.2021, by which time the fetus had already been destroyed.”

The court highlighted the legislative gap in current regulations, stating, “This aspect must be addressed by the legislature at the earliest. Accordingly, the State Legislature and the Central Legislature may consider enacting appropriate legislation or amending existing laws to incorporate such a provision.”

In its directive, the court instructed, “There shall be a direction to the Director, Health Department, State of Kerala, to communicate this order in the form of a circular to all doctors in the State, directing them to preserve the fetus of minor victims mandatorily. The fetus must not be destroyed, and in order to do so, doctors should obtain written permission from the Investigating Officer or the District Police Superintendent concerned.”

The court emphasized the need to protect evidence in cases involving minor victims, noting that these measures are essential “to protect the interests of minor victims and to prevent the accused from escaping trial due to the absence of vital evidence.”

The court also directed that copies of the order be forwarded to the Law Secretaries of the State of Kerala and the Union of India for consideration of appropriate legislative measures.

P.T. Mohankumar, George Cherian, Rajesh Cherian Karippaparambil, and Maneesha Joy appeared for the petitioner, while Public Prosecutor Jibu T.S. represented the State.

Case Title: Dr. Hafeez Rahman P.A. vs. State

[Read Order]