The Kerala High Court has suggested that the State government and the Centre consider enacting legislation or amending existing laws to mandate the preservation of the foetus in Medical Termination of Pregnancy (MTP) cases involving minor victims, where offences under the Protection of Children from Sexual Offences (POCSO) Act are established.
“A directive must be issued to the Director of the State Health department to communicate this order through a circular to all doctors in the State until such legislation is in place to protect the interests of minor victims and to prevent the accused from evading trial due to the absence of crucial evidence. The circular must mandate the preservation of the foetus of minor victims and prohibit its destruction. If a hospital intends to dispose of the foetus, the doctors must obtain written permission from the investigating officer or the District Superintendent of Police concerned,” the court said.
The court issued the order while quashing a case against Dr. Hafeez Rahman P.A., chairman and medical director of Sunrise Hospital, Kakkanad, for allegedly aborting the pregnancy of a victim illegally and destroying the foetus without preserving it for investigation.
Dr. Rahman said he reported the matter to the police on April 13, 2021. The MTP was done on the next day. However, the police sent a letter to the hospital only on April 16, 2021, informing that if the MTP of the victim was carried out, the foetus was to be preserved for DNA examination.
To a query regarding guidelines in this regard, the prosecutor informed the court that there were no standing rules or laws or guidelines, which would prescribe automatic preservation of foetuses in cases of MTP involving minor victims. The court said that when there was no mandate in the form of law or rule, the doctor who did the MTP and destroyed the foetus could not be held liable as a person who caused the disappearance of evidence of the offence. Hence, the prosecution against the doctor was unwarranted, it said.
The court also directed the Registry to forward a copy of the order to the law secretaries of the State and Central governments for taking further steps.
Published – February 21, 2025 01:05 am IST
