By Aditi Srivastava.
The intersection of laws relating to medical termination of pregnancy and criminal procedure gives rise to complex and critical medico-legal issues. This blog post delves into one such issue, that is, the role of foetal tissue preservation in cases of medical termination of pregnancy involving sexual assault victims, in the Indian context. In light of the recent landmark decision of the Delhi High Court, this article further examines whether medical practitioners are duty-bound to ensure foetal tissue preservation in such cases.
Statutory Scheme: Legal Presumption in Case of Sexual Assault Victims
In India, medical termination of pregnancy is carried out in terms of the Medical Termination of Pregnancy Act of 1971 (hereinafter, “MTP Act”). The provisions of the MTP Act outline the criteria that must be satisfied for terminating a pregnancy, including circumstances in which an abortion is permissible, medical practitioners who are competent to perform the procedure, and places where the procedure may be performed.
Section 3(2) of the MTP Act stipulates that a pregnancy may be terminated as per the opinion of registered medical practitioner(s), formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. Explanation 2 to the said provision contains a legal presumption to the following effect:
“where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
Thus, the MTP Act has carved out the above legal presumption to safeguard the interests of sexual assault victims, thereby ensuring their access to safe and lawful abortions.
Preservation of foetal tissue: A doctor’s duty?
In circumstances where a sexual assault victim seeks medical termination of pregnancy, foetal tissue may serve as the most crucial and definitive form of evidence. This is especially true of cases where the sexual assault was not reported promptly, thereby circumventing the initial, time-sensitive investigation. Such investigation would include the medico-legal examination of the victim. Oftentimes, the revelation of the alleged offence occurs only when the victim seeks termination of pregnancy following the offence. Minor victims, in particular, are vulnerably placed owing to their lack of awareness, and may be hesitant to report the offence due to the fear of being ostracized by the society. Consequently, sexual assaults in such cases tend to remain undisclosed unless they lead to pregnancy.
Considering the above factors, a failure to ensure the preservation of the foetal tissue may pose a significant risk of loss of evidence. Such a lacuna may potentially result in the investigation being greatly compromised due to the negligent disposal of a conclusive piece of evidence. In the long run, it would significantly hamper the pursuit of justice for victims of sexual assault and nullify the integrity of criminal investigations.
Thus, it is imperative that medical practitioners dealing with such sensitive cases are mindful of the legal and ethical complexities surrounding the procedure. Such a medical practitioner is duty-bound to exercise utmost caution to ensure the preservation of evidence in the form of foetal tissue, to allow for necessary medical testing at a later stage of the investigation or trial, if required.
Until recently, the above rationale indirectly found recognition in a plethora of decisions by Indian courts, wherein the permission to undergo medical termination of pregnancy was granted, subject to a specific direction to the concerned medical practitioner to ensure the preservation of the foetus. However, the position of law as to foetal tissue preservation now stands settled by the Delhi High Court.
In a landmark decision involving the medical termination of pregnancy of a minor victim of sexual assault, the Delhi High Court took judicial notice of the negligence on the part of the doctor concerned resulting in loss of evidence. While noting that the foetus is one of the most crucial pieces of evidence, the Delhi High Court observed that it is the duty of the doctor concerned to perform the procedure with utmost caution to avoid any loss of evidence. Accordingly, as part of a slew of directions issued to medical practitioners, the Court directed that the doctor concerned shall ensure that the foetus is preserved and the victim is not discharged in a hurry, resulting in jeopardizing the victim’s life in danger, as also, conclusive evidence in sexual assault cases. Notably, the Court further directed that the said directive for the preservation of foetus be included as part of the existing Standard Operating Procedures to ensure compliance.
It is evident that the medico-legal landscape in India is evolving to recognize the significance of foetal tissue preservation in case of medical termination of pregnancy involving sexual assault victims. Such recognition aligns with the broader goal of ensuring the administration of justice for victims in the aftermath of sexual assault.
The preservation of foetal tissue as evidence has emerged to be pivotal in sexual assault cases. The implications of this directive for the pursuit of justice, and consequently, the victim’s well-being, is no longer res integra. Recent legal developments in India, including the landmark decision of the Delhi High Court in Nabal Thakur (supra), establish the legal obligations of medical practitioners in this context. However, for the sake of clarity and definitiveness, an imminent need is felt for such an obligation to be incorporated into the existing statutory framework. Such a step would benefit medical practitioners performing the procedure, as also, any victim undergoing the same.
 Minor R Thr Mother H v. State of NCT Of Delhi & Anr., Neutral Citation:2023/DHC/000570; X v. The State & Ors. (2013) ILR III Delhi 1813; X v. State, Neutral Citation:2019/DHC/3945; X v. Government of NCT of Delhi & Ors., W.P. (C) No.10638/2022 decided on July 19, 2022; R v. State NCT of Delhi & Ors., Neutral Citation:2023/DHC/000570.
 Nabal Thakur v. The State; Bail Application No.2128/2023 decided on August 09, 2023.
Author: Aditi Srivastava
Affiliation: Advocate, Bar Council of Delhi, India | Government Law College, University of Mumbai, India
Competing interests: None declared