Emerging legal issues in medicine and health-care
Correspondence Address: Source of Support: None, Conflict of Interest: None DOI: 10.4103/0028-3886.257997
Source of Support: None, Conflict of Interest: None
Authors : Sandeepa Bhat B, Monalisa Saha, Sandeep Chatterjee
Edition : 1st Edition
Publisher : Bloomsbury Publishing India Pvt. Limited
Pages : 234
“You must not lose faith in humanity. Humanity is an ocean; if a few drops of ocean are dirty, the ocean does not become dirty.”
– Mahatma Gandhi
India recently celebrated its 70th Republic Day and, while we have grown leaps and bounds in terms of where we were 70 years ago, we need to examine where we stand when compared to developed nations in terms of our outlook on sensitive issues like abortion, euthanasia, surrogacy, or organ transplantation. A step in this direction is this wonderful book by Dr. Sandeep Chaterjee, where he along with two Professors of Law- Sandeepa Bhat B and Monalisa Saha, critically review these topics and their relevance in the current Indian atmosphere.
The first four chapters deal with abortion and the wildly popular field of assisted reproduction. As medical research has developed, the safety of abortion procedures has also improved, but the question of morality has not changed. As the authors succinctly state, “The debate is premised on the beginning of life- Can life be said to have begun from the moment the egg is fertilized and the woman is said to have conceived? Or can life be said to have only begun when the fetus is capable of living on its own after being removed from the mother's womb?” This is where a gray zone exists. India too, like many other countries, has a relatively liberal abortion policy with a wide permissible range of 12–20 weeks of pregnancy in place…thus, a cafeteria approach, if you will permit the usage of this terminology, exists. Beyond this duration, it is necessary to seek legal permission. The courts deem the practice appropriate if the abortion is being carried out for a genuine reason, such as in those subjects where the conception is a result of rape or sexual assault, or if the mother is incapable of caring for the child such as in cases of mental illness or teenage pregnancy, or if the child is at risk of having potentially life threatening deformities. Above all, the court seeks to know whether or not the abortion procedure shall be safe for the mother. The book states that, “Beyond 20 weeks, one can only seek to terminate pregnancy on the basis of mother's health and nothing else.”
Following this, the book steers towards assisted reproductive techniques (ART) and dives into one of the most controversial topics—surrogacy. Thanks to ART and surrogacy, we can have three different kinds of parents now: genetic, gestational, and nurturing. This creates a lot of room for legal and humanitarian issues, especially if you throw into the mix the possibility of non-Indian citizens seeking surrogacy. A law banning this practice has recently been enforced. There is also the possibility of homosexual couples renting a surrogate mother, and later on, after undergoing a divorce, facing the dilemma of who will keep the child's custody. However, after the passage of the ART bill of 2014, only four categories of persons, namely, persons of Indian origin, overseas citizens of India, non-resident Indians, and foreign citizens married to an Indian person can avail the ART facility in India after signing up a notarized agreement with the Indian surrogate. While dealing with all these topics, the book describes each relevant bill over the years and attempts to explain each bill with a case study. The reason why the court made a particular decision has also been explained.
The next section deals with organ transplantation, a topic with multitudinous ethical and moral dimensions attached to it. As the book explores this topic, it comes to a very relevant question. How do we decide whether the vegetative person wishes to give his organs away? For that matter, it says that even if a deceased person did not have a donor card on him/her or did not clearly express his/her desire to donate prior to his/her demise, how can consent of the relatives be taken as consent of the individual? It also gives examples of cases where the hospital has refused to perform organ transplantation, and only after the intervention of the court, have been forced to do so, after ascertaining the legality of the same. This is discussed under the light of medical tourism and the fact that many places in India have become “Organ Bazaars”—to name a few such pockets, Pandoli, a place 80 km from Ahmedabad, “Kidneyvalkam” a small village near Chennai, and various places near Gurgaon, Bihar, and West Bengal. It highlights the fact that the racket is sometimes so organized that doctors are also not even aware that they are a part of the illegal sale and purchase of organs.
The next three chapters deal with clinical trials and their ethical and legal aspects. While the book recognizes the fact that the medical community needs to develop better diagnostic and therapeutic methods, it states that there are many legal issues while conducting a clinical trial. Even in cases of animal testing, ethical aspects are important. The authors state, “How ethical is it to place a higher value on the life of a human than on an animal?” The Indian Council of Medical research (ICMR) has kept pace and brought out the “Ethical Guidelines for Biomedical Research on Human Participants” in 2006 with the objective of protecting participants against avoidable risks, to guide researchers to frame better proposals, and to assist the ethical committee of institutions in reviewing the proposals of the researchers. Looking at it legally, the Drugs and Cosmetics Act of 1940, which has been modified multiple times with numerous bills seeking to plug any loopholes, lays out the essential pre-requisites to perform clinical trials in India. The Indian Penal Code (IPC) sections 304A, 338, 337, 336, and the tort law define the remedial actions available to any victims of these clinical trials. The book also discusses the international laws like the Nuremberg Code and the Declaration of Helsinki in much detail and how these laws have influenced the Indian Law.
The next section deals with autopsy, its procedural aspects, and the judicial approach towards it. Autopsy is a necessary part of many judicial and criminal proceedings and the Code of Criminal Procedure has defined the rules for carrying out one. The relevance of careful writing of the autopsy report and how an autopsy finding can change the judgment of a case has been well-illustrated with many examples. Autopsy reports include both internal and external examination findings, and all the relevant sections and headings under which a report needs to be written. These sections have been described along with the relevance of each finding and how it can be used to establish the time of death, cause of death, and the identity of the deceased. Exhumation of a cadaver and the value of a second-look autopsy are discussed with relevant examples.
The last part of the book deals with one of the most debated areas in medical science—euthanasia. What is more important, living or quality of life? Article 21 of the Indian constitution limits personal liberty and is inexplicably linked to euthanasia. Also, the role of a doctor in this “assisted suicide” and its ethical dilemma is discussed. No discussion on euthanasia can be complete without the Aruna Shanbaug case, which changed the landscape of euthanasia in India. After this case, passive euthanasia has become legal in India but only after permission of the High Court has been obtained. A “Medical Treatment of Terminally Ill-Patients Bill” was drafted in 2016 after this case and all the developments thereafter have been covered and discussed extensively. There have also been cases where euthanasia has been falsely applied for, to secure pension for the family and thus brings to light an important fact—every case needs to be dealt with separately and on its individual merits.
The book is a valuable addition in the reading library of many medical practitioners and is an important contribution to medical literature. The fact that it is co-authored by a neurosurgeon is just the cherry on the cake. Lectures and educative seminars on this very topic are the need of the day, and along with our educational programs, must be a part of the curriculum of all budding doctors, academics, hospital administrators, and nursing personnel. This is especially important in a multi-religious country like ours where there is a deadlock on enacting several laws on these controversial topics. Each bill and law has been explained thoroughly, with all its aspects and multiple explanatory examples. Various loopholes have been identified and suggestions given.
The only “dark spot” on this moon is the omission of the topic of violence against medical personnel. It is one of the most burning and serious topics of discussion among doctors and is responsible for the mass exodus of doctors from this nation. It is the reason why many of us have started practicing “defensive medicine”. A look into the various legal angles and how a practitioner could potentially tackle this problem along with a detailed look into “consent taking” could have really upped the importance of this wonderful book. I am sure that in subsequent editions, this topic would be added and this addition will make this book an indispensable masterpiece.
A diamond with a flaw is, however, worth more than a pebble without imperfections. The book achieves what it was aimed for—to act as a reference book on the most emerging legal issues in healthcare. Moreover, to be co-authored by two lawyers and a neurosurgeon speaks volumes of the need for such collaborations and the value of many more such associations. It is time we woke up and addressed these legal issues that are all pervading and yet ignored due to personal ignorance regarding them.