Mushrooming Of Clinics Has Made Unethical Practices Rampant: NCDRC Imposes ₹1.5 Cr Fine On Hospital For Mixing Of Sperm
The NCDRC (National Consumer Disputes Redressal Commission), New Delhi has imposed a fine of Rs. 1.5 crores on a hospital for alleged mixing of sperm. It said that mushrooming of clinics has made rampant unethical practices in our country.
Presiding Member Dr. S.M. Kantikar held, “… OPs-1 to 3 the hospital and directors, also the OPs - 4 to 6 liable for the act of negligence and unfair trade practices. Thus, I fix the total lump sum liability of 1.5 Crore against the OPs. … Mushrooming of ART clinics has led to incorrect treatment to patients. ART specialist requires a correct knowledge about the physiology of ovulation as well as reproductive gynaecology. Routine gynaecologists who do not have in-depth knowledge are also opening clinics as they think there is money in it. Incorrect protocols are being used and the treatment offered may not be correct. … Moreover mushrooming of the clinics has made rampant unethical practices in our country.”
The Commission observed that infertility patients are stressed both emotionally as well as financially and the incorrect treatment increases the same. It said that the use of adjuvant therapies which still does not have evidence increases the cost to the patient.
Advocate Chaitanya appeared on behalf of the complainants while Advocates Amit Sharma, Angad Mehta, and Manisha Singh appeared on behalf of the opposite parties.
Brief Facts -
In the year 2018, the complainants i.e., the couple on the advice of a doctor approached one hospital and Endosurgery Institute for Intra-Cytoplasmic Sperm Injection (ICSI), and the doctors over there assured them about the success of ICSI. The couple got admitted and the first step of the ICSI procedure was completed and thereafter, embryo transfer was done. The pregnancy of the wife was confirmed and she gave birth to female twins.
However, when the blood group of one of the twins was revealed (AB+), it was noticed that the same was not a possible outcome as the blood group of the couple/parents was B+ and O- respectively. Upon conducting the paternity test (DNA profile), it was revealed that the husband was not the biological father of the said twins aggrieved by which the couple filed an instant consumer complaint claiming Rs. 2 crores as compensation for the alleged negligence and deficiency in service which created emotional stress, family discord, fear of genetically inherited diseases, etc.
The NCDRC in view of the facts and circumstances of the case noted, “… considering the entirety, the instant case is of Res Ipsa Loquitor. There is no need to prove the negligent act of the OPs – 1 to 6. It was not a case of an error of judgment by the treating doctors during the ART procedure, but it sounds the unfair trade practices adopted by the OPs. They were pointing fingers to each other, and everyone wants to shirk way from responsibility and liability.”
The Commission further noted that the stand taken by the opposite parties appears to be just hypothetical and that no standard procedures were followed by them. It said that the role of the Embryologist as a crucial person in the ICSI/ IVF procedure is missing in this case.
“It should be borne in mind that the infertile couple was eager and anxious to have a child of their own. The entire purpose of opting for an Artificial Reproductive Technology such as IUI, IVF, ICSI, ZIFT, GIFT etc. was to have good outcome. In the instant case due to the negligence of OPs the genetic link between the parents and their children has been severed. Its impact was on several social and ethical issues. The negligent act of OPs has caused parental confusion for the children and has left the Complainants in the society for giving explanations to the children later in life. There is great anxiety about the medical history and future genetic disorders and future lifestyle”, also said the Commission.
It further observed that the painful experience of women who have not achieved a full-term pregnancy, the burden and pain experienced by women undergoing ART treatment, and the potential risks to women’s health need to be considered.
“There is need for non-technological solutions to infertility and the regulation of medical practice. There are challenges surrounding gamete and embryo donation, the use of surrogacy and gestational carriers, the possible deleterious effects of ART, and the need for regulations and laws to govern ART reporting and social inequities. … in my view the complainants deserve adequate compensation. The blood group reports and the DNA profile clearly prove that the Complainant No.2 was not a biological father”, held the NCDRC.
The Commission also said that the family genealogy has been irreversibly changed and that the twins may carry the stigma and face difficulties in the future. It observed that the hospital and doctors have not followed the standard guidelines of ICMR and were just passing on their responsibility on one another.
“… the negligence of OP-1 to 6 has been conclusively established. The OP-1 hospital was duty bound to provide quality services, but indulged in misleading advertisement to allure the anxious infertile couples for ART and adopted unethical practices. In my view, the instant case is of deceptive and unfair trade practices adopted by the OPs who have forgotten professional ethics”, it noted.
Accordingly, the NCDRC clarified that the entire directions shall be complied with within a period of 6 weeks.
Cause Title- X & Anr. v. Bhatia Global Hospital & Endosurgery Institute & Ors.
