Madras High Court Directs State To Meet Expenses Of Child Born To Woman After Failed Tubectomy

Justice B Pugalendhi observed that Family Planning was a national program implemented by the Government and that it was the duty of medical officers to implement the scheme.

Family Planning is a National Programme being implemented through various Government Hospitals and Health Centres. The implementation of the programme is directly in the hands of the Government, including the Medical Officers. The Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilization operation, sabotage the scheme of national importance.

The court added that when the medical officers were entrusted with the duty of implementing this scheme, their negligence would sabotage the same. Thus, the court found the state to be guilty for negligence which resulted in the birth of the third child.

The people of the country who co-operate by offering themselves voluntarily for sterilization reasonably expect that after undergoing the operation, they would be able to avoid further pregnancy and consequent birth of additional child. As such, the petitioner also offered herself voluntarily for sterilization operation, however, things went sideways due to improper performance of the Doctor in conducting the sterilization operation on the petitioner, by which, she gave birth to the third child.

In the present case, the petitioner woman and her husband already had two children. After her second delivery, the woman underwent Purperal Sterilization by Tubuctomy to avoid future pregnancies. However, she conceived after 8 months and gave birth to a third child. After the third delivery, she again underwent the same procedure. She gave a representation to the hospital authorities seeking compensation and later approached the court due to no response from authorities.

Additional Government Pleader T Vilavankothai, however, opposed the claim by submitting that the procedure was performed after explaining its pros and cons, success rate, other complications etc. The court was also informed that the woman had given an undertaking to the effect that she would inform the hospital authorities in case of delayed menstruation and would agree to abort the fetus. It was also submitted that the woman had undertaken not to claim compensation. Thus, it was argued that the woman was estopped from claiming compensation.

The Additional Government Pleader further submitted that even as per the Government Order issued by the Health and Family Welfare Department on May 28, 2014, the woman was entitled to Rs. 30,000 as compensation. He also pointed out that there was no tort involved that would entitle the woman to claim further compensation.

The court however noted that in another decision, the Madras High Court had discussed the issue and held that when a woman conceived even after performing the tubectomy operation, one could only assume that the reasonable care expected from the doctor was not taken and thus the doctor was liable.

In the above discussed case, the court had also held that since the child was considered an “unwanted child” by the family whose birth had taken place only due to the negligence of the authorities, the State was duty-bound to bear the expenses in bringing up the child who became the obligation of the State.

Applying the above ratio in the present case, the court was not inclined to accept the contentions of the Additional Government Pleader. The court also relied on the decision of the Apex Court in State of Haryana v Santra to fix liability on the State. The court thus directed the State to pay Rs 30000 as compensation to the woman and further to bear the expenses in bringing up the third child.

Case Title: Vasuki v The Secretary to Government and Others

Citation: 2023 LiveLaw (Mad) 132