Medical Jurisprudence in India the Legal Framework Governing Surrogacy, Organ Transplantation, and the Standard of Care in Medical Negligence
Shashwat Prashar
6 Oct 2026 31 min read
- Decided
- 6 Oct 2026
1 From Bolam to Jacob Mathew: Civil, Criminal and Consumer Standards of Medical Negligence
The Bolam foundation
Negligence laws relating to medicine in India have been developed from the England common law system. In the case of Bolam v. Friern Hospital Management Committee, Judge McNair instructed the jury that the doctor would not be guilty of negligence if he has followed a practice which is considered good by the responsible medical practitioners who are specialists in that branch of the practice.
This standard has been recognized as the proper standard of professional negligence in India, whether one considers doctors or other professionals, much before it came to be considered in the criminal context, wherein it has been held in the case of Indian Medical Association v. V.P. Shantha that "the deficiency in the service of a medical practitioner has to be determined on the same basis as in the case of any ordinary suit for damages for negligence, namely, the ordinary standard of competence of a practitioner."
1.1 Refinement in Jacob Mathew: carving out criminal liability
The problem was that the Bolam standard, applicable in the civil law context, was blindly followed in criminal cases against doctors under Section 304-A of the Indian Penal Code, 1860 (death caused by rash or negligent act) simply because the patient was dead or the treatment was unsuccessful. In Jacob Mathew v. State of Punjab, the issue was decided by a Three Judges' Bench where it was laid down that in a criminal case, the negligence or rashness required is of a highly aggravated nature or "gross" negligence and not just the lack of reasonable care or caution that is sufficient for civil law action. It was further provided that no prosecution be initiated against the doctor and no doctor be arrested as a matter of routine till such time as a separate medical opinion (preferably that of a government doctor in the same specialization) has been sought on the Bolam test.
The basis is pragmatic as opposed to merely linguistic. Civil liability, in essence, provides recompense to the victim for injury sustained as a result of deviation, however minimal, from the reasonable standard of professional skill and care, and is proven beyond reasonable doubt. On the other hand, criminal liability treats the errant doctor as a criminal and renders him liable to punishment in the form of imprisonment. The prosecution of a criminal case based on the same standards as a civil case would have deterred the entire profession from assuming those very necessary but deliberate clinical risks in medical practice, and would have treated a mistake of professional judgment as a crime. Jacob Mathew has thus allowed Bolam to survive as the standard for civil/consumer cases, but raised the standard for Section 304-A to one of gross negligence – more akin to recklessness – before Section 304-A (which now is Section 106 of the Bharatiya Nyaya Sanhita, 2023) could come into play.
1.2 The Consumer Protection Act, 2019 standard
It was contended by Shantha, V.P. that the provision of medical services for reward (except those provided without any consideration and those provided under a contract of service) comes under the definition of “service” as provided under the Consumer Protection Act, and deficiency in such service is as good as deficiency of service in any other case and is thus cognizable in consumer forums, just like any other case. In that line, The Consumer Protection Act, 2019 takes the same approach and further adds product liability aspects (pertinent, say, to defective implants or ART/surrogacy consumables), while improving the mediation process without touching the standard of care.
1.3 Why mere negligence will not sustain a criminal prosecution
1 Liability as civil/consumer liability = negligence under the Bolam test — that is, negligence different from the ordinary negligence of the reasonably competent practitioner, proven on a balance of probabilities.
2 Liability as criminal liability under § 304-A IPC/§ 106 BNS = gross negligence/rashness of a very high degree, almost reaching recklessness, proven beyond reasonable doubt and filtered at the outset through an independent medical opinion..
3 An error in medical judgment, a failure in treatment, or an undesirable result, by itself, is not enough to establish either form of liability - this rule was stated by Kusum Sharma v. Batra Hospital in its own way of laying down propositions for courts to guide them on how not to evaluate doctors’ actions in hindsight.
In the case of Jacob Mathew, the reasoning provided for the policy by the Court was that “medicine was not an exact science and doctors were compelled to make decisions in cases where one method of treatment competed with another and such a provision which criminalized all wrong decisions amounted to ‘defensive medicine’. The civil and consumer remedies that do not brand the physician as a criminal and at the same time compensate the victim individually have not lost their efficacy and, in fact, they are the dominant form of redress, as the following cases prove.
2 The Surrogacy (Regulation) Act, 2021: Framework, Safeguards and Criticisms
2.1 Statutory scheme
The Surrogacy (Regulation) Act, 2021 came in the wake of several years of judicial and executive handwringing about the lack of regulation in the commercial surrogacy industry highlighted in Baby Manji Yamada v. Union of India and Jan Balaz v. Anand Municipality (analyzed in Q.5 and Timeline below). The Act bans commercial surrogacy and allows only altruistic surrogacy, i.e., surrogacy without any monetary compensation being offered to the surrogate mother apart from payment for her medical expenses and insurance coverage. Qualifications of an 'intending couple' in Section 4(iii)(c), among others, are a 'certificate of essentiality' (a certificate of infertility by a District Medical Board) and a 'certificate of eligibility', which can be availed of only by a legally married man and woman, both being Indian, belonging to the prescribed age range (wife 23-50 years, husband 26-55 years), without having any live child of their own (biological, adopted or surrogate), excepting children who have either a physical or mental disability or a life threatening ailment. An 'intending woman' under Section 2(1)(s) is limited to an Indian widow or divorcee between 35-45 years of age. The qualifications of a surrogate mother, on the other hand, include that she should be a close relative of the 'intending couple', be a married woman with at least one child of her own, between 25-35 years of age, and act as a surrogate only once in her lifetime.
2.2 Safeguards that have been incorporated into altruistic surrogacy are:
mandatory registration of all surrogacy clinics and ART Banks, examination and approval by the National/State Surrogacy Board and appropriate authorities at the district level, provision of insurance to the surrogate for three years, a ban on abandonment of the child even in case of any kind of disability and punishment (imprisonment up to ten years and a fine) in case of commercial surrogacy, abuse of the surrogate or trading in human embryos and gametes for surrogacy purposes.
2.3 Criticisms and judicial challenges
The Bill has faced criticism from a number of quarters. Firstly, by restricting ‘intending couple’ to only heterosexual legally married Indian man and woman and ‘intending woman’ to only widows/divorcees within a ten-year age range, the Bill, in no uncertain terms, denies access to surrogacy to any unmarried person, live-in couples, single man, and same-sex/ LGBTQ community members altogether – a stance which the government justifies as safeguarding the best interests of the child and vulnerable women, but which petitioners view as an arbitrary, patriarchal classification with no link to the purpose of eliminating exploitation..
Several writ petitions have been filed in the Supreme Court recently, questioning the validity of such exclusions under Articles 14 and 21 of the Constitution. In the main case, Arun Muthuvel v. Union of India, the Supreme Court has issued interim orders allowing the use of donor gametes (in cases where an intending party is unable to contribute his or her gamete, say due to MRKH syndrome) even in light of the March 2023 amendments which disallowed all donor gametes, since prima facie the amendments were against the very object of the Act itself.
In yet another petition, a 44-year-old single woman, who has never been married, has taken up the challenge against Section 2(1)(s) on the grounds that the criteria for eligibility for surrogacy by tying it to marital status (which allows widows or divorcees but no single women) is an invidious classification that lacks any rational nexus with the purpose of the legislation, taking a cue from the Delhi High Court's observations in the pre-conception abortion case, X v. Principal Secretary, where the court said that "the law must not dictate the beneficiaries of reproductive legislation in terms of narrow patriarchal concepts of sex." The foundational premise for all these issues stems from the reproductive-autonomy jurisprudence that has been developed under Article 21 in Devika Biswas v. Union of India, where the Supreme Court held that the right to make reproductive choices and the freedom to accept or decline reproductive procedures is part and parcel of personal liberty and dignity. Petitioners claim that the exclusions from the ambit of the Surrogacy Act of unmarried individuals and individuals belonging to the LGBTQIA+ community is unconstitutional because it deprives a particular class of people from having access to a legal form of parenthood without taking into account any individual case as to the possibility of exploitation; while the Union of India maintains that this exclusion is a well thought out legislative policy that is in conformity with the objective of making surrogacy a protected and welfare based procedure.
3 Organ Transplantation under the Transplantation of Human Organs and Tissues Act, 1994
3.1 Near relatives and other living donors
According to Section 8(5), the 1994 Transplantation of Human Organs Act (amended to be the Transplantation of Human Organs and Tissues Act in 2011) allows a live donor who is not subjected to any special consideration in such cases if he or she is considered to be a 'near relative' of the recipient. In Section 2(i) of this act, 'near relative' means 'spouse, son, daughter, father, mother, brother, sister, grandson, granddaughter, grandfather or grandmother'. If the donor is not a near relative of the recipient, then according to Section 9(3), the approval of the Authorisation Committee is required before proceeding with organ removal.
The jurisdiction of the Authorisation Committee is strictly limited to ascertaining the bona fide nature of the relationship, absence of any trade, and voluntariness of the consent (by way of interviewing the individual through a video recording). The question of the medical suitability of the transplantation procedure is left entirely to the discretion of the treating doctors. Courts have always stepped in whenever the Authorisation Committee oversteps its jurisdiction. This can be seen in B.L. Nagaraj vs. Kantha, where the High Court of Karnataka struck down the decision of the Authorisation Committee in rejecting the permission for transplantation from a non-near relative (sister-in-law of the patient), simply on the grounds that the near relatives were not considered for transplantation first.
Delays in the functioning of the Authorisation Committee have been independently addressed by the judiciary. In Amar Singh Bhatia v. Sir Ganga Ram Hospital, where a retired officer from the Indian Air Force had applied for a kidney transplant but was delayed due to the lack of a suitable near-relative donor, the Delhi High Court in 2020 directed the Committee to make the decision in two weeks. Furthermore, the Court directed the government to ensure strict compliance with the time frames under the 1994 Act and 2014 Rules in every stage of the authorization process at all hospitals.
3.2 The prohibition on commercial dealing and organ trafficking
Clause 19 of the Act of 1994 criminalizes the acceptance or offering of any payment for the provision of a human organ, while clauses 18 and 20 criminalize the removal of an organ without proper authorization and trading in human organs, respectively. The 2011 amendment has made provisions for additional penalties, including up to ten years' imprisonment and a fine for organ racketeering discovered in urban centres like Gurgaon and Bengaluru, where poor donors have been bribed and misled into posing as close relatives of rich recipients. They normally relate to documentary fraud, such as false relationship certificates, false affidavits, and Authorisation Committee approval achieved through deception, and not the medical issue involved in the transplant. They are criminal cases tried under the Act in their own right and irrespective of whether there is also a claim of negligence relating to the medical procedure.
4 Computation of Compensation: Res Ipsa Loquitur, the CPA 2019, and the Kunal Saha/AMRI Principles
4.1 Res ipsa loquitur
In cases where the nature of the injury is itself such that negligence would have been required to cause the injury and the facts themselves are solely known by the defendant, Indian courts employ the doctrine of res ipsa loquitur to create a presumption of negligence, placing the burden of proving otherwise upon the doctor/hospital. The application of this doctrine in the case of Achutrao Haribhau Khodwa v. State of Maharashtra was when a mop had been left in the patient’s abdomen during the process of sterilization conducted at the government hospital; the Supreme Court found negligence evident from this scenario and moreover held that the State was not immune from being negligent in carrying out welfare functions in the form of conducting the public hospital. In his discussion of the doctrine, Jacob Mathew has restricted its applicability to the criminal field by asserting that the failure of a surgery or treatment does not imply res ipsa loquitur that would give rise to a criminal action because the doctrine applies best to the consumer/civil law area in which the burden of proof is the civil standard.
4.2 Remedies under the Consumer Protection Act, 2019
The patient who proves "deficiency in services" ("civil negligence" in common law terms as defined by V. P. Shantha) to any District, State, or National Consumer Disputes Redressal Commission is eligible to be compensated for the harm caused and costs, and the Commission can in suitable situations further direct that the deficiency be removed, replaced or discontinued. In applying this, the forums take into account the usual common law heads of damage: pecuniary damages (costs of medical care, loss of income), and non-pecuniary damages (pain, suffering, impairment of amenities, loss of expectancy of life), and in cases of death, confer standing on dependents, and even per Spring Meadows Hospital vs. Harjol Ahluwalia, on parents suing in their personal capacity for the mental anguish of watching the negligence of care of their child.
4.3 The Kunal Saha/AMRI quantification principles
The litigation against AMRI involved two stages. The issue of liability was settled in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, where the Supreme Court, after considering the opinion of experts on the issue, found the treating physicians and AMRI Hospital liable for giving a patient suffering from Toxic Epidermal Necrolysis an overdose of the steroid Depomedrol without proper supervision, which led to the patient’s death; the case was remanded to the National Commission for calculation of compensation only. From the decision of the National Commission on the award of compensation for medical negligence, the Indian Supreme Court in Balram Prasad v. Kunal Saha (the last AMRI decision) has evolved a contemporary Indian rule for calculation of compensation for medical negligence: (i) the “multiplier method” evolved in cases of motor accidents under the provisions of the Motor Vehicles Act can, by way of analogy, be used for calculating the monetary loss of dependency in a case of medical negligence death; (ii) the compensation should take into consideration not only pecuniary but also non-pecuniary heads of damages – loss of consortium, loss of love and affection, as well as the psychological pain and cost of litigation undergone by the plaintiff during a lengthy struggle for justice; and (iii) liability of several culpable doctors and the hospital should be allocated separately in accordance with the quantum of fault of each respective defendant, rather than allocated jointly. The compensation finally awarded (with 80% being allocated to AMRI Hospital and the remaining amount to individual doctors) was more than ₹6 crore, then the largest ever amount of compensation in any Indian medical negligence case, and the decision is still considered to be a leading authority on calculation of 'just, equitable and reasonable' compensation in cases of professional negligence resulting in death. Since then, both National Commission and the High Court have been using the framework in Balram Prasad case, applying the same multiplier concept to determine the dependency loss, but modifying the multiplier and the addition for future prospects to reflect the negligence in the medical field instead of motor accident, along with allocation of liability among hospitals, doctors, and if necessary, those providing diagnostic services or assisted reproduction technology and surrogacy services.
5 Comparative Liability: Surrogacy/ART and Organ Transplantation versus Ordinary Hospital Negligence
The common type of claim for negligence in hospitals, however, relies predominantly upon the clinical standard of care, which means the Bolam test or Kusum Sharma test, that is whether a competent professional in that particular specialty would have done the same thing as the defendant did. The issue is always backward-looking – was this particular decision made by the defendant not up to the acceptable standard? Surrogacy/ART and organ-transplantation liability, by contrast, sits inside a dense regulatory overlay that ordinary hospital treatment does not carry, and courts weigh several additional factors that have no counterpart in an ordinary negligence claim:
a Regulatory certification and registration: ART clinic/ surrogacy clinic needs to register itself under the Surrogacy (Regulation) Act, 2021 and ART (Regulation) Act, 2021, while transplant hospitals need to register themselves under Sections 10 to 12 of the 1994 Act. Receiving treatment from an unregistered or unauthorized clinic is a statutory violation in its own right, irrespective of any negligence on their part, and non-registration would be considered an aggravating factor for the purposes of liability.
b Documentation of consent through the prescribed statutory route: Surrogacy involves the execution of a contract supported by certificates of essentiality/eligibility sanctioned by Appropriate Authority; an organ donation from a person who is not a near relative needs Authorisation Committee approval by means of an interview recording. The courts evaluate not only whether consent was sought in the general tort law manner (informed consent for a medical procedure under the Samira Kohli rule), but whether the consent required by the particular statute was sought in the proper manner; failure to do so may make the whole transaction invalid.
c Risk of coercion or exploitation of a structurally vulnerable party: where a surrogate mother or a non-related organ donor is considered to be at a higher risk of pressure either financial or otherwise than an average hospital patient who has come to the hospital on her own accord, the court and the Authorisation Committee search for indicators of real benevolence (pre-existing affection, lack of any payments other than medical costs and an informed, voluntary and revocable consent) in a manner not applicable in a normal surgery consent process.
d Protection of a third party with no voice in the transaction: in surrogacy, the child resulting from the arrangement is a non-party whose interest (nationality, legitimacy, right to be parented by proper parents, not abandoned irrespective of disability) is, under the statute and the courts (from Baby Manji Yamada to Jan Balaz and now pending Article 21 petitions) considered as an additional ground for safeguarding, superimposed on the general duty of care toward the surrogate/patient. The upshot is that for the field of surrogacy/ART and transplantation of organs, liability cannot simply be a Bolam inquiry; rather, on the one hand, liability in such a situation will be claimed, by way of aggregation of two kinds of liability, i.e., clinical negligence liability and statutory/regulatory non-compliance liability, and on the other hand, any non-compliance of the former would constitute liability (in both civil and serious cases, criminal liability too under the 2021 and 1994 penal provisions), even in the absence of any clinical negligence, assuming that the clinical procedure used was, in itself, perfect. Regular hospital negligence, which does not have such a statutory dimension, is governed by the single-track Bolam/Jacob Mathew/Kusum Sharma test as explained in Question 1.
Each of the following digests has been drafted based on the primary source decision with rationes decidendi and obiter dicta distinctly marked through independent analysis as per the Instructions for Submission. Citations for all decisions have been provided as footnotes on their first appearance in each digest according to Bluebook 21st ed.
Case 1: Medical Negligence: Civil & Consumer Liability
Case Name & Year | Indian Medical Association v. V.P. Shantha & Ors. (1995) |
Citation & Coram | (1995) 6 S.C.C. 651; A.I.R. 1996 S.C. 550. Bench: S.C. Agrawal, Kuldip Singh and B.L. Hansaria, JJ. |
Issue before the Court | The question here is whether and in what situation service provided by a doctor or a hospital/ nursing home comes under ‘service’ defined under Section 2(1)(o) of Consumer Protection Act, 1986 such that an action can be instituted in consumer fora. |
Brief Facts | Appeals, applications for special leave, and writ petitions emerged from a conflict of opinions among various High Courts and the National Consumer Disputes Redressal Commission as to whether doctors could be sued under the CPA, 1986. The Indian Medical Association and some doctors have argued that there exists an agreement between a doctor and patient known as a "contract of personal services" (explicitly exempted from being called "services") and, further, that the practice of medicine is a profession and not a trade or business. |
Ratio Decidendi | (i) A service performed by a doctor (or hospital/ nursing home) to a patient as a consultation, diagnosis and treatment, in consideration of which the service is performed, constitutes a ‘service’ under Section 2(1)(o) of the CPA; (ii) The nature of the relationship is that of a ‘contract for services’ and not ‘contract of personal service’ and, therefore, is not excluded; (iii) Service performed free to all the patients, or to a patient who does not pay (i.e. in a government hospital where free treatment is provided), is not covered by the Act, but the service performed free to some and paid to others is still covered in respect of paying patients as well as even free patients where cross subsidization takes place; (iv) Deficiency in such a service is to be determined on the basis of the test applicable in negligence cases – namely, the Bolam test. |
Obiter Dicta | It was noted by the Court, although not relevant to the decision, that the addition of an inexpensive and expedient method of redress for consumers to the old system of civil actions would have, in its own right, the salutary effect of deterring medical negligence, and it was observed that doctors ought to obtain professional indemnity insurance. |
Significance / Link to other cases | Pivotal to the civil or consumer stream of Indian medical negligence laws: it provides the 'service' access to the consumer courts which Spring Meadows Hospital subsequently uses for its theory of hospital vicarious liability and parent derivative claims, and sets the Bolam test which Jacob Mathew (Case 2, below) has to differentiate in the criminal context, and which Kusum Sharma subsequently systematized. |
Case 2: Medical Negligence: Criminal Liability (Section 304-A IPC / Section 106 BNS)
Case Name & Year | Jacob Mathew v. State of Punjab & Anr. (2005) |
Citation & Coram | (2005) 6 S.C.C. 1; A.I.R. 2005 S.C. 3180. Three-Judge Bench: R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ. |
Issue before the Court | What is the standard of negligence that is necessary for instituting criminal proceedings against a doctor under Section 304-A of the Indian Penal Code, 1860, and what precautions need to be taken before such proceedings can be instituted? |
Brief Facts | The accused appellant is a doctor, who has been tried for offences under Sections 304-A and 34 IPC, wherein the death of the patient was said to have occurred due to the reason that the oxygen cylinder that was connected to him was empty and there was no doctor who attended on him immediately when he fell ill. The Punjab & Haryana High Court refused to stay the proceedings. |
Ratio Decidendi | (i) Ordinary/ simple negligence which forms the basis of civil liability is insufficient as an element of criminal liability under Section 304-A IPC; it must be gross or highly culpable negligence and to that extent, it must constitute a deviation from the standard of care so much so that it constitutes "rash" or "gross negligence"; (ii) The Bolam standard test must be applied to determine whether it was negligence per se, prior to asking whether it is "gross" enough to hold the accused doctor criminally responsible; (iii) A doctor cannot be held criminally responsible for criminal rashness/ negligence merely because he failed in his treatment or because another doctor might have adopted some other form of treatment; an error of professional judgment per se is not negligence; (iv) Before prosecuting a doctor charged with criminal rashness/ negligence, the investigation officer must seek the independent medical opinion of a competent person, preferably a government doctor in the concerned specialization; and (v) A doctor must not be arrested unless there is necessity for it in connection with the investigation or there is a fear of him escaping justice. |
Obiter Dicta | The Court made lengthy remarks – unnecessary for the holding regarding Section 304-A alone – regarding the systematic hazards posed by the practice of ‘defensive medicine’ out of fear of prosecution, regarding the need for Medical Boards comprised of experts in evaluating claims of negligence (both criminal and civil) and made extensive quotations from academic writings on the moral difference between innocent mistakes and culpable negligence. |
Significance / Link to other cases | And herein lies the crux of Question 1: the splitting of the one Bolam standard that has been set out in civil or consumer matters in V.P. Shantha (Case 1), into another one of a much higher threshold applicable to criminal proceedings, which was developed further in Kusum Sharma and has in effect been incorporated in Section 106 of the Bharatiya Nyaya Sanhita, 2023. |
Case 3: Surrogacy & Organ Transplantation: Regulatory and Constitutional Challenges
Case Name & Year | Baby Manji Yamada v. Union of India & Anr. (2008) |
Citation & Coram | (2008) 13 S.C.C. 518; A.I.R. 2009 S.C. 84. Bench: Arijit Pasayat and Mukundakam Sharma, JJ. (Writ Petition (Civil) No. 369 of 2008). |
Issue before the Court | What approach should Indian laws adopt towards custody, well-being and status of a child conceived by means of commercial gestational surrogacy without any specific law governing surrogacy and where the parents who commissioned such surrogacy have split up prior to the child’s birth? |
Brief Facts | A couple from Japan named Dr. Ikufumi Yamada and Dr. Yuki Yamada got involved in a surrogacy agreement in Anand, Gujarat, through the use of their husband's sperm and a donor egg, with the surrogate being from India. However, the couple later got divorced at a time when the pregnancy had already been carried to full term. This resulted in the intending mother no longer wanting custody of the child while the intending father's visa was about to expire. |
Ratio Decidendi | In the absence of any legislation dealing with surrogacy, the Supreme Court acted on the presumption that a surrogacy agreement, even if it is a commercial surrogacy agreement, was not an illegal act per se and was concerned only with the relief that was actually sought from it. Accordingly, the Court directed the National Commission for Protection of Child Rights established by the Commissions for Protection of Child Rights Act, 2005, to look into the matter and take such measures as were necessary in the interest of the child and allowed the grandmother to seek the relief of guardianship through other legal proceedings (such as the Guardians and Wards Act, 1890). |
Obiter Dicta | The Court detailed, for the first time in a decision of the Supreme Court of India, the process of traditional and gestational surrogacy and “reproductive tourism,” noting – not as part of the narrowly-framed custody relief granted by the Court – that there was an urgent need for legislation regulating the practice of surrogacy, pointing to the (draft) ART Bill and ICMR guidelines. |
Significance / Link to other cases | It forms the direct predecessor of the regulatory gap which led to the enactment of the Surrogacy (Regulation) Act, 2021 (Question 2), and anticipates the citizenship/parentage disputes in Jan Balaz v. Anand Municipality that came one year later. The presumptive validity of surrogacy arrangements adopted by Baby Manji on account of there being no statute was rendered completely irrelevant by the clear prohibition of commercial surrogacy under the 2021 Act, while the context of an unregulated industry is what is being challenged through the present-day constitutional case law of ABC v. Union of India (Arun Muthuvel). |
CHRONOLOGICAL TABLE OF LANDMARK JUDGMENTS
Case Name & Year | Ratio Decidendi | Obiter Dicta / Observation | Significance |
|---|---|---|---|
Bolam v. Friern Hosp. Mgmt. Comm. (1957) [Eng., Q.B.] | The doctor will not be considered negligent if he has followed a practice that is acceptable as proper by a responsible body of opinion in medicine, regardless of another body of opinion having an opposing view. | According to McNair, J., a doctor is not an expert at all but only an ordinary practitioner using his ordinary skill. | It is fully adopted into Indian law and acts as the basis for all Indian medical negligence cases described hereafter. |
Indian Med. Ass'n v. V.P. Shantha (1995) | Medical treatment services performed for reward (not gratuitous and not within a contract of service), are "services" within the ambit of the Consumer Protection Act, 1986; deficiency is determined on the Bolam principle. | Treatment/service through Free OPD and charitable treatment/services under the master-servant relationship of personal service is exempt from the CPA. Government hospitals offering free services to everybody are also an exception. | The consumer forum was opened as an alternative and cost-effective civil redress option in addition to the regular tort action, which was later adopted in the Kunal Saha/AMRI case. |
Achutrao Haribhau Khodwa v. State of Maharashtra (1996) | In case where a foreign body like the mop is found to be in the body of the patient following surgery, then presumption of negligence through the application of res ipsa loquitur arises; the State is vicariously liable for the doctor’s negligence in government hospital. | The defense of sovereign immunity will not apply to medical negligence in any welfare activity, like operating a public hospital. | This is the first time in Indian jurisprudence that the doctrine of res ipsa loquitur has been applied to cases of medical negligence. |
Spring Meadows Hosp. v. Harjol Ahluwalia (1998) | The hospital would be responsible for any negligent acts committed by the hospital staff/nurses. The parents of the young child would also be 'consumers' who experienced psychological distress. | Observations concerning the composite liability of hospitals when multiple employees are involved in one chain of negligence. | Furthered V.P. Shantha's approach through the consumer forum to hold hospitals vicariously liable and claims by the patient's relatives. |
Jacob Mathew v. State of Punjab (2005) | With respect to the criminal liability under Section 304-A IPC, negligence has to be gross/very high – a negligence that simply consists of not having sufficient care and attention or skill which would constitute civil liability will not necessarily amount to criminal rashness or negligence; no doctor must be arrested without medical opinion. | Thorough study of law of negligence in England and India; suggestions for safeguarding doctors against frivolous criminal proceedings and arrests. | Threshold beyond which falls the response to Q.1 – every subsequent trial for criminal negligence of a physician in India is subjected to it, enshrined now in § 106 of the Bharatiya Nyaya Sanhita, 2023. |
Baby Manji Yamada v. Union of India (2008) | The assumption upon which the Supreme Court worked was that there was legality of the agreement of commercial surrogacy even without a law governing it, and asked the Commission for Protection of Child Rights to look into the wellbeing of the child but not into the legality of the contract itself. | General observations about the practice of 'reproductive tourism' and the immediate requirement for a surrogacy law. | The vacuum left by the case is exactly the one that the Surrogacy (Regulation) Act, 2021 came up to fill the statutory progenitor of the statute in Q.2. |
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) | In the case of negligence, the medical practitioners involved in the treatment and the hospital named AMRI were found to be at fault for causing the death of the patient Anuradha Saha due to Toxic Epidermal Necrolysis due to high steroid doses without proper monitoring. | Elaborate treatment of expert evidence and the burden of proof necessary to prove the existence of medical negligence in a complicated clinical scenario. | Liable established in the AMRI case; the quantification which came thereafter is separately stated in Balram Prasad v. Kunal Saha (2014), see below. |
Jan Balaz v. Anand Municipality (2009/2010) [Guj. H.C.] | Children born in India to foreign intending parents via a surrogate mother are not ipso facto citizens of India just because they were born in India since their intending parents are foreigners; practical solution provided by Certificates of Identity rather than passports. | Observations regarding the legislative gap concerning parenthood, citizenship, and travel documents for children of international surrogacy. | Shows the precise cross-border, single non-citizen parent situation for which the citizenship and eligibility provisions of the 2021 Act were crafted (Q.2). |
Kusum Sharma v. Batra Hospital (2010) | The principles to be applied in civil and consumer negligence actions were consolidated — negligence is measured against that of a reasonable and competent doctor; mistake in judgment alone does not constitute negligence. | Comprehensive list of ‘dos and don’ts’ for courts dealing with negligence claims, advising against hindsight bias. | Developed and systematised the Bolam/Jacob Mathew civil test into a usable checklist, which was referenced in nearly every later NCDRC/State Commission case. |
Balram Prasad v. Kunal Saha (2013/2014) | Established the method of calculation of damages in cases of death through medical negligence—by way of adaptation of the multiplier method as used in motor accident law and allocation of liability among the hospital and the doctors depending upon the extent of their negligence. | Comments on the need for harmony between compensation principles in motor accidents and those in medical negligence cases and other heads of damages like loss of society and mental anguish. | This is the highest court in charge of quantification discussed in Q.4; it marks the end of AMRI litigation which started from Malay Kumar Ganguly. |
Devika Biswas v. Union of India (2016) | Camps for sterilization carried out in the absence of proper precautions and medical protocols infringe on the reproductive rights of women, which is a violation of Article 21, and the judiciary has ordered reforms of family planning programs. | According to Article 21, the right to privacy included the right to procreation or the right to decide on matters relating to one’s body. | Provides the constitutional language – reproductive liberty within Article 21 – invoked by the petitioners in challenging the eligibility criteria of the Surrogacy Act, 2021 (see ABC v. Union of India, below). |
ABC v. Union of India (Arun Muthuvel batch) (2023-24) | Interim relief allowing donor gamete usage where the intending party (for instance, MRKH) is not able to produce the gamete by himself/herself because of medical reasons, stating that the March 2023 Rules amendment prohibiting donor gamete was prima facie against the object of the Surrogacy (Regulation) Act, 2021. | On the observation of the importance of interpreting the eligibility criteria in a purposive manner, in order to avoid negating the very essence of parenthood by means of surrogacy; the issues placed before the court for determination include age limit, “no surviving child” requirement, and unmarried men. | The important pending constitutional challenge to the 2021 Act’s exclusions (Q.2) is currently still sub judice at the Supreme Court level. |
Taken together, the chronology reveals the following doctrinal evolution: The application of the uniform Bolam standard for medical negligence cases was first adopted by Indian courts (1995-96); later, this doctrine was bifurcated into a lower standard for civil/consumer purposes and a much stricter standard for criminal purposes (2005); at the same time, Indian courts have been tackling an unregulated surrogacy industry via ad hoc custody and citizenship solutions (2008-2010), which were finally legislated in the form of the restrictive, altruistic-only Surrogacy (Regulation) Act, 2021; further developing their civil damage and calculation framework in the case of AMRI (2009-2014); elaborating on their reproductive autonomy reasoning through Article 21 (2016); and finally, in the ongoing batch of ABC v. Union of India, they are testing the very same restrictions in the very same Surrogacy Act (2021) under Articles 14 and 21 – the cutting-edge of the matter as of today.
Shashwat Prashar
More precedents
Bail as the Rule,Jail as the exception:Regular,Default and anticipatory Bail under the Bhartiya Nagrik Suraksha Sanhita,2023
The idea that bail is rule and jail is the exception was started by the supreme court for the first time in clear terms State of Rajasthan v. Balchaaand (1977) 4 SCC 308[Case1.1],and it has since become the starting point of every bail discussion.It is a rule that comes from Article 21 of the constitution.
Freedom of Religion and the Essential Religious Practices Doctrine under Articles 25 and 26 of the Constitution of India
Religious liberty in India is not framed as an unqualified institutional privilege. Articles 25 and 26 protect both individual conscience and collective religious autonomy, while making that protection subject to express constitutional limits and, in different ways, to other provisions of Part III. Article 25 speaks of "all persons"; Article 26 speaks of "every religious denomination or any section thereof".
Pre-Litigation Practice in Civil Law: Legal Notices, Rent Agreements and Non-Disclosure Agreements in India
The importance of the pre-litigation stage becomes clearer when different statutory requirements are considered. Section 80 of the Code of Civil Procedure, 1908 imposes a specific notice requirement in suits against the Government or public officers. In commercial disputes, Section 12A of the Commercial Courts Act, 2015 introduces a separate statutory pre-institution mediation requirement for suits that do not contemplate urgent interim relief.