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Synopsis

The Orissa High Court has ordered ₹30,000 in compensation to a financially struggling couple upon the birth of their third child. The woman claimed compensation on ground of alleged medical negligence owing which she got pregnant with her third child despite having gone through sterilization procedure.

However, the court, presided over by Justice S.K. Panigrahi, despite finding no legal basis for the petitioner's claims, empathised with their economic plight and deemed it appropriate to grant compensation.

The case unfolded with the petitioner's family relying on irregular daily wages, leading to significant financial instability. Recognising their economic hardship, the government issued a Below Poverty Line card to the family. Despite their financial struggles, the petitioner had two children, who were attending school, with their educational expenses, including daily meals, covered by the Sarba Shiksha Abhiyan program.

Meanwhile, the Department of Health, State of Orissa, along with other involved parties, actively encouraged the petitioner and the general public to undergo family planning sterilization. This encouragement was part of the Green Card scheme, which incentivised families to limit their size to two children or fewer by offering various benefits, such as providing landed properties and reserving seats in higher education for those children.

Motivated by the incentives offered and mindful of their economic status and the future of their existing children, the petitioner underwent a family planning operation on November 19, 2012. The doctors assured the petitioner that the operation was successful and that there would be no chance of future conception.

However, despite assurances, the petitioner experienced symptoms of conception five months after the operation. Consulting with a doctor outside the City Hospital, Cuttack, they were advised to undergo a urine test, which eventually confirmed further conception, as indicated by the report from the pathologist of City Hospital, Cuttack.

The petitioner approached the office of U.G.P.S., Tangi-/ Opp. Party-2, seeking remedies, where negligence in the operation was acknowledged. Despite this, they were referred to a health worker named Meera Swain, who facilitated another operation and issued a certificate regarding the petitioner's operation.

Subsequently, the petitioner gave birth to a third girl child one year after undergoing family planning sterilization.

The petitioner, represented by Advocate R.K. Swain, highlighted the influence of state-promoted family planning measures, such as the Green Card scheme, on the decision to undergo sterilization. Furthermore, the financial struggles of the petitioner's family, were emphasised, compounded by irregular daily wages and their classification under the government's Poverty Line status, as a ground for award of compensation.

The plea of the petitioners faced opposition, with the learned counsel ASC Sonak Mishra, appearing for the Opposite Parties/State. Firstly, the counsel for the State pointed out the existence of the Family Planning Insurance Scheme effective from November 29, 2005, wherein reimbursement of actual expenditure incurred due to sterilization failure was fixed at Rs.20,000, including the first instance of conception post-sterilization. Additionally, the counsel highlighted revisions made to the scheme, as part of the State's program implementation plans (PIPS) from April 1, 2013, wherein the coverage amount was increased to Rs.30,000 for sterilization failures.

Furthermore, it was contended that the petitioner's grievances were based on the gender of the child, expressing that if the petitioner had been blessed with a male child, they would not have raised any complaints.

The court, after hearing both the parties, remarked “this Court is of the opinion that contention of the petitioner has no foundation in law. However, considering the poor economic status of the petitioner and the concession given by the Opp. Parties, this Court deems it apposite to grant Rs.30,000/- in favour of the petitioner as compensation.”

The court further affirmed that compensation claims in cases of failed sterilization procedures are based on the negligence of the surgeon, not the subsequent childbirth, upholding the view that “It is for the woman who has conceived the child to go or not to go for the medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for the maintenance and upbringing of such a child cannot be claimed.”

Consequently, the Court disposed of the petition, providing some relief to the struggling couple.

 

Cause Title: Moti Parva Mohanty v State of Orissa [W.P.(C) No. 14586 of 2013]