The nature of doctor-patient communication. Is this communication privileged?

                                    Intelligent consumers should locate and use a primary physician (or medical group) who provides care that is scientific, considerate, and compassionate. They should take an active role in dealing with health professionals. They should endeavor to understand the nature of any health problem they experience and the mechanisms and potential hazards of treatment. They should not hesitate to ask questions about fees or request consultations for complicated problems.


Effective Communication

                                  When consulting a doctor, try to present a detailed and well-organized account of present symptoms and relevant past history. Before contacting the doctor, it may help to draw up a list to guide patient’s presentation. If there is more than one problem, start with the most important one. If patient’s have a particular concern, bring it up at the beginning of his/her visit. If medications are being taken, either write down their names and dosages or bring the original bottles to the appointment. Since patients typically forget much of what they are told in a doctor's office, taking notes or utilizing a tape recorder (with the doctor's permission) might be helpful.

     Physicians know much more about medicine than lay people do but are not always good communicators. They may be authoritarian or even patronizing. Patients should not accept this behavior. Consumers have the right to be partners in their care and to receive a clear explanation of the physician's findings and proposed treatment. There is no good reason why a physician cannot provide this. A friendly comment that patient’s want to be able to follow the physician's advice properly usually establishes the desired relationship.

      It is important that feelings of fear, embarrassment, or even resentment not be permitted to create a barrier between patient and physician. Put these feelings to good use by sharing them with the physician. Someone who fears an examination or is shy about body parts should say so. Discomfort during an examination is something else the physician wants to know about. If the physician makes a sound or comment that causes concern, ask what it means. Don't let fear or embarrassment stop you from mentioning a symptom or a problem. If patient’s wish to discuss something do not want to appear in his/her medical record, ask the doctor not to write it down.

        If patient’s have doubts about a diagnosis or treatment plan, voice them. If a particular treatment is objectionable, the physician may be able to suggest an acceptable alternative. If necessary, a consultation with another physician should be requested. Similarly, if the physician suggests consultative action, the patient should appreciate this concern and be receptive to the proposal.

         Some consumer advocates recommend questioning doctors closely about the need for diagnostic tests and about alternatives to whatever treatment is proposed. However, challenging everything is likely to antagonize the doctor and could result in dismissal as a patient. The best approach is to select a doctor who makes sensible and cost-effective recommendations without prodding. Questions can then be used to enhance your understanding rather than trying to outthink the doctor.

          The quality of the interaction between doctor and patient in the consultation is central to effective healthcare delivery. Studies of doctor-patient interaction have focused on examining how doctors and patients communicate in a range of clinical settings. In addition to describing the nature of and variation in the communication process, many studies have also sought to examine how this interaction influences other healthcare outcomes, such as patient satisfaction and treatment adherence.

           The development of audio and video-recording techniques has provided social and behavioral science researchers with a window into the private world of the medical consultation, allowing detailed investigations of the consultation process. From the early research it quickly became evident that there were considerable problems in the process and outcome of many consultations. Many patients reported that they had not been given sufficient information or had difficulty in understanding information which was presented in the consultation. Very often this was also found to be associated with a subsequent reluctance or inability to follow the doctor’s recommended treatment or advice. For example, in the landmark study of Korsch and Negrete (1972), which involved mothers taking their children to a paediatric outpatient clinic, about 20 percent of mothers were not informed clearly about the diagnosis and nearly 50 percent were uncertain afterwards as to the course of their child’s illness. This and other studies have also shown that patients often report feeling that they have not been sufficiently involved in the decision-making which may have occurred in the consultation (Guadagnoli and Ward 1998).

                   Many studies which have analyzed the process and outcome of the medical consultation have revealed that there is considerable variation in the pattern of doctor-patient interaction and that this is influenced by factors which the doctor and patient bring to the encounter. As a result, current theoretical frameworks for understanding doctor-patient communication tend to focus on the relations between inputs (i.e., the attitudes, beliefs, expectations, etc. which patient and doctor bring to the consultation), process (the nature of the encounter), and outcome (the short and longer term effects on the patient). An example of one such framework is provided by Frederikson (1993) and is shown in Fig. 1, which provides an indication of the range of variables which have been studied. This article will, therefore, follow this structure and focus initially on these three broad areas. One of the practical benefits of this research has been the development of interventions to improve doctor-patient communication, and this work will be summarized in the final section.

2. Input Factors in Doctor-Patient Communication

                           The main input factors in doctor-patient communication reflect variations between and within both doctors and patients. Studies have shown that patients can differ along many dimensions (e.g., age, personality, coping style, expectations, etc.) which can influence the process and outcome of a medical consultation. Similarly, there is growing evidence that, despite having had a common medical training, doctors differ in their attitudes and role perceptions in ways which can have a significant influence on what happens in the consultation. This section will, therefore, review a selection of the evidence on the nature and effects of the two input factors.

2.1 Patient Input Factors

A number of studies have shown that patients not only cope with health threats in diverse ways but also show consistent differences in how they want to be involved in the healthcare process. These studies also show that patients differ in the amount of information which they would like to receive about their health problem.

For example, Miller et al. (1987) distinguish between two broad groups of patients whom they have labeled as ‘monitors’ and ‘blunters,’ with the former being more inclined to need and seek out information about their problem and treatment whereas the latter group prefer consultations in which relatively limited information is provided.

Patients come into the healthcare setting with different levels of biomedical knowledge, based on their past experience. There is also consistent evidence that patients have differing expectations for specific consultations and, for doctors, an awareness of these can be helpful in understanding not only why they are seeking help at that time but also in being able to respond effectively to their needs. Williams et al. (1995) have shown that the most common preconsulta-tion expectation in primary care patients is for explanation and understanding of their problem, with much smaller numbers wanting tests, diagnoses, or support. These prior expectations can be important in determining outcomes since consultations in which patient expectations are met, have been shown to result in greater satisfaction and an increased willingness to follow advice or treatment.

These differences in patients’ expectations are also related to their perceptions of the role of the doctor. A number of studies have shown that patients differ in their perceptions of the role of the doctor and the extent to which it is appropriate to discuss different types of problems, particularly those of a more psychosocial type (e.g., Bower et al. 1999). However, even when patients feel that it is appropriate to discuss psychosocial problems with their doctor, this does not necessarily happen since the doctor’s own approach to the consultation may preclude this.

2.2 Differences Between Doctors

Doctors have been categorized in various ways according to their role perceptions and the extent to which they concentrate on the technical or more psychosocial aspects of patient care, as well as their beliefs about whether patients should be actively involved in the consultation and in decision-making about the management of the clinical problem (e.g., Grol et al. 1990). Inevitably these broad attitudinal differences are reflected in the way in which the consultation is conducted and in other aspects of professional behavior including decision-making, prescribing and management of clinical problems.

Although doctors undergo a common training and share a common body of knowledge and skills, wide variations in their consulting behavior have been noted. Part of this variation is a by-product of personality differences and can be seen in differences in interpersonal aspects of clinical practice but part is a reflection of differences in the approach to clinical problems. Some of these are between-individual differences whereas others reflect factors which can vary within the same individual, such as changing mood, time pressure, and various other contextual influences. In their overview of clinical decision-making, Schwartz and Griffin (1986) point out that there are often substantial disagreements between doctors when interpreting the same clinical information (e.g., x-rays). They also note that doctors may be inconsistent and disagree with their own previous judgments. During clinical decision-making, the doctor is often faced with having to process a large amount of information about the patient and the possible diagnoses and treatment options. Since there are limits in what can be attended to and how much information can be held in working memory, doctors develop heuristics, or general strategies, for processing diagnostic and treatment information and these are subject to a range of influences. Kahnemann et al. (1982) have described a number of the heuristics which are used during clinical decision-making. Similarly, the doctor’s attitudes and beliefs about the doctor’s and the patient’s role can influence the weighting given to information from patients (e.g., the relative attention given to physical and psychosocial information). In addition, the doctors’ mood can affect information-processing in a number of ways by directly influencing the speed and accuracy of clinical problem-solving (Isen et al. 1991) or possibly by constraining access to mood congruent semantic information, as has been demonstrated in more general studies of the effect of mood on cognition.

3. The Consultation Process

There are a range of methods and frameworks for analyzing and describing the process of the consultation. One of the broadest distinctions made has been between consultations which are described as patient-centered and those which are doctor-centered, reflecting the extent to which the doctor or patient determines what is discussed (Grol et al. 1990). Doctor-centered consultations are ones in which closed-questions are used more often and the direction is determined by the doctor, typically with a primary focus on medical problems. In contrast, patient-centered encounters involve more open-ended questions with greater scope for patients to raise their own concerns and agendas.

A number of specific methods have been developed for carrying out detailed analyses of the social interaction between doctor and patient based on audio or videotapes or transcripts of the consultations (see Roter and Hall 1989). Early methods classified the verbal statements of the doctor and patient into those which were task or emotion-focused and then into more specific categories (e.g., asking questions, giving interpretations, etc.). Attempts have also been made to define a number of more general ways of classifying doctor-patient interactions. For example, one can distinguish between verbal and nonverbal information and, within the verbal domain, six broad categories can be defined (information-giving; information-seeking; socialconversation; positive talk; negative talk; partnership building). From a meta-analysis of these broad categories (Roter 1989) it has been found that for the doctor, information-giving occurs most frequently (approximately 35 percent of the doctor’s communication) followed by information-seeking (approximately 22 percent), positive talk (15 percent), partnership building (10 percent), social conversation (6 percent), and negative talk (1 percent). In contrast the main type of patient communication consists of information giving (approximately 50 percent) with less than 10 percent involving information seeking.

A fairly recent and quite widely used method for analyzing the consultation process has been developed by Roter et al. (1997). This method classifies the doctor’s communication patterns into five distinct groups: (a) ‘narrowly biomedical’ characterized by closed-ended medical questions and biomedical talk; (b) ‘expanded biomedical’ similar to the narrowly biomedical but with moderate levels of psychosocial discussion; (c) ‘biopsychosocial’ reflecting a balance of psychosocial and biomedical topics; (d) ‘psychosocial’ characterized by psychosocial exchange; (e) ‘consu-merist’ characterized by patient questions and doctor information giving. They found that ‘biomedical’ approaches were used more often with more sick, older, and lower income patients by younger, male doctors.

4. Outcomes of Doctor-Patient Communication

Many studies of doctor-patient communication have attempted to evaluate the effects on a range of outcomes. Three broad groups of outcome have been studied, namely understanding and recall, satisfaction, and adherence, and each of these are now briefly discussed.

4.1 Patient Understanding and Recall

Changes in patients’ knowledge, understanding, and recall of the relevant information provided in the consultation have been assessed in a number of studies. Ley and co-workers have shown that about half the information provided in the consultation is forgotten by patients a short time afterwards but there is considerable range in what is recalled (see Ley 1997). This variation partly reflects the type of setting and sample used and partly the method which is used to test for recall. There are a number of other factors involved including the content of the information, the patients’ prior knowledge, and their level of anxiety.

Generally information which is presented early in the consultation is recalled better (the primacy effect) as are statements which are perceived as being important or relevant. Moreover, recall is better for information which has been presented in an organised way based around specific themes (e.g., the nature of the problem, the details of the treatment, etc.).

4.2 Patient Satisfaction

Patient satisfaction is concerned with how patients evaluate the quality of their healthcare experience. It is increasingly being assessed in surveys of healthcare settings, as a marker of quality of care, along with other dimensions of quality such as access, relevance to need, effectiveness, and efficiency. Current research (e.g., Fitzpatrick 1997) views patient satisfaction as a multidimensional concept since patients differ in their views about specific aspects of their healthcare, such as the doctor’s behavior towards them, the information provided, the technical skills of the doctor, and the access to and quality of the healthcare setting. Generally the most important factor is the behavior of the doctor since this can influence significantly ratings of all the other aspects of healthcare.

There are a number of difficulties in assessing patient satisfaction. Results from most satisfaction surveys reveal very skewed data, apparently indicating very high levels of satisfaction across patient samples, particularly amongst older patients. Part of this problem seems to lie in the reluctance of patients to criticise healthcare services and part of it is due to the structure of the questionnaires which have been used to assess patient satisfaction (Ware and Hays 1988). In addition, the use of more in-depth methods which require patients to describe their experiences of health from their own perspective, typically give rise to a more critical view.

A number of studies have attempted to examine the relation between indices of the consultation process and measures of patient and doctor satisfaction. For example, in a study based on their five distinct patterns of consulting style (see above), Roter et al. (1997) showed that the highest levels of doctor satisfaction were found in those using the consumerist approach and the lowest levels were found in those using the narrowly biomedical approach. In contrast, the highest levels of patient satisfaction were found with those who had seen doctors using the psychosocial communication pattern whereas the lowest satisfaction scores were recorded in those who had experienced either of the two biomedical patterns.

4.3 Adherence to Advice or Treatment

The most widely studied behavioral outcome from healthcare consultations is reflected in the extent to which the patient adheres to the advice or treatment offered by the doctor, and this topic is described in much more detail in another article (Patient Adherence to Health Care Regimens). Many consultations result in the prescription of treatment or advice by the doctor and the appropriate adoption of self-care behaviors, including use of medicines, is a key aspect to the self-management of most chronic illnesses. The incidence of reported medication nonadherence varies from 4 92 percent across studies, converging at 30-50 percent in chronic illness (Meichenbaum and Turk 1987). Even patients who have experienced major health problems, such as heart attacks, may show low levels of uptake of rehabilitation programs as well as considerable variation in the adoption of recommended lifestyle changes (Petrie et al. 1996).

In the context of doctor-patient communication, one cause of nonadherence arises from the poor cognitive outcomes outlined above, particularly poor understanding and recall of information presented in the consultation. Many patients lack basic knowledge about their medication but the relationship between this and their adherence is complex. Although some studies have demonstrated a positive association between knowledge and adherence, there are more that had failed to demonstrate a link. Moreover, interventions which enhance knowledge do not necessarily improve adherence.

The quality of communication with the doctor can also influence patients’ attitudes or beliefs about their illness or treatment which, in turn, have been shown to have significant effects on levels of adherence. Patients develop their own beliefs about the nature of their illness (Petrie and Weinman 1997) and these have been linked with a range of adherence-related behaviors other than the use of medicines. These include various self-management behaviors, such as dietary control and blood glucose testing in diabetes, attending rehabilitation, and the adoption of various lifestyle changes following myocardial infarction.

In addition to influencing patients’ perceptions of their illness, communication with the doctor can affect patients’ attitudes to their treatment. Work by Home and Weinman (1999) has shown that patients develop very specific positive and negative beliefs about their prescribed treatment, both of which can have significant effects on treatment adherence. The positive beliefs are reflected in strong beliefs about the necessity of taking their medication in order to manage the illness whereas the negative beliefs reflect patients’ concerns about treatment side-effects or long-term dependence.

5. Interventions to Improve Doctor-Patient Communication

The majority of communication training interventions have been aimed at improving the communication skills of medical students or practitioners at various stages of training but a few have been targeted at patients, to enable them to get maximum benefit from a consultation.

Communication skills training is now a core part of the curriculum for medical students. Typically, students are provided with an overview of the basic skills of ‘active’ listening, which include the importance of developing good rapport and the use of open-ended questions early in the consultation, appropriate eye-contact, and other verbal and nonverbal responses to help the patient talk, together with the ability to summarize and arrive at a shared understanding of the patient’s problem (see Kendrick 1997). There is now consistent evidence that this type of training can result in enduring improvements in basic communication skills.

In addition to acquiring basic communication skills for work with all patients, medical students need to learn how to communicate about sensitive or difficult areas of clinical practice, including dealing with distressed patients or relatives and giving ‘bad news.’ Research in this area has shown that doctors tend to give detailed information rather than find out and respond to patients’ concerns and informational needs. As Maguire (1997) notes, this avoidance of patients’ worries can have negative effects in the short and longer term. An immediate consequence is that patients may remain preoccupied with their own concerns and fail to take in information or advice. They may also selectively attend to negative phrases or messages and be unresponsive or misconstrue more positive or neutral information.

Training in this area emphasises the value of patient-centered approaches, and exploring what patients know, think, and feel. Encouragement is given to take time to provide the patient with the information which they want, letting patients proceed at their own pace, and allowing information to be assimilated. The other key skills involve developing the ability not only to recognise distress but also to allow this to be expressed (Maguire 1997).

In recent years there have been a number of interesting interventions aimed at patients. Generally these have involved interventions for patients prior to a consultation in order to increase their level of participation, particularly to ensure that their own concerns are dealt with and that information provided by the doctor is clearly understood. A successful development of this approach can be seen in the work of Greenfield et al. (1985) who used a preconsultation intervention lasting 20 minutes for hospital outpatients who were helped to identify their main questions and encouraged to ask these in the consultation. Compared with control patients, these patients participated more actively in the consultation and this was also associated with better long-term health outcomes, including lowered blood pressure in hypertensives and better glycaemic control in diabetic patients.

6. Conclusions

                          Research on the nature, determinants, and effects of doctor-patient communication has revealed its complexity and its importance in effective healthcare delivery. Audio and videotaped recordings of the consultation have allowed the researcher to examine the nature of the interaction between doctor and patient. Although the tasks of coding and analysing this interaction have proved difficult, many studies have demonstrated that the interaction process can have major effects on a wide range of outcomes. These findings have been used for designing training in communication skills, and it will be a major task for researchers to evaluate the efficacy of these on the quality of healthcare delivery in the future

"Right to Life" of an "Unborn Person"

         "Right to Life" of an "Unborn Person"

           The right of the unborn child to life must outweigh the desires of others to destroy it, whatever the basis of these desires. The liberalization of abortion laws now will ultimately lead to legalized extermination of other humans, and will be another step in the decaying moral values of our current society.


           The second a sperm and egg are united, a new life is founded. From that point on, any attempt to abort this life form is tantamount to murder. Because it equates to the taking of a human life, from both a moral and an ethical perspective abortion is wrong. Morally, abortion is wrong because it provides an individual with the right to use another individual as an instrument for their own purposes. Ethically, abortion is wrong because it inflicts pain upon another human being. No matter how early a pregnancy is terminated, it cannot be done so without inflicting such pain. Therefore, abortion is wrong from both a moral and ethical perspective. Abortion is one of the most controversial ethical issues because it concerns the taking of a human life. Generally, if we look at traditional arguments for and against abortion, we find legal and religious arguments guiding each respectively. When it comes to those who favor abortion, they point to the argument that abortion represents a woman’s “right to choose”, and, that, Roe vs. Wade, a decision sanctioned by the Supreme Court, gives them such a right. Pro-Lifers, or anti-abortionists, generally make a religious argument as the spearhead of their collective opposition to abortion. Pro-Lifers see abortion is fundamentally wrong and a sin against religion, specifically Christianity and Judaism. Since the passage of the Roe v. Wade Supreme Court decision over 30 years ago, more than 39 million abortions have been performed in the U.S. ("Standing for the Unborn" 19). Each year, clinics and hospitals are involved in performing more than one million abortions. For example, in the year 2000, 1.31 million abortions were performed, thus making it one of the "most common surgical procedures" in the country (Physicians for Reproductive Choice & Health [PRCH] and the Alan Guttmacher Institute [AGI] 6). Out of the large number of abortions, a national survey of 1,900 women indicated that only seven percent was a result of health problems or rape/incest. In other words, most of the women have simply chosen not to have their babies for a variety of other reasons (PRCH and AGI 10). In spite of its frequency, abortion remains a controversial issue that continues to trigger debate. A 1999 poll reported that 42 percent of adults consider themselves "pro-life" (St. Anthony's Messenger). This research paper argues that our society should not support abortion because it is an unnecessary evil that violates the fetus' right to life.

             Abortion i.e. Medical Termination of Pregnancy Act is itself unconstitutional because it directly collides with the other constitutional provision that is Pre – Natal Diagnostic Test. Both the acts are central acts and by one provision certain rights are conferred on a person i.e. Fetus then how that person can by some other act would be devoid of those rights.

            The first question that medical termination of pregnancy act, 1971 poses is on the grounds of constitutionality. It is well settled that when a law is challenged, the first duty of the court is to examine the purpose and the policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from an examination of it's title, preamble and provisions.

         In order to understand the basis on which the MTP Act is premised, it is necessary to identify the two main driving forces behind the Act, those being:

1) Those who were proponents of family planning and population control and saw the legalization of abortion as a potential way of lowering the birth rate.

2) Those that were concerned with abortions being conducted by non-qualified, untrained and ill-equipped medical practitioners under unhygienic conditions and therefore were concerned with the health factor.

               Hence female foeticide at that point of time was, not considered an issue at all, which justifies the fact that not a single section in the entire act deals specifically and expressly with the problem. The objective of the act, as given at the onset of the act itself, is essentially confined to dealing with the termination of certain pregnancies by registered practitioners and matters connected therewith and incidental thereto and does not extend beyond this. Section 3 of this act, which talks about when pregnancies may be terminated by registered medical practitioner, may be summed up as follows- pregnancies can be terminated by registered medical practitioners where the pregnancy is not more than twelve weeks or where the pregnancy is more than twelve weeks but less than twenty weeks, at least two medical practitioners are of the opinion formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health. Pregnancy of any woman who has not attained the age of eighteen or who is eighteen but is mentally ill , shall be carried out after obtaining the consent of her guardian in writing. However, all these clauses may be misutilized by doctors or the parent’s as it is important to note that the section mentions that the registered medical practitioner must act in good faith. In a country like India, where citizens abide or do not abide by laws as per their wishes, where authorities expected to maintain law and order may be bribed, most doctors do not realize that their patient’s well-being is their top priority and that whatever they do is to be done for the maximum benefit of his patients, often do not act in good faith.

                    Secondly it is to be kept in mind, that rape is an evil, women have suffered not only in the hands of outsiders and unknown people, but also in the hands of family members and near relatives. However very few cases dealing with the second category have been reported so far, because it tarnishes the family name. Such circumstances are usually hushed up and the girl is taken to shady hospital, using unhygienic condition to abort the foetus. Looking at the clause from another angle, a particular family may frame up such an incident in order to get a female foetus aborted . And the doctor understanding the gravity of the situation would do this work as secretively as possible in order to guard the privacy of his patient and thus the whole incident would be away from the eyes of police and law. In other case where a couple has taken certain precaution to avoid future pregnancies and already have children, but still have conceived, they are allowed to have an abortion done. However , a close study of the clause will show that where a couple already have a girl child and the woman has conceived another female foetus, they may use this clause to get foetus aborted as it is exclusively their decision whether to increase their family or not . There are about twenty thousand {20000} registered ultrasound clinics in the country and several hundred unregistered ones, especially in rural areas which can guarantee about the sex of their foetus and help them out.

             In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare , the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that ‘life’ exists in the foetus while in the womb of the mother and in this context article 21 of the constitution of India is applicable to unborn person as well. Thus it can be considered as the greatest argument for validating the MTP act as unconstitutional.

                      As life begins at or near conception and the obligation of the state to protect such life begins from the moment of conception under Article 21, the state cannot permit the deprivation or destruction of such ‘life’ without the authority of law and without following just, fair and reasonable procedure under such law. Foetus is a separate and distinct legal entity existing in the womb of the pregnant mother and its destruction without following the provisions of Article 21 under a law like MTPA, 1971 would tend to make such law unconstitutional, invalid, illegal and null and void. The medical termination of pregnancy act, 1971 provides the substantive aspect for the deprivation of ‘life’ which exists in foetus, but it fails to provide procedural aspect required under article 21 for such deprivation of life.

                      The second question that trails this argument is that whether Unborn Child is a person and that right to life is guaranteed to a Person who is not even in existence. The right to life which is the most fundamental of all is also the most difficult to define. Certainly it cannot be confined to a guarantee against the taking away of life; it must have a wider application. By the term something more is meant more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

                   In case William L. Webster et al V. reproductive health services at el[2], the supreme court upheld a Missouri statute which declared that “the life of each human being begins at conception” , and that ‘unborn children have protectable interest in life, health and well-being’.

              There should be no doubt that a foetus or a child in mother’s womb is not a natural person. But there should be equally no doubt that it is a ‘juristic’ or ‘juridical’ person. In all jurisprudential jurisdictions, a child en ventre sa mere is recognized as a legal person capable of inheriting or otherwise acquiring and holding property and also other legal rights. And there should be no doubt that only a person, whether natural or juristic, is capable of acquiring those rights.

               In America, the law of torts abounds in decision where a child has been allowed to maintain action for injury sustained before its birth at any time during the entire period of gestation and it is now firmly established that any injury caused to the foetus is to be regarded as personal injury to the child. In India under the Hindu law, a son is entitled to have reopened the partition of the ancestral property taking place while he was in the mother’s womb without keeping any share reserved for him. In the law of wills, both in India and in England, a child in the mother’s womb is considered to be in existence and section 99(1) of the Indian succession act 1925, clearly provides that “all words expressive of relationship apply to a child in the womb who is afterwards born alive”.

                 The madras high court in a decision as early as in 1886 in Queen Empress V Ademmia[3] pointed out that lexically as well as logically; an unborn child is a person having life.

                      Life before birth in a mother’s womb is a physiological phenomenon. The American Supreme Court in Jane roe v Henry wade[4], has no doubt denied a foetus to have natural personality; but the court did not, as it could not, deny the existence of life in it. Even though the court ruled that the state’s interest in the foetus becomes compelling only when it becomes viable, it was not ruled that life in a foetus begins only from the stage of its viability.

                    This question poses another question that whether unborn person has a right to life. It has been accepted that life in a foetus does not commence from the stage of viability only, but that it comes into existence even when it is in rudimentary or embryonic stage and from time to time of, or at any rate, within seven to fourteen days of fertilization. It has now been accepted by the medical and physiological scientists that the foetus starts to have spontaneous growth and development from the very beginning which are the surest and universally accepted criteria of life.

                  If the life is supposed to exist from the moment of conception, the right to birth must also commence from that stage only. Article 21 of the Indian constitution may be interpreted to mean that the word ‘person’ applies to all human beings including the unborn offspring at every state of gestation. The state cannot discriminate against persons who are fetuses by offering them less or no protection than other persons. Therefore, the state is under obligation under article 21 not only to protect the life of the unborn child from arbitrary and unjust destruction but also not to deny it equal protection under article 14 of the Indian constitution.

                  The madras high court considered some important views on the subject quoting an article ‘legal protection for the unborn child’ in the following words:

                 “The fact that the unborn child is physically dependent on its mother prior to birth need not lead to the assumption that it has no relevant separate existence nor to the assumption that it has no legal or moral significance.”

                  Amongst others, the rights of a child en ventre sa mere in the family property and inheritance are very well recognized. “A child in the womb” of the mother is for most purposes regarded in English law as being already born, but in Hindu law a child in his mother’s womb is equal in many respects to a child actually in existence.

                  Now , the question that crops up is that can Medical Termination of Pregnancy be terminated on the basis of Article 14. The Objects and Reasons of the Medical Termination of Pregnancy Act, 1997 (for short, "MTP Act") read with Section 3(2)(i) thereof permit termination of pregnancy of a woman by a registered medical practitioner if the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. Explanation II to Section 3 states that where any pregnancy occurs as a result of failure of any devise or method used by any married woman or her husband for the purpose of limiting the number of children, anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. However, under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a woman having children of the same sex is not allowed to use the prenatal diagnostic techniques to have children of the opposite sex. The legislature has not taken into consideration the fact that having a child of the same sex as that of the existing child/children also causes grave mental injury to a woman. Whereas MTP Act allows abortion in case a child is conceived on account of any failure of device used by the couple for the purpose of limiting the number of children on the ground that anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman, while enacting the said Act the legislature has not considered what anguish would be caused to a prospective mother who conceives a female child or a male child for the second or third time. The legislature has not appreciated that such anguish must also be termed as grave injury to the mental health of the prospective mother. Thus, there is discrimination between foetus (child) situated in similar position. The said Act, therefore, violates Article 14 of the Constitution of India. The MTP Act and the said Act are Central Acts. If by one statute certain rights are conferred upon a prospective person, the same cannot be denied to a prospective person by another statute originating from the same source. It should be kept in mind that the destruction of the female foetus does not uphold the equality principle enshrined in the constitution of India as held by the supreme court of India in Air India V. Nargesh mirza(1981). For this proposition, reliance is placed on the judgment of the Supreme Court in State of Tamil Nadu and Ors. V. Ananthi Ammal and Ors.It is well settled that when a law is challenged as offending against the guarantee enshrined in Article 14, the first duty of the court is to examine the purpose and the policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from an examination of it's title, preamble and provisions.

                   In Centre for Enquiry Into Health & Allied Themes (Cehat) and Ors. V. Union of India and Ors. , a grievance was made by a Non Governmental organization that the provisions of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 are not properly implemented. After considering this grievance, the Supreme Court has noted that it has already issued directions to secure compliance of the provisions of the said Act. The Supreme Court has issued further directions to the Central Government, State Government and Union Territories to ensure compliance of its earlier directions. If the said action could be done in the above – mentioned act, then why can’t it be done in MTP Act.

                    In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare, the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. Sex selection is therefore against the spirit of the Constitution. It insults and humiliates womanhood. This is perhaps the greatest argument in favour of total ban on sex selection. The court thus keeps the things in a dilemma as at one stage it is saying that there should be a total ban on sex selection whereas on the other hand it is keeping the doors open for the people through MTP Act. If things should be made right, then court has to look at the other aspect too. Court says that MTP Act can’t be challenged as, “The object of the Act being to save the life of the pregnant woman or relieve her of any injury to her physical and mental health, and no other thing, it would appear the Act is rather in consonance with Article 21 of the Constitution of India than in conflict with it. ” This act does not heed any importance to the foetus which is in the womb, saying that it can’t be said as a person. Whereas in an English case R V. Tait, the court of appeal quashed the conviction of a burglar on the ground that ‘threat to kill a foetus’ is not an offence directed against the another person. In another case R V. Sullivan, midwives who attended the delivery of a foetus that failed to survive birth were charged with the offence of criminal negligence of causing death to another person (foetus). The unborn child need not reach the stage of viability to maintain an action for recovery of damages under the law of torts . Thus the unborn child to whom live birth never comes is held to be a person who can be the subject of an action for damages for his death. The law of succession also for many purposes treated a child in the womb equal to a person in existence. The fact that the unborn child is physically dependant on its mother prior to birth need not lead to the assumption that it has no separate existence nor to the assumption that it has no moral or legal significance. Therefore, the state is under obligation under Article 21 not only to protect the life of the unborn child from arbitrary and unjust destruction but also not to deny it equal protection under article 14 of the Indian constitution.



"When I see a pregnant woman, regardless of her circumstances, the first thing I recognize is


hope, because God is at work with her. I want to help her see that. The baby is not a 'mistake,'


even if her conduct was. The Lord of Life has gained her attention and now compels her to


think of things she may have feared or ignored throughout her life-- the existence of God, the meaning of life, the nature of love, accountability before God. He is giving her anopportunity


to know Him, to love Him, and to carry out the lofty privilege of bringing a newhumanbeing into the world.""The whole idea of abortion seemed so wrong. I said to myself, 'Somebody ought to do something about this!" Then I realized that I am somebody."

Noise pollution

                           Noise causes health effects, as also socio-cultural and economic effects. Most of the time, its effects cannot be evaluated objectively. Noise is generated from a variety of sources such as industries, transport vehicles, construction activities, generator sets, fire-crackers and a variety of indoor and outdoor sources. A number of Acts and Rules have been framed in our country, for control of noise pollution.

RIGHT TO INFORMATION ACT

                        Right to Information Act  mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities,PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments.


                            An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.


Whereas the Constitution of India has established democratic Republic.And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information.And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.

RIGHT TO LIFE AND CAPITAL PUNISHMENT

Right to Life & Capital Punishment in India

                        Capital punishment, also known as Death penalty, is essentially the execution of an individual as punishment for offense by a state. The crimes which can lead to capital punishment are called capital crimes or capital offenses.

 

                           In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it is to be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India. Amongst the retentionist countries around the world, India has the lowest execution rate with just 55 people executed since independence in 1947.

 

                                    Since the condition of the ‘rarest of rare’ is not exactly defined, sometimes even less horrific murders have been awarded capital punishment owing to poor justification by lawyers. Since 1992, there are about 40 mercy petitions pending before the president.

Couples can Adopt an Abandoned Girl even if they have a Daughter

Couples can Adopt an Abandoned Girl even if they have a Daughter


                                 Hindus who always wanted to adopt a girl despite already having a daughter can now do just that.Hindu personal law prohibits same gender adoption but a landmark judgement by the Bombay High Court disregared that.


                                 Stating that courts must "harmonize personal laws with secular legislation",Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000-a secular law enabling rehabilitation of abandoned children through adoption-would prevail over the Hindu Adoption and Maintenance Act(HAMA).HAMA places restrictions on adoption.

                                 This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption-the 54-year-old Hindu Adoption Act and nine-year-old Juvenile Justice Act.

Education: A Fundamental Right

                              

                                 In a historic decision, the Union Cabinet finally cleared the long-pending Right to Education Bill, paving the ways for free and compulsory education for children. Now education would become a fundamental right and it would be legally enforceable duty of the Centre and the states to provide free and compulsory education. The Right to Education Bill is the legislation to notify the 86th Constitutional amendment, which gives every child between the age of 6 and 14 years the right to free and compulsory education. It was passed by Parliament in December 2002.

                    Education is the most potent mechanism for the advancement of human beings. It enlarges, enriches and improves the individual's image of the future. A man without education is no more than an animal. Education emancipates the human beings and leads to liberation from ignorance.

                  In accordance with the Preamble of UDHR, education should aim at promoting human rights by importing knowledge and skill among the people of the nation states.

Article 26 (1) of UDHR proclaims that: Every one has a right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."

Article 26 (2) states that Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for maintenance of peace. Further, Article 26 (3) provides that parents have a prior right to choose the kind of education that shall be given to their children."

The right to education has also been recognized by the International covenant on Economic, Social and Cultural Rights. Article 13

(1) states that,: The states parties to the present covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and sense of its dignity, and shall strengthen the respect for human right and fundamental freedoms.... Article 13

(2) further provides that the states Parties to the present covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the

progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received on completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

                        Legislation guaranteeing free and compulsory education as a fundamental right for children between the ages of 6 to 14 years has been enforced in the country under The Right of Children to Free and Compulsory Education Act 2009 (RTE). The RTE, which will require Rs 1.7 lakh crore for the next five years, is expected to benefit almost one crore children who are currently not enrolled in school.

               In developed countries, above 40 percent of those between 18-24 years move into the university system. The global average is 23 percent. However, in India that figure is just 12.4 percent. The notification of the RTE greatly increases the potential to channel students into secondary and then higher education. Along with implementing the act, the education ministry’s next focus area will have to be on re-examining secondary and higher education capacities and systems in order to handle the increased numbers of children coming out of elementary education.