Mumbai Obstetrician Gynaecologist slapped Rs 10 lakh compensation for deficiency in service, unfair trade practice in IVF-surrogacy case
Mumbai: Holding an Obstetrician and Gynaecologist guilty of deficiency in service and unfair trade practice while offering IVF and surrogacy services to a patient, the State Consumer Disputes Redressal Commission (SCDRC), Maharashtra, recently directed him to pay Rs 10 lakh compensation and Rs 25,000 as legal costs.
Further, the Commission directed the doctor to hand over the Complainant's frozen semen sample, which has been in cryopreservation with him since July 2015, or transfer it to any recognised assisted reproductive technology facility nominated by the Complainant within eight weeks.
"If the Complainant neither collects the said sample nor gives such nomination within the said period, the Opposite Party shall be at liberty to dispose of the same in accordance with the law and the guidelines for the time being in force, after giving to the Complainant not less than four weeks' notice in writing," said the State Consumer Court in its order dated 19.08.2026.
Case Background:
The history of the case goes back to 2015 when the complainant, a 49-year-old man, had approached the doctor for a child through IVF-ICSI and surrogacy. The complainant allegedly paid a total of Rs 5.50 lakh in 2015-2016. Further, he was allegedly charged Rs 50,000 under a head of legal charge.
It was submitted that semen samples were taken twice, and a consent/undertaking was executed with the would-be surrogate. However, on 07.09.2015, the complainant was informed that the first IVF-ICSI cycle was not successful.
According to the Complainant, the said failure was a false and fake failure and no IVF cycle was in fact performed at all, and the same was reported only with a view to exhaust one of the two attempts covered by the charge of Rs.2,75,000/- and thereafter to charge him afresh. Since the first surrogate declined to continue, the process was allegedly delayed. The report came positive for the second surrogate. However, the pregnancy did not survive and resulted in a miscarriage. The complainant alleged that the treating doctor and his wife, a doctor, "deliberately killed the surviving viable baby either by administering abortion drugs or during the cleanup of the womb."
The complainant further claimed that the real object of the treating doctor was to obtain his semen samples and, on three occasions, his semen samples were taken, and the doctor had sold the same as donor sperm.
On the other hand, the doctor denied these allegations and argued that the success of IVF depended upon several factors such as embryo function, endometrial receptivity and others, that high fertility of the male is only one of such factors, that surrogacy is not 100% successful and that as per the Human Fertilisation and Embryology Authority of the United Kingdom the success rate is 50%. He also submitted that the second cycle of implantation was successful. However, it resulted in a miscarriage.
He vehemently denied that the foetus was killed in the womb or that he was running any money swindling clinic, and pointed out that the second attempt was performed without charging any extra amount whatsoever.
He further contended that out of the three semen samples, two were used in the two procedures with the written consent of the Complainant, and the first sample was taken by way of precaution as a backup and the said sample continues to be in cryo preservation with him without charging any amount for storage beyond the usual period of six months and can be returned to the Complainant, which fact can further be verified by the Complainant by DNA testing.
Observations by Consumer Court:
While examining the role of the doctor in this case, the State Commission noted that the doctor did not confine himself to rendering medical advice and medical treatment for a professional fee.
"He undertook to procure the egg donor, to procure and to screen the surrogate, to fix and to disburse their remuneration, to attend to the legal documentation, and to collect the entire consideration into his own hands while disbursing to the women a small fraction of what he received. In doing so, he conducted himself not as a medical professional but as a trader and an intermediary in the business of surrogacy. It is clear to us that the Opposite Party has crossed the boundary of his own calling and has gone well beyond the practice of medicine in his anxiety to extract money at every stage, even under the head of law. A doctor who steps out of the consulting room and into the market place in this manner. He must answer for his conduct in the manner in which a trader answers for his," it observed.
However, it rejected the allegations of fabrication of procedure, deliberate termination of pregnancy and sale of gametes, holding that there was no evidence to prove them.
Addressing the complainant's claim that his sperm count and quality being amongst the highest in the world, IVF could not have failed, the Commission observed, "Fertilisation, cleavage, implantation and the sustenance of a pregnancy depend upon the oocyte, upon the resulting embryo, upon the receptivity of the endometrium and upon factors which even today are imperfectly understood. The Complainant has not led the opinion of a single fertility specialist, embryologist or gynaecologist, nor has he produced any medical literature which supports the proposition that a high sperm count guarantees a live birth."
"It is for the Complainant to prove deficiency in service. And when the allegation is not of a mere mistake or error of judgment, but of a deliberate false record amounting to fraud, the standard of proof required is even higher," it further observed.
The Commission also addressed the gravest allegation made by the complainant, alleging intentional destruction of a foetus for gain, which, according to the SCDRC, if established, would not merely be a deficiency in service but an offence.
"An allegation of that nature cannot be established upon suspicion, however deeply the suspicion may be felt. It requires cogent and convincing proof...There is none," it observed, further noting that "Even if his real grievance is one of wrongful termination of pregnancy, he has admittedly never lodged a complaint with the police, nor with the Maharashtra Medical Council, nor before any other authority competent to enquire into such a charge. He has also not examined either of the surrogates, and neither of them has made any grievance at any time."
Meanwhile, the Commission held the doctor guilty, noting that he charged an exorbitant amount from the complainant on multiple counts. The court further noted that the frozen semen sample taken from the complainant as a backup in July 2015 has still been lying with the clinic for over ten years without any written intimation or instructions.
"Whatever the intention may have been, the indefinite retention of the gametes of a patient without written intimation and without instructions is a lapse in the standard of care owed in the handling of such biological material. It is also, in our considered view, the very source from which the most extravagant of the suspicions of the Complainant has sprung, and had the ordinary practice been followed that suspicion could never have taken root," noted the SCDRC.
It also observed that the patient was never furnished with the copies of surrogacy agreements, consent forms, sonography and embryology records.
Noting that a doctor never reverted as per his promise at a meeting on July 6, 2016, the Commission observed, "A patient who has lost a pregnancy and who has been told that he will hear further is entitled to hear further, if only to be told that nothing further can be offered to him. In our opinion that silence, more than anything else, converted a clinical disappointment into this protracted litigation."
The Commission also noted that the complainant was charged Rs 50,000 under a head of legal charge. According to the SCDRC, the doctor had no business to charge this.
"The very first head of the quotation, after the initial advance, is 'legal charges' of Rs.50,000/-. The Opposite Party is a doctor. He is not an advocate. He holds no licence to practise law and is not competent to render legal service to any person for a fee. We are surprised that a medical practitioner should have collected a sum of Rs.50,000/- from his own patient under the head of legal charges at all. What is worse, not a single bill, fee note, voucher or receipt of any advocate has been produced before us to show that the said amount, or any part of it, was in fact paid over to any legal practitioner," the court noted.
While deciding the compensation, the Commission observed, "The Complainant parted with Rs.5,50,000/- in the years 2015 and 2016, a sum raised by a man of modest means, and has been left for a decade with neither a child nor his money. He was charged Rs.50,000/- under a head of Legal Charge which the Opposite Party had no business whatsoever to charge, and not a rupee of it is accounted for. His frozen semen sample has been retained since July, 2015, that is, for over ten years, without written intimation and without instruction. The documents which he executed and for which he paid were never furnished to him. He was left without a word of response after 06/07/2016 and has since then pursued this litigation in person, first before the District Forum and thereafter before this Commission, for close upon ten years."
"Per contra, we have taken into account that the treatment was in fact administered, that the second cycle was performed without any further charge, and that the grave allegations of fabrication of the procedure and of killing of the foetus have failed. Balancing all these considerations, we are of the considered view that a consolidated sum of Rs.10,00,000/- would meet the ends of justice and we further direct payment of Rs.25,000/- towards the costs of this litigation," it held.
Accordingly, the Commission held the treating doctor guilty of deficiency in service within the meaning of section 2(1)(g) and of unfair trade practice within the meaning of section 2(1)(r) of the Consumer Protection Act, 1986.
The doctor was directed to pay to the Complainant a consolidated sum of Rs 10 lakh towards compensation for unfair trade practice, for the extraction of exorbitant amounts over and above medical advice and medical service, for deficiency in service and for the mental agony, hardship and financial loss suffered by the Complainant, within a period of 30 days from the date of this order. The amount shall carry interest at the rate of 12% p.a. from the date of order in case of failure in payment.
"The Opposite Party is directed to hand over to the Complainant the frozen semen sample of the Complainant lying in cryo preservation with him since July, 2015, or in the alternative to transfer the same, at the cost and risk of the Complainant, to any recognised assisted reproductive technology facility nominated by the Complainant in writing, within a period of eight weeks from the date of receipt of this order. If the Complainant neither collects the said sample nor gives such nomination within the said period, the Opposite Party shall be at liberty to dispose of the same in accordance with the law and the guidelines for the time being in force, after giving to the Complainant not less than four weeks' notice in writing," ordered the consumer court, while further directing the doctor to pay Rs 25,000 towards costs of litigation.
