If you’re a plastic surgeon who performs gender reassignment surgery on a patient, are you at fault when the patient deems the surgery as a “failure”? Some 18 years after you last saw each other in the operating room, the jury is still out.
Or rather, the Calcutta High Court is still out.
In India, Uchchas Biswas alias Tampi, at age 19, went to Dr. Shankar Sarkar in 1990 to consult about a male-to-female reassignment procedure. In 1991, the surgery took place. Four years later, Biswas started a formal complaint.
In 1990, Uchchas Biswas alias Tampi, a resident of Naihati in North 24-Parganas, visited Dr Shankar Sarkar, wishing to undergo a sex change operation from male to female because he did not feel any attraction towards girls and found pleasure in the company of boys. Biswas was then 19 years old.
Sarkar, who lives in Jodhpur Park, advised him to consult a psychiatrist and furnish age proof. Biswas did so. He also furnished an affidavit stating that he had completed the age of 18 years and wanted to undergo a sex change operation. The surgery was conducted in 1991. Dr Sarkar advised Biswas that constant follow-up with him was needed to make the operation successful.
Four years later, however, Biswas lodged a complaint with Beniapukur police against Dr Sarkar, psychiatrist Shyamal Chakraborty and one Tanmoy Nath under Sections 120B, 326 and 420 of IPC for cheating, criminal conspiracy and negligence. He complained that the sex change operation had failed and the trio was responsible for it.
On September 9, 2009, the Sealdah judicial magistrate framed charges against Sarkar. The doctor then moved Calcutta High Court appealing that all criminal proceedings against him be quashed. Citing a Supreme Court judgment, Sarkar’s counsel, Joymalya Bagchi, argued before Justice Partha Sakha Datta that even if an operation was not successful, it did not mean that the doctor was negligent or that his treatment was incorrect. In this case, Bagchi said, the surgery was successful but the patient did not follow the required post-operation procedure as advised by the doctor.
It’s hard to take sides in a he-said-she-said scenario, but we’re sure all of our post-op trans readers can agree: Follow-up doctor visits and at-home procedures are a must in gender reassignment surgeries, and not doing either is negligence on your own part.
This case, meanwhile, is expected to be decided after the Court’s winter recess.