Why has the Calcutta HC ruled in favour of privacy of unwed mother over adoptee child’s right to know his roots?

In a significant ruling, the Calcutta High Court has held that the right to privacy and confidentiality of an unwed biological mother who surrendered her child has to be given primacy over the right of the adoptee. Why?

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IN a significant ruling, the Calcutta High Court on Friday held that the right to privacy and confidentiality of an unwed biological mother who surrendered her child has to be given primacy over the right of the adoptee.

Justice Sabyasachi Bhattacharyya held that although the adoptee child has a legal and constitutional right to search out the particulars of his biological parents, the right of privacy of his mother prevails over the adoptee's said right.

Justice Bhattacharyya was ruling on a petition filed by a Swiss citizen. He was adopted from India by his Swiss parents in the year 1988. The petitioner alleged that after coming of age, he commenced a search for his roots.

He alleged that his attempts to find out his biological parents and their whereabouts were met with resistance by the specialised adoption agency through which the petitioner was given in adoption.

The petitioner contended that it was the duty of the specialised adoption agency to preserve the records of the adoption, in particular the relinquishment deed executed by the biological mother of the petitioner.

He relied upon a decision in Lakshmi Kant Pandey versus Union of India, in which the Supreme Court had directed recognised adoption agencies to maintain adoption records.

The adoption agency contended that they did not have the deed of relinquishment or even the admission register or child study report which were essential documents for giving the petitioner in adoption.

Justice Bhattacharyya framed the four questions for determination:

i) Whether the petitioner has a right— legal or constitutional— to search out the particulars of his biological parents (mother).

ii) If so, whether the said right prevails over the right to privacy of the petitioner's biological mother.

iii) Whether the respondents or any of them had any legal obligation to preserve the records relating to the relinquishment of the petitioner, in particular, the relinquishment deed (deed of surrender) executed by his biological mother.

iv) If so, what remedy is available to the petitioner to enforce the same?

On the first question, Justice Bhattacharyya agreed with the petitioner that the right to search for one's roots, integral to knowing one's identity, is implicit in the right of the petitioner to know himself and to live a life of dignity.

Hence, the right to know the identity of one's biological parents is a part of the right to life as enshrined in Article 21 of the Constitution of India.

"Although the petitioner is a Swiss national, Article 21 applies to foreign nationals as well. Despite the petitioner not residing on Indian soil, his roots lie in India and as such, broadly speaking, the right to life guaranteed by the Constitution of India is applicable to him insofar as the broad base of his search for his biological parents lies in India," Justice Bhattacharyya held.

On the second question, Justice Bhattacharyya referred to the Adoption Regulations, 2022 framed under the Juvenile Justice (Care and Protection of Children) Act, 2015. As per sub-clause 6 of Regulation 47, there is a clear mandate that the right of an adopted child shall not infringe on the right to privacy of the biological parents.

He also referred to Regulation 48 which provides that all agencies and authorities involved in the adoption process shall ensure that confidentiality of adoption records is maintained, except as permitted under any law and the adoption Order may not be displayed on any public portal.

Such confidentiality is required for the protection of all, for the adoptee as well as the surrendering biological parents and the adoptive parents.

Justice Bhattacharyya observed that Regulation 47 is to be read in conjunction with the procedure relating to surrendered children as provided in Regulation 7 of the 2022 Regulations.

Sub-clause (7) thereof provides that in case of a child born out of wedlock, only the mother can surrender the child. Subclause (4) says that if a female biological parent, including an unwed mother, is willing to surrender the child through the procedure laid down under Section 35 of the 2015 Act, the deed of surrender (sometimes called 'the deed of relinquishment') may be executed in the presence of any female member of the child welfare committee (CWC).

Justice Bhattacharyya thus pointed out that for surrender and its modalities, a distinction has been drawn between a female biological parent who is a single mother or unwed mother or when a child is born out of wedlock on the one hand and biological parents in general on the other, which lends primacy to the will of the biological mother to surrender.

Justice Bhattacharyya also underscored sub-clause(13) of Regulation 7 of 2022 Regulations which provides that due regard be given to the privacy of the surrendering parents (which includes a single biological mother as well) and the surrendered child by the authorities and agencies involved in the process.

Justice Bhattacharyya thus held that the modalities envisaged in the 2022 Regulations, which were partially part of the 2017 Regulations as well, suggest that the confidentially willed by the biological parents (more so for a single unwed mother, which is rather obvious) prevail over the right of the child to have access to the surrender deed or a root search.

Hence, the petitioner has a legal as well as constitutional right to search out the particulars of his biological parents or mother. However, such right is subject and subservient to the right of privacy of the adoptee's biological mother or parents.

On the issue of whether the respondents or any of them had any legal obligation to preserve the records relating to the relinquishment of the petitioner, executed by his biological mother, Justice Bhattacharyya observed that when the petitioner was given in adoption, neither the 2015 Act nor the Adoption Regulations were in force.

Thus, the first judgment of the Supreme Court in Lakshmi Kant Pandey is a landmark decision in all senses. But, Justice Bhattacharyya said, it could not overlooked that in 1988, when the petitioner was given in adoption, Lakshmi Kant Pandey had only been operative in the field for a few years and might not have percolated properly in every detail to the bottom rungs of the hierarchy of the adoptive authorities.

"Thus, although the law laid down by the Supreme Court in the said judgment was undoubtedly binding on all, the rigours of the same were still at an inchoate stage. The obligations of the respondents have to be considered from such perspective and with a pragmatic approach," Justice Bhattacharyya held.

He observed that the requirement for the agency was to maintain a register containing the names and particulars of the children and not the names and particulars of their biological parents.

"In the present case, the petitioner was surrendered directly to the respondent no. 5, which was itself a specialised agency, recognised within the contemplation of Lakshmi Kant Pandey. Hence, it was not a case where a different agency was routing the inter-country adoption through respondent no. 5 or placing the petitioner to respondent no. 5 specifically for the purpose of inter-country adoption," Justice Bhattacharyya held.

"Insofar as the maintenance of register is concerned, the same cannot, thus, be said to be an edict set in stone mandating the agencies to preserve the relevant register for all time to come.

"Since the root search has been recognised in the 2022 Adoption Regulations and even worldwide to be available to an adoptee after attaining majority, the petitioner was well within his rights to seek a root search when he attained the age of majority. However, the petitioner chose to remain silent on such score and only initiated the proceedings when he was about 35 years old," Justice Bhattacharyya held.

Justice Bhattacharyya also highlighted that the Supreme Court, in Lakshmi Kant Pandey, observed that the foreign parents who had taken a child in adoption would normally have the child study report with them before they select the child for adoption and in case they did not have the report, the same should be supplied to them by the recognised social or child welfare agency processing the application for guardianship and from the child study report, they would be able to gather information as to who are the biological parents of the child, if the biological parents are known.

"Under normal circumstances, the child study report was to be handed over to the adoptive parents and not retained by the recognised agency at all. In the present case, the petitioner has failed to establish any reason to deviate from such normal circumstances, nor have the adoptive parents of the petitioner ever raised any grievances all through as to such document not being made available to them," Justice Bhattacharyya held.

Justice Bhattacharyya observed that the concerned district judge as well as all the involved agencies including the scrutinising agency and the recognised specialised adoption agency had disclosed whatever documents were available with them, which did not contain any relinquishment deed or deed of surrender.

"In the absence of any strict legal obligation on the adoption agency to retain such surrender deed, particularly for so long, no penal action or direction can be passed against the respondent no. 5 with regard to the admitted absence of the document with it," Justice Bhattacharyya held.

He eventually held that the petitioner did not have a remedy either in damages or in penal action against the specialised adoption agency insofar as the non-preservation of the surrender deed was concerned.

"The remedy sought in the present writ petition cannot be granted, particularly in view of the delay of almost two decades by the petitioner to come up with the present search after attaining majority. Hence, the writ petition fails," Justice Bhattacharyya said while closing the case.

Click here to read the order.