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This article is written by Priyanshi Soni, from Symbiosis Law School, Noida. This article seeks to analyze the recent Kerala High Court judgment regarding the right of a single mother and the social effect of the same. 

Introduction

There are many women who become single mothers by getting pregnant via Assisted Reproductive Technologies. The rights of such mothers are widely discussed. Though they are given the status of legitimate parents, still there are some state rules which might interfere with their rights. One such case came up recently in the Kerala High Court via a petition filed therein regarding mandatory filling of the father’s name in the birth certificate of a child born through In-Vitro Fertilization

The Petition filed in the Kerala High Court

In this case, a petitioner of Kerala, who got pregnant by Assisted Reproductive Technologies (ART) (artificial insemination) which is a technique in which the sperm is accepted by a donor whose identity is kept anonymous, filed a petition in the Kerala High Court. She was in her 8th month of pregnancy and filed a petition in Kerala High Court challenging the Kerala Registration of Birth and Deaths Rules, 1970 as forms 1 to 9 of these rules mandate a father’s name to register a child’s birth. Rules require furnishing various information regarding the father of the child including name, education, occupation. The birth certificate to be issued under Rule 8 of the Rules also contains a column for mentioning the name of the father. The certificate of death in terms of Rule 8 of the rules provides for furnishing the name of the father or the husband, but it does not provide for furnishing the name of the mother. 

She said that this provision is unjust, illegal, arbitrary, and discriminatory to single mothers as well as to their children. The forms have the provision of filling only the father’s name and now since for the single mothers like the petitioner, it is impossible as she herself did not know who the donor was, so it was asserted that the provision is illegal. 

She has submitted that she was once married to someone but her former husband is not the father of this child and also the information regarding the father is anonymous as the procedure does not disclose the same. She argued that this is unconstitutional as it infringes her right to equality and privacy as well as dignity as the fact that the child was not born out of wedlock is a piece of intimate information about her and her child and leaving the father’s name column blank will infringe on her privacy. 

Moreover, she contended that since there is an exclusion of the mother’s detail column in the death and birth certificate of the child/person and so it is discriminatory towards a particular gender, thus violating Article 14 of the Indian Constitution

Another contention was that this also goes against the Registration of Births and Deaths Act (1969) which provides for the mother’s name as well. 

Advocate Aruna A appeared on the behalf of the petitioner and the petitioner also mentioned that in India, every girl above 18 has the right to get pregnant by in vitro fertilization technique and so the law should also recognize her right especially when the father cannot be disclosed. The petition requests for removal of the father’s name column from the birth certificate of a child born to a single mother. 

The petition emphasized that in cases ABC v. State (NCT of Delhi) (2015) and Mathumitha Ramesh v. Chief health Officer and Ors (2018) the rights of a single mother were recognized by Courts. 

The judgment 

The Kerala High Court held that the requirement of filling the father’s name in the birth certificate and death certificate of a child born to a single mother is absolutely against her right to dignity. The Court allowed the petition of the single mother who conceived through IVF and ruled that the respondents should immediately provide separate forms for birth and death of children born to single mothers of such sort. 

“The right of a single parent/ unwed mother to conceive by ART (Assisted Reproductive Technologies) having been recognized, prescriptions of forms requiring mentioning of the name of the father, the details of which are to be kept anonymous, is violative of their fundamental rights of privacy, liberty, and dignity,” the bench ruled.

The Court agreed that her right to privacy might be infringed and that it is her fundamental right to make her reproductive choices and keep them private. 

The Court very rightly ruled that as long as single mothers have the right to conceive through ART, there should be a provision of separate forms for registration of birth and death of the children born to such mothers.  

Because the petitioner was in her eighth month of pregnancy, the court ordered the State to “immediately” take the necessary steps to have separate forms prescribed for registration of births and deaths, as well as for the issuance of certificates in cases involving conception through ART of a single parent/unwed mother.

Key points observed in the judgment 

  • The Court asserted that Article 21 of the Constitution includes reproductive choices of women and this is a part of the personal liberty of a person. The right to procreate as well as to abstain from procreation has been recognized as a colour of the right of personal liberty. Justice K.S.Puttaswamy (Retd) vs Union Of India (2018) case was highlighted in the judgment. This case dealt with the right to privacy as a part of the right to life as given under Article 21. It was unanimously held that the right to privacy is a fundamental right under Article 21. It upheld that the Aadhar Card is constitutionally valid but certain provisions of it were struck down as being violative of the right to privacy. Now, the Court in the present case said it is a personal choice and a matter of privacy regarding the reproductive choices of a person. Also, the Assisted Reproductive Technology (Regulation) Bill, 2020’s guidelines mention maintaining the confidentiality of the donor name, etc. Not relieving the donor’s name except as when asked by law is a matter of “right to privacy”. The said right has also been recognized in the guidelines for ART clinics, with very few exceptions. 
  • Regarding the question of dignity, the right to life also includes the right to live with dignity and respect. One should be free to make his/her decisions and should get human respect in the community and access to necessities. Dignity is the core that unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. In the Puttaswamy judgment, it was also observed, “Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)”. In Navtej Singh Johar v. Union of India (2018, a case on homosexuality, it was held that the right to live with dignity includes all those rights which enable a person to lead a respectful life in society without any disturbance to his personal safety, privacy, and respect. In the present case, leaving the column asking the father’s details blank affects the dignity of both the woman and the child. 
  • The right of a woman to reproductive decisions and personal choices has been recognized as a constitutional right. 

The social impact of the judgment

In today’s times, society is changing at a greater pace. The traditional/predefined roles are being challenged and changed. During the old days, no one would have ever thought of a girl being a mother without any requirement of a father to exist. But technology and the changing needs of the society with a modern mindset have made even this possible. Many women who are single, either because they are divorced or do not want to get married or due to several other reasons, but they want to have a child, can go for In-Vitro Fertilization where a donor donates the sperm and his identity is not to be revealed. The sperm and the egg combine outside the body in a laboratory. 

Today, these technologies are highly in demand and are of great help for treating infertility. But, with these technologies becoming legal, questions are raised regarding the rights of such single mothers. 

In a landmark case Shalu Nigam & Anr vs The Regional Passport Officer & others (2016), it was held that the mother’s name alone is sufficient in the passport as a single mother is a natural guardian of the child and father’s name is not compulsory. 

Similarly, the present case of the Kerala High Court that we discussed in the article was a mindful and innovative step towards upholding the rights of a single mother. A separate form was asked to be created for registration for children born to single mothers. The judgment upheld the right to equality, dignity, privacy, and liberty of single mothers. It set a precedent for future judgments as well as paved a way for a better societal position of single mothers, who must be treated with equality, and their privacy and personal choice must be respected by all too. It is very important to understand that even if a single mother is considered a guardian of a child, there need not be a compulsion of putting names of biological fathers too in such birth and death certificates. Even if the column demands this, it must be made completely optional. In the present case, the provision of not even including the mother’s name column in the form was highly discriminatory as was recognized by the Court. 

Conclusion

To conclude, the judgment came as a fresh ray of hope for numerous single mothers residing in Kerala and helped in amending the loophole given in the Kerala Registration of Birth and Deaths Rules. Such cases provide better entitlements for women following liberal interpretation, and amendments accommodating modern trends of family formation. 

References


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