Weakening biological mother’s right to privacy may lead to a rise in the number of child abandonment cases

Publication date: 6 October 2022

A parliamentary panel has found that a rise in the number of child abandonment cases may lead to a rise in the number of illegal adoptions.

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Why was the adoption process in the news recently?

The Parliamentary Panel on the Review of Guardianship and Adoption Laws has recommended a district-level survey of orphaned and abandoned children, given the huge mismatch in the number of children available for adoption in Specialized Adoption Agencies (“SAA”) and the persons in line to become adoptive parents. Even though a large number of children are orphaned or abandoned, very few find their way in the formal adoption process.

The need of the hour, therefore, is the easing of the adoption process and the disincentivization of child abandonments. For parents who no longer wish to keep a child, a spree of social considerations may stymie their decision to surrender their child to an SAA, and abandonment may seem an easier choice. One such consideration is the anticipated future repercussions of the decision to surrender, especially in the absence of a guarantee against public dissemination of its information. A root search lies exactly at the heart of this consideration, which is an adoptee’s search for their biological parent in pursuit of obtaining knowledge of their identity, biological heritage and their sense of self.

How did a 2019 Bombay High Court judgment weaken biological parents’ privacy rights in the adoption process?

In 2019, the Bombay High Court delivered its judgement in Beena (Leena) Makhijani Muller versus Commissioner, Dept. of Women and Child Devpt & Ors., in which it issued a mandamus to an adoption agency to disclose the information of the adoptee’s biological parents to them. In issuing this decision, the court did not take into consideration Regulation 44(7) of the Adoption Regulations, 2017, which mandates the prioritization of the privacy rights of biological parents over those of the adoptee.

The furnishing of this information to the adoptee and the subsequent tracing of the biological parents is called a root search, and the psychological necessity thereof for the adoptee has been exhaustively discussed. This piece, however, concerns the judgement in Muller and its implications for the adoption process, specifically in context of the deterrence produced by the weakening of the biological parents’ privacy rights, and the causal link it may share with child abandonment.

Child abandonment has been highlighted as a serious concern in the recent report of the Parliamentary Standing Committee on guardianship and adoption laws, thereby necessitating an evaluation of the causes behind the lack of children entering the formal adoption process. The inability of children to enter the formal adoption process, I propose, may share a causal link with the weakening of the biological parents’ privacy rights that disincentivizes surrenders and increases abandonment.

In order to obtain information of the tangible implications of the weakening of the biological parents’ rights, the author consulted three Specialized Adoption Agencies (‘SAAs’) in Maharashtra: SAKAR in Aurangabad, Vatsalya Trust in Alibag, and the Pandita Ramabai Mukti Mission (‘PRRM’) in Boripardhi. Their valuable perspectives are incorporated in all three sections of this piece.

In Section I, we discuss the necessity of the present framework of the Adoption Regulations in Regulation 44, followed by a discussion of extrajudicial root searches and their implications for the adoption process in Section II. Section III argues that the weakening of the biological mother’s privacy rights produces deterrence for child surrenders, and is likely to cause a rise in child abandonment. The concluding section provides the main takeaways.

Also read: As Kerala mother gets back her child, questions over violation of adoption norms remain

What is the necessity of the present framework of the Adoption Regulations?

Presently, if one goes to an SAA with a child to surrender, one will be provided with a Deed of Surrender (provided in Schedule V of the Adoption Regulations), clause 3 of which one may choose to tick: “I do not wish my identity and address to be disclosed to my child when they return for root search”. If one has done so and one’s child returns to the SAA to look for one, the agency is mandated to write to one and check if one has changed their mind. In case one informs the SAA that no information is to be disclosed, all matters end there.

In addition to this, Regulation 44(7) is a general principle to be followed by the SAA, which accords primacy to the biological parents’ privacy rights over those of the children. Given the absence of any provisions in the Hindu Adoptions and Maintenance Act, 1956 that govern root searches, Regulation 44(7) must be deemed to operate for all adoptions, irrespective of the law under which they were undertaken.

Vatsalya Trust, in its experience, considers that unwed minor mothers constitute the greatest segment of biological parents surrendering their children. Given the extreme vulnerability of this social segment and the preceding violent circumstances that may have resulted in their pregnancy, a refusal to provide complete confidentiality may cause significant social stigma. Vatsalya’s response also hinged on a reference to the particularities of the Indian social context, which necessitates a distinct formulation of the biological parents’ (and specifically, the biological mother’s) right to keep the adoption records sealed. The cocktail of caste, village panchayats, vigilantism and honour killings constitutes this social context.

Given the immense social fall-back resulting from public dissemination of information of prior procreation, the biological mother must be assured that the act of surrendering her child to the SAA would not come back to haunt her.

In Shakti Vahini versus Union of India (2018), the Supreme Court discerned the ghastly activities of honour killings undertaken by vigilante groups in pursuit of religious and caste purity, while in Shafin Jahan versus Asokan K.M. (2018), it criticized the polluting presence of patriarchy in the Kerala High Court’s decision to disregard the female appellant’s assertion of her conscientious conversion. Marriage outside the confines of caste or religion, therefore, may subject one to social ostracization, violence or even death. Procreation is subject to a similar politicization of caste and community, and the dissemination of information concerning the bearing of children outside the marital tie is severely detrimental to the interests of the biological mother.

How do extrajudicial root searches adversely impact the biological mother’s privacy rights?

Instead of the invocation of Regulation 44 to undertake root searches, many adoptees have recently begun to undertake the exercise by themselves. They reach out to private organizations that undertake root searches via networks and individuals, tracing down the biological mother extrajudicially. The organization that petitioned the high court in Muller is the same that facilitated the adoption of Anusja Croonen, a much-celebrated case of a heart-warming interaction between a Belgian national and her Vidarbha-based biological mother.

A specific segment of the coverage of the Croonen case, however, deserves greater attention: When the extrajudicial search for the biological mother succeeded, the mother informed the organization that she wishes to meet her daughter only insofar as she is guaranteed that no one in her village or her family would obtain information thereof. While it is possible that the biological mother wished to face her child, her choice to prevent the dissemination of any information, howsoever socially-compelled, must be accorded priority.

Extrajudicial root searches operate outside the legal domain and are opposed to the rule of law. They are premised on the arrogation of the adoptee’s position as the sole stakeholder, considering the biological mother’s privacy rights to be legitimately undermined in their pursuit of psychological self-fulfilment.

The question of the biological mother’s willingness to confront her child, however, is secondary. What entitles any organization to carry out surveillance of an individual via a full-fledged search campaign, locate a person via technology and word-of-mouth, and then confront them with their traumatic past? Extrajudicial root searches operate outside the legal domain and are opposed to the rule of law. They are premised on the arrogation of the adoptee’s position as the sole stakeholder, considering the biological mother’s privacy rights to be legitimately undermined in their pursuit of psychological self-fulfilment.

A guarantee of non-dissemination of information and one’s freedom from extrajudicial surveillance, therefore, is a key component of the biological mother’s right to privacy.

How can this be linked with the rise in child abandonment?

In response to my concerns about the nexus between the weakening of the biological mother’s privacy rights and the deterrence produced towards surrendering children, PRRM said: “It is on account of being helpless to take care of the child, that [the biological parents] surrender the child for adoption. There are different reasons for parents to give up a child and at times, fear of social stigma also makes them [desire] confidentiality… Yes, they will be discouraged if their details are to be shared with the child and prospective adoptive parents.” (emphasis supplied by author)

The relationship between the number of children surrendered and the guarantee of confidentiality to biological parents is definitely an empirical one, and needs greater data to define a certain outcome. From PRRM’s experiences, however, it seems likely that biological parents may no longer engage in extensive documentation at SAAs if their privacy weren’t guaranteed, and may abandon the child instead.

It seems likely that biological parents may no longer engage in extensive documentation at SAAs if their privacy weren’t guaranteed, and may abandon the child instead.

In light of fears of child abandonment, SAKAR has responded that it guarantees confidentiality to biological parents and uphold Regulation 44(7) in practice.

Why is Regulation 44 important?

Regulation 44 has been designed not only to further the privacy interests of the biological parents, but also to serve the interests of children as a class. It ensures that parents who find themselves in circumstances of vulnerability do not resort to abandoning the child due to fear of social ostracization, instead incentivizing them to approach SAAs to secure the child’s safety and well-being.

Extrajudicial root searches and judgements like Muller, both of which disregard the status of the biological mother as a stakeholder, have significant ripple effects. Deterrence is generated for prospective child surrenders, and unless such root searches are terminated and Regulation 44 realized in letter and spirit, a rise in child abandonment may be imminently foreseeable.

(The author would like to thank SAKAR, Aurangabad, Vatsalya Trust, Alibag, and the Pandita Ramabai Mukti Mission for their invaluable assistance in writing this piece. The author would also like to thank Prof. Sarasu Thomas for her guidance in the writing of this piece.)

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Countries: India