A Parent’s Right to Privacy under Adoption

The Calcutta High Court recently said that a biological parent’s privacy rights are more important than a child’s right to find out about their roots. This is particularly true when an unmarried mother gives up her child for adoption and can’t be found later.

In this Weekly, let us look at what the Adoption Regulations, 2022 say in such cases and what happened in this case. 

Regulation 47 of the Adoption Regulations deals with ‘root search’. Root search is the process in which an adopted child can find out about their adoption process, the source and circumstances in which they were admitted into the Specialised Adoption Agency. It states that:

1. When giving up a child, if the biological parents ask for anonymity, the Specialised Adoption Agency or the District Child Protection Unit must get their consent in writing before giving any information. 
2. If older adoptees contact the agencies or authorities like Authorised Foreign Adoption Agency, Central Authority, Indian diplomatic mission, Authority, State Adoption Resource Agency or District Child Protection Unit or Specialised Adoption Agency for a root search, the agencies should help them. 
3. Persons above eighteen years can apply independently online while children have to apply jointly with their adoptive parents to the Authority for help with root search.
4.  In case the biological parents deny the root search or cannot be found in surrendered cases, the agency or authority should tell the adoptee the  reasons and circumstances for the information not being made available.
5.  Agencies or authorities cannot allow a root search by a third party and they should not make any information relating to biological parents, adoptive parents or adopted child public.
6. The right of an adopted child should not infringe the right to privacy of the biological parents.

What happened in this case?

In this case, a Swiss citizen reached out to the Calcutta High Court to trace his biological origins. He asked for the relinquishment deed from the adoption agency that arranged his adoption. He wanted to take action against the agency, if it had not preserved the deed. The court was informed that the unwed mother gave the child up for adoption in 1988 and he was adopted by Swiss parents soon after. Justice Sabyasachi Bhattacharya declined this plea stating that there is no reason to assume that a biological mother who gave up her child for adoption and went untraceable would want to be exposed to the scrutiny of society or even her own child after all these years. The Court held that the right to privacy and confidentiality of the mother has primacy. It also held that the adoption agency was also not obliged to keep the relinquishment deed, when the mother wanted no contact with the child. “The rights of privacy and protection of identity of the biological parents of an adoptee are more fundamental and basic insofar as the said right protects the very survival of the biological parents, as against the right to know one’s roots”, it added.

How can you give up a child for adoption?

Under the non-religious adoption law, you cannot simply give up your child for adoption, but as a parent or a guardian you have the option to surrender your child. Surrendering means you give up your child for physical, emotional or social factors beyond your control. Once the Child Welfare Committee (CWC) acknowledges the surrender, your legal relationship with the child ends, relieving you of the associated responsibilities and privileges. The Child Welfare Committee (CWC) takes the decision to declare a child free for adoption, after it conducts inquiries, which includes:

• A report by the probation officer/social worker,
• Consent of the child (if they are old enough),
• The required declaration from the District Child Protection Unit and the Child Care Institution or Specialized Adoption Agency, etc.

Who can surrender a child?

Regulation 7 of the Adoption Regulations states who can surrender a child for adoption: 

1. If a child born to a married couple is to be surrendered, both parents must sign the Deed of Surrender. If one parent is dead, their death certificate will be required. 
2. If one parent of a child born to a married couple decides to surrender the child and the whereabouts of the other parent are not known, the child will be treated as abandoned. The procedures for handling an abandoned child will then be followed.  
3. If a child is born to unmarried parents, only the mother can surrender the child. If the mother is a minor and her guardian or family agrees to surrender the child under the procedure given in section 35 of the Act, then an accompanying adult will sign the Deed of Surrender as the witness.
4. Only the parents or legal guardian can surrender the child. If the child is surrendered by anyone else, the child will be treated as abandoned and the procedure under Regulation 6 will be followed.
5. If the mother, including an unwed mother or a minor, surrendering the child does not want to disclose her identity, the child will be treated as abandoned.

For more information, you can read our explainer on adoption here.