Parenthood and a Child’s Right to Knowledge of Genetic Origins

By Shreya Jaipuria

Introduction

With increasing recognition of right to knowledge of genetic origins of a child, some authors, such as Bainham, have focused on the distinction between ‘genetic’ and ‘social’ parenthood.[1] The ‘genetic parent’ is one that has a genetic connection with the child, but may not be caring for that child.[2] For example, surrogate mothers, sperm donors, and those who give up their children for adoption. The ‘social parent’ is one who does not have a genetic connection with the child, but may be caring for that child and assuming parental responsibility.[3]

Presently, the Indian law is framed in such a manner that there is no delineation between genetic and social parenthood. In situations of adoption, surrogacy, etc., the adoptive parents or the commissioning parents are ‘deemed’ to be the genetic parents of the child. The genetic parents of the child have no legal parental status or rights over the child and the child has no absolute legal right to knowledge of genetic origins. Bainham contends that it is necessary to establish a clear concept in law to distinguish between genetic and social parenthood. In examining whether the law adequately upholds a child’s right to know her genetic origins, he suggests an inclusive approach where both, social and genetic parenthood, are acknowledged.

In this essay, the author has argued for the establishment of different legal parental concepts in Indian law to accommodate genetic and social parenthood. It has first been shown that Indian law does not give children an adequate right to know their genetic origins. The considerations limiting the right to knowledge of genetic origins have been examined. Given the advances in reproductive techniques and technology, an inclusive approach to parenthood is necessary. It has, thus, been proposed that two separate concepts of parenthood in Indian law- genetic and social, must be created. Besides diversification and inclusivity, it will also help in the realization of a child’s right to knowledge of genetic origins.  

Right to Knowledge of Genetic Origins

A rights-based approach towards recognition of right to knowledge of one’s genetic origins entails giving primacy to the right of the child. A utility-based approach is concerned with the protection of the entire family unit and the right of the child is constrained by other interests.[4] It is contended that the Indian law adopts a utility-based approach in recognising the right to knowledge of one’s genetic origins and not a rights-based approach. The United Nations Convention on the Rights of Child, 1989 (‘CRC’) imposes a positive and negative duty on the State in this regard. Thus, the State not only has to ensure that nothing prohibits a person from tracing her genetic origins, but it also has to take steps to any remove obstacles.[5] However, the Indian framework falls short on both fronts.

There is no obligation in law to disclose genetic origins of a child. The practice of surrogacy and the use of Assisted Reproductive Techniques (‘ART’) are presently unregulated. The Surrogacy (Regulation) Bill, 2020 (‘Surrogacy Bill’) is silent on the possibility of tracing genetic origins. The Assisted Reproductive Technology (Regulation) Bill, 2020 (‘ART Bill’) mandates confidentiality and donor anonymity.[6] Information can only be released at the request of the couple during a medical emergency or by a competent court order.[7] This is not an effective recognition of right to genetic origins because the general rule is that of confidentiality. It is only during a ‘medical emergency’ that information can be released and not at the desire of the child. Further, it is unclear what grounds may have to be shown before a court order in this respect is granted since the ART Bill is silent on this aspect. However, given that a medical emergency is one exception to the rule of confidentiality, we may infer that similar, exceptional circumstances may have to be shown before the court. Additionally, obtaining a court order poses hurdles to this right, since this right becomes contingent on the judge’s satisfaction regarding the necessity of genetic knowledge in that case. Combined with inordinate judicial delays, this makes the right infructuous.

Adoptees can conduct a root search to gain knowledge of their genetic origins.[8] The courts have also recognised the right of an adoptee to know her genetic origins.[9] However, there are barriers for inter-country adoptees, who have to travel to India,[10] as root search by third parties is prohibited.[11] Recently, the Bombay High Court allowed a third party to help in root search through a power of attorney.[12] It is necessary to adopt further measures to make root searches free from hurdles and make it a smoother process for adoptees, which it presently is not.[13]

Further, this right is not absolute. It is restricted by a wide ambit of factors, such as privacy, protection of family life, or even impossibility of traceability. There is ambivalence regarding the nature of right under Article 7 of the CRC. Some believe that the right is absolute while others believe that it does accommodate imposition of restrictions and limitations.[14] In some situations, an absolute right to genetic knowledge can be egregious as other factors might warrant due weightage and consideration. However, in other situations, the right to knowledge warrants greater recognition in law. Both these situations have been analysed in this article through hypothetical illustrations.

A. Right to Privacy

Right to privacy is a recognised fundamental right,[15] and its conflict with the right to knowledge of genetic origins has to be examined. The Central Adoption Resource Authority’s Adoption Regulations, 2017 (‘Adoption Regulations’) obligates the concerned adoption agency to ‘facilitate’ root search by adoptees.[16] However, if the biological parent has requested anonymity, then consent in writing must be taken before divulging any information.[17]

Further, there is a specific stipulation against infringement of the right to privacy of the biological parents.[18] For example, the biological mother could have been a rape victim and might not wish to interact with the child due to her own trauma. Given the stigma surrounding unmarried pregnancy in the Indian society, an unmarried biological mother may choose to hide her identity at the time of adoption. A root search by the child years later may possibly threaten to disrupt her family life. The Supreme Court has even upheld the unmarried mother’s complete right to privacy by stating that it is not necessary to reveal the biological father’s name in a child’s birth certificate.[19]     

Minor and teenage pregnancies pose another unique problem. If the biological mother qualifies as a ‘child’ under the CRC at the time of giving birth, her ‘best interests’ need to be balanced with the right to knowledge. It may not always be in her best interest to deal with the legal and social implications of being categorised as a minor mother. Further, even if she would like to establish genetic link with her biological child, family and societal pressures might compel her to do otherwise. Thus, the right to privacy of biological parents, especially the mother, in the Indian patriarchal society is a valid concern.

B. Fear of Stigmatisation

A possible reason that Indian law does not adequately facilitate knowledge of genetic origins can be tied to the stigma surrounding infertility in the Indian society. Inability to conceive children is deemed to be the woman’s ‘fault’ and she is presumed to be infertile.[20] A woman’s identity is tied to being a ‘mother’ and the fulfilment of her ‘essential’ gender role.[21] If the man is proved to be infertile, it is perceived to be emasculating.[22] Therefore, many couples might seek to hide the use of ART in order to avoid the possible stigmatisation that may follow. Further, prohibition of anonymity may lead to decline in the use of ART as commissioning couples might perceive the accessibility of information about the donor as a threat to their own relationship with their children. It might also disincentivise donors in case they do not wish to be contacted by any possible children in the future. This decline was observed in Sweden initially when it banned donor anonymity. However, over time the trend picked up and there was greater acceptability in society.[23]

While stigmatisation is a valid and merited concern, it is contended that anonymity, confidentiality and lack of openness only serve to bolster it. The State’s position reinforces secrecy around alternative modes of becoming parents. A more open system, where children, at the very least, have the right to know their genetic origins might help in combating stigma and building acceptance.

C.  Same-Sex Relationships

With respect to a heterosexual couple, it is unlikely that a child will question her genetic origins unless the legal parents tell her that she is not their biological child. This is because of a ‘presumption’ of a genetic link with the legal parents. Thus, it is important to acknowledge those situations, where a child is raised by a homosexual couple, undoubtedly leading her to question her genetic origins.

Following the decriminalisation of homosexuality,[24] it is not unlikely that homosexual couples may wish to live together and perhaps raise children, even though the law does not yet grant them legal recognition as a couple. The Surrogacy Bill, the ART Bill and the Adoption Regulations do not have provisions for a same sex couple to adopt, undergo ART or opt for surrogacy. A single woman can however adopt a child of any gender.[25] The proposed surrogacy law does not allow a single woman to opt for surrogacy unless she is widowed or a divorcee.[26] So, if a lesbian couple in India wants to raise a child, only one of the partners will have legal parenthood. This implies that the other will have no legal parental status even though she would have possibly had an equal contribution, if not more, in bringing up the child. A single man can only adopt a male child,[27] so one of the partners in a gay couple may adopt the child and he will be the only partner with legal parenthood. A gay couple, however, will have no opportunity to raise a female child, since a single man is not permitted to adopt a female child. A more pressing concern will however arise when the child grows up because the child will most definitely question her biological origin. However, the law is insufficient to quell the child’s genealogical bewilderment. While the Surrogacy Bill is silent on right to know genetic origins, the ART Bill mandates confidentiality. This can possibly have serious psychological implications for the child in this scenario,[28] who will necessarily have to live without the knowledge of her genetic origins.   

D. Paternity Tests and Section 112 of IEA

It has been argued that naturally conceived children within marriages, who presumably have a genetic and legal link to their parents, have as much a right to know their genetic origins as adopted children, or those conceived through surrogacy and ART.[29] When it comes to the issue of ordering paternity tests in India, the courts have largely followed a conservative approach and refused to order DNA testing especially without consent.[30] Section 112 of the Indian Evidence Act, 1872 (‘IEA’) creates a presumption that the husband of a pregnant wife will be presumed to be the genetic father of the child born within a marriage.[31] A paternity test is only ordered if there is irrefutable evidence of the impossibility of the husband being the genetic father. Even though the Supreme Court has recognised the importance of the knowledge of one’s genetic origins,[32] other considerations prevent it from making court-ordered paternity tests a norm. First, there is a risk of ‘bastardisation’ and ‘illegitimisation’ of the child. The Court generally seeks to prevent a child from the social stigma that follows.[33] Second, paternity testing can be used by husbands to obtain a divorce on the grounds of adultery and also avoid the payment of maintenance, leaving the wife and child without any financial support and security.[34] Third, courts seek to preserve the sanctity of the family unit and family life, making them reluctant to intervene and possibly cause disruption.

Since paternity is always presumed,[35] we must examine how genetic knowledge can be facilitated. A register recording one-night stands or a forced paternity test at childbirth are perhaps extremely radical approaches.[36] A push for greater acceptance and ordering of paternity testing is warranted and geared towards protection of a child’s right. However, this should not come at the expense of maintenance and fulfillment of parental responsibility. This is why it becomes important to clearly outline parental responsibility in such situations, which the Indian law lacks at present.

Inclusive Approach- Delineation of Genetic and Social Parenthood in Law?

A. Need for Delineation of Genetic and Social Parenthood

Biological parents have no legal parenthood status in India in cases of adoption, surrogacy and ART. Under the proposed surrogacy law, an order concerning the parentage and custody of the child has to be passed by the Magistrate for the procedure to stand completed.[37] Only gestational surrogacy is permitted,[38] which means that the surrogate will have no genetic link to the child. The proposed law also states that the child shall be ‘deemed’ to be the ‘biological’ child of the intending couple or woman and is entitled to all rights and privileges available to a natural child.[39] The ART Bill also uses similar terminology,[40] and obligates the gamete donor to relinquish all parental rights over any children that may be born from his or her gamete.[41] These stipulations are a clear indication that the State is not unaware of the importance of the genetic link. However, its present and proposed laws do not give primacy to the child’s interests and privilege the right to privacy of genetic parents and the stigma that may befall the family unit and the adoptive/social parents. It barely facilitates knowledge of genetic origins, let alone establishment or recognition of this genetic link in law.

An inclusive approach to parenting, by accommodating both the ‘genetic’ and the ‘social’ parent, under law may be adopted. The genetic parent is synonymous with the biological parent in this context. The social parent refers to that individual who raises the child and performs the social role of being a parent. Bainham suggests conferring parental responsibility on the social parent, but according legal parenthood to the genetic parent.[42]

B. Position under Indian Law

Under Indian law, the closest one may come to the delineation of such concepts is through ‘guardianship’, where only ‘parental responsibility’ is conferred on the guardian. S. 24 of the Guardians and Wards Act, 1890 states the duties of a guardian, wherein the guardian is required to support the ward and look after its health, education, and other ancillary matters.[43] Any other rights or duties associated with legal parenthood, such as the parent’s right to be maintained by one’s child or the child’s right to inheritance are not attached to ‘guardianship’. Indian law has no provision to recognise social parenthood. With greater use of ART and varied reproductive choices, there is a need for the law to grant sufficient recognition to social parenthood and move away from its focus on biological and genetic parenthood. This is to say that, for example, even if the husband in the marriage is not the biological or genetic parent of the child conceived through ART, he will still be legally recognised as the social parent while the donor will be recognised in law as the biological or genetic parent. On one hand, such delineation gives effect to child’s right to knowledge of genetic origins. On the other, it ensures that the rights and duties of the husband in the marriage, who is raising the child and performing daily parental tasks, are also protected. However, there are certain challenges to this delineation, especially in the Indian context.

C. Challenges to the Delineation of Genetic and Social Parenthood

First, the rights and duties associated with the concept of genetic parenthood and how such rights will be exercised need to be clearly defined. For example, visitation rights (if any) of the genetic parent, the extent of involvement in the child’s life (if at all), and any duty owed to the child. Further, privacy issues relating to unmarried mothers, rape victims, minor mothers mentioned earlier will persist and possibly exacerbate. Legal requirement of recognition of their parenthood can be disastrous. Women may be compelled to take drastic measures, such as abandonment of children or perhaps harming their own lives. Thus, this necessitates an exception to be worked into the statute. Further, the problem of discrimination against illegitimate children born naturally within a subsisting marriage remains. The husband will be accorded genetic and legal parenthood irrespective of whether he is the genetic father or not. One way to address this would be the drastic and privacy-intruding measure of a paternity test during childbirth being made mandatory for all. Only this would allow any illegitimate child born within a subsisting marriage to know whether the husband of their mother is its genetic father or not. Without such a measure, the husband would be presumed to be the genetic and legal parenthood, thus, limiting the effective realisation of the child’s right to knowledge of genetic origins.

However, some of these problems can be suitably accounted for while others are too exceptional in nature. An inclusive approach to parenting especially benefits queer couples, whose children are more likely to question genetic origins and develop a relationship with their genetic parents. This concept of distinction will enable them and make open parenting more acceptable. Further, it throws open the possibility of more diverse and inclusive families, breaking the heteronormative construct of an ideal family comprising 1 mother, 1 father and their child/children.

Conclusion

Indian law does not give a child an absolute right to know her genetic origins. Courts are reluctant to order paternity tests in light of S. 112 of IEA. The Adoption Regulations, 2017 provide for root searches, but that has its own barriers and restrictions. ART is, at present, unregulated but the proposed law has no provision for securing a child’s right to knowledge and makes donor confidentiality and anonymity mandatory. Thus, Indian law has a long way to go before right to knowledge of genetic origins is secured. Further, given the conflicting rights and concerns attached, arguing for an absolute right could prove to be radical and unjust.

We must constantly question our idea of a ‘family’ and the norm of necessarily having only 2 ‘parents’ to adopt a more inclusive and open approach. Bainham’s proposal to delineate the concept of parenthood into genetic parenthood and social parenthood should be incorporated in Indian law. Not only does it help in the recognition of the right to knowledge of genetic origins but, more importantly, it broadens our ideas of a family, making parenting more open and inclusive. While there are certain challenges to this delineation, they are either exceptional situations or may be suitably addressed under the law.

The author, Shreya Jaipuria, is currently a law student at the National Law School of India University (NLSIU), Bangalore.

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[1] Andrew Bainham, ‘Parentage, Parenthood and Parental Responsibility: Subtle, Elusive Yet Important Distinctions’ in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds), What is a Parent? A Socio-Legal Analysis (Hart Publishing 1999).

[2] ibid, at 26.

[3] ibid, at 26.

[4] Julie Wallbank, ‘The Role of Rights and Utility in Instituting a Child’s Right to Know Her Genetic History’ (2004) 13 Soc & Legal Stud 245, 246.

[5] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC), art 7 and 8.

[6] Assisted Reproductive Technology (Regulation) Bill 2020, cl 21(e) and 27(6).

[7] Assisted Reproductive Technology (Regulation) Bill 2020, cl 21(2).

[8] Adoption Regulations 2017, reg 44.

[9] Lakshmi Kant Pandey v Union of India AIR 1984 SC 469 (Supreme Court of India); Maria Chaya Schupp v The Director General of Police, Bangalore MANU/KA/3912/2013 (Karnataka High Court).

[10] Anand Chandrasekhar, ‘Finding biological parents abroad is an uphill struggle for adoptees’ (Swissinfo.ch, 14 January 2020) <https://www.swissinfo.ch/eng/needle-in-haystack_finding-biological-parents-abroad-is-an-uphill-struggle-for-adoptees/45490004&gt; accessed 23 May 2020.

[11] Adoption Regulations 2017, reg 44(6).

[12] Beena (Leena) Makhijani Muller v The Commissioner, Department of Women & Child Development, Maharashtra MANU/MH/3010/2019 (Bombay High Court).

[13] Mohua Das, ‘How foreign adoptees are finding their Indian birth parents’ The Times of India (12 December 2019) <https://timesofindia.indiatimes.com/india/how-foreign-adoptees-are-finding-their-indian-birth-parents/articleshow/72472315.cms&gt; accessed 23 May 2020; Sunanda Mehta, ‘Make road to root searches hurdle-free’ The Indian Express (11 July 2017) <https://indianexpress.com/article/opinion/web-edits/make-road-to-root-searches-hurdle-free-4744605/&gt; accessed 23 May 2020.

[14] Brigitte Clark, ‘A Balancing Act? The Rights of Donor-Conceived Children to Know Their Biological Origins’ (2012) 40(3) Georgia Journal of International and Comparative Law 619.

[15] K.S. Puttaswamy v Union of India (2019) 1 SCC 1 (Supreme Court of India).

[16] Adoption Regulations 2017, reg 44(2). The CARA is a statutory body created to regulate adoption. The Adoption Regulations formulated by it are binding.

[17] Adoption Regulations 2017, reg 44(4).

[18] Adoption Regulations 2017, reg 44(7).

[19] ABC v The State (NCT of Delhi) AIR 2015 SC 2569 (Supreme Court of India).

[20] Catherine Kohler Riessman, ‘Stigma and Everyday Resistance Practices: Childless Women in South India’ (2000) 14(1) Gender and Society 111.

[21] World Health Organisation, ‘Mother or nothing: the agony of infertility’ (2010) 88(12) Bulletin of the World Health Organisation 881-2.

[22] Sheela Saravanan, A Transnational Feminist View of Surrogacy Biomarkets in India (Springer 2018) 22, 58, 62; Sucharita Pujari and Sayeed Unisa, ‘Failing Fatherhood: A Study of Childless Men in Rural Andhra Pradesh’ (2014) 63(1) Sociological Bulletin 21, 22; Dr Deepthi Bawa, ‘Fearing stigma, men shy away from infertility issues’ The New Indian Express (Bangalore, 4 July 2019) <https://www.newindianexpress.com/cities/bengaluru/2019/jul/04/fearing-stigma-men-shy-away-from-infertility-issues-1999023.html&gt; accessed 23 May 2020.

[23] Ken Daniels, ‘The Swedish Insemination Act and Its Impact’ (1994) 34(4) Anzjog 437, 438; S Isaksson and others, ‘Two decades after legislation on identifiable donors in Sweden: are recipient couples ready to be open about using gamete donation?’ (2011) 26(4) Human Reproduction 853, 855 and 858.

[24] Navtej Singh Johar v Union of India AIR 2018 SC 4321 (Supreme Court of India).

[25] Adoption Regulations 2017, reg 5(2)(b).

[26] –, ‘Report of the Select Committee on The Surrogacy (Regulation) Bill, 2019 (Rajya Sabha Secretariat, New Delhi 2020) para 4.24.

[27] Adoption Regulations 2017, reg 5(2)(c).

[28] Claire E. Wakefield and others, ‘The psychological impact of genetic information on children: a systematic review’ (2016) 18 Genetics in Medicine 755.

[29] An Ravelingien and Guido Pennings, ‘The Right to Know Your Genetic Parents: From Open-Identity Gamete Donation to Routine Paternity Testing’ (2013) 13(5) The American Journal of Bioethics 33.

[30] Banarsi Dass v Teeku Dutta (Mrs) (2005) 4 SCC 449 (Supreme Court of India); Sharda v Dharampal (2003) 4 SCC 493 (Supreme Court of India); Kamti Devi (Smt) v Poshi Ram AIR 2001 SC 2226 (Supreme Court of India); Goutam Kundu v State of W.B. (1993) 3 SCC 418 (Supreme Court of India) Sadashiv Mallikarjun Kheradkar v Nandini Sadashiv Kheradkar 1995 SCC OnLine Bom 224 (Bombay High Court).

[31] Indian Evidence Act 1872, s 112.

[32] Lakshmi Kant Pandey (n 7).

[33] Bhabani Prasad Jena v Convenor Secretary, Orissa State Commission for Women AIR 2010 SC 2851 (Supreme Court of India).

[34] Anjali Thomas, ‘India’s Doubting Fathers and Sons Embrace DNA Paternity Tests’ The New York Times (16 August 2013) <https://india.blogs.nytimes.com/2013/08/16/indias-doubting-fathers-and-sons-embrace-dna-paternity-tests/&gt; accessed 23 May 2020.

[35] Indian Evidence Act 1872, s 112.

[36] I Glenn Cohen, ‘Of Modest Proposals and Non-Identity: A Comment on the Right to Know Your Genetic Parents’ (2013) 13(5) The American Journal of Bioethics 45.

[37] Surrogacy (Regulation Bill) 2019, cl iii(a)(II). Please note that this is the latest version of the Bill available publicly.

[38] Surrogacy (Regulation) Bill 2019, cl 2(zf).

[39] Surrogacy (Regulation) Bill 2019, cl 7.

[40] Assisted Reproductive Technology (Regulation) Bill 2020, cl 31(1).

[41] Assisted Reproductive Technology (Regulation) Bill 2020, cl 31(2).

[42] Bainham (n 1), at 27

[43] Guardians and Wards Act 1890, s 24.