The Karnataka High Court’s precedent-setting order recognising the right of an adoptee to know the identity of her birth mother underscores the need for a child-centric adoption law in India
Chaya’s six-year-old legal battle to search for her roots came to a fruitful end this week. The Karnataka High Court allowed her petition and directed the police to investigate the details of her biological mother and the conditions under which she was given up for adoption by the orphanage.
This order is by no means the end of Chaya’s search. She still has not located her birth mother and it is not clear if the police investigation more than 30 years after her adoption will lead to any result. But today, Chaya’s minor victory in getting a direction for police investigation is a huge victory for adoptees from all over the world now coming back to India in search of their biological identity. This judgment is the legal recognition of the adoptee’s Right to Know, which has been widely accepted in many jurisdictions but not clarified in the Indian context at all.
A person’s right to know her biological or genetic origins raises some of the hardest legal and ethical issues that we have had to face in the last several years. This question arises not only in the case of adopted children, but also in cases of abandoned or displaced children, children conceived by artificial insemination or of children born out of wedlock. It opens up, in the words of [leading international human rights lawyer] Geraldine van Beuren, “a whole Pandora’s Box — the principle of the best interests of the child and her right to know very often conflicts with other competing rights such as the mother’s right to privacy and autonomy and the rights of the adoptive parents.”
Psychological need as right
Persons who seek information of the identity of their biological parents, articulate this need as a right to know their origins. The need to know one’s parentage and background is crucial to children and adults who do not have this information. According to Katherine O’Donovan there are three main needs to have this information. “First there is often the desire to know one’s medical and health history and for this purpose knowing the medical history of one’s parents and ancestors becomes important. The second interest is one’s legal interest in property, which blood relationship may confer on children. These two are subsidiary interests. The primary interest really is the third, which is a psychological need for identity.”
The psychological need to know one’s roots or identity is found to be the most important reason as to why adoptees want to know about their biological parents. John Triseliotis documented in his well-known 1984 study of adoptees that there is a psychological need in all people, manifest principally among those who grow up away from their original families, to know about their background, their genealogy, and their personal history, if they are to grow up feeling complete and whole.
This psychological need to know one’s origins has now been recognised as a human right. Internationally, this right is widely perceived as the Right to Know — and is considered as an integral part of one’s Right to Life and Right to Privacy. It protects each individual’s interest to identify where she came from. The child’s right to know her identity has also been guaranteed in the 1989 Convention on the Rights of the Child, the 1993 Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption and recent case law of the European Court of Human Rights.
With regard to the question of an adoptee’s right to get information about her biological parents, the Supreme Court in the case of Laxmikant Pandey v. Union of India held, “... if after attaining the age of maturity, the child wants to know about its biological parents, there may not be any serious objection to the giving of such information to the child because after the child has attained maturity, it is not likely to be easily affected by such information and in such a case, the foreign adoptive parents may, in exercise of their discretion, furnish such information to the child if they so think fit.”
Grey area in India
This Right to Know is not yet universally accepted or acknowledged as being sufficiently fundamental or vital to give rise to a human right in India. In India, the Right to Life is guaranteed under Article 21 of the Constitution, which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to life has been expanded by the Supreme Court in many important judgments to include the right to privacy and dignity but questions of personal identity and privacy have not been raised till date. To some extent, concerns of protection of identity and privacy are being raised with respect to the Unique Identification project, but they are not articulated in terms of seeking one’s right to identity where such information is not available.
To this end, Chaya’s battle has broken new ground. The Karnataka High Court first recognised the Right to Know as a fundamental right under Article 21 of the Constitution, when Justice Ananda Byrareddy stated, “ …the Petitioner is seeking to enforce a right which is well recognised. The right to know one’s origin is a dimension of the broader right to ascertain and preserve one’s identity.” Thereafter, the Division Bench of Justice K.L. Manjunath and Justice Malimath directed the State machinery and the police to investigate Chaya’s search for her biological parents and birth identity.
Chaya’s case highlights the need to articulate a policy and legal mechanism for openness in adoption records. The legal mechanism needs to recognise such a right to information of one’s biological parents and lay down the principles guiding the enforcement of this right in practice. It highlights the need for a comprehensive child-centric adoption law in the country, which will address all issues arising out of adoption in a holistic manner, including the important issue of the right to identity of an adoptive child and its protection.
(Jayna Kothari is with the Centre for Law and Policy Research, Bangalore.)