Read Judgment- xxxxx v. STATE OF KERALA AND ORS

Tulip Kanth

Kochi, August 17, 2021: The Kerala High Court recently directed that necessary steps shall be taken to have separate forms prescribed for registration of births and deaths and for issuance of certificates in cases relating to conception through Assisted Reproductive Technologies (ART) procedure of single parent or unwed mother.

A Bench of Justice Sathish Ninan allowed a Writ Petition, filed by a woman who conceived through IVF, questioning the requirement to fill the column relating to the name of the father in the form for registration of births and deaths of the children, under the Kerala Registration of Births and Deaths Rules, 1970. 

The Petitioner, a divorcee, opted to get conceived by IVF and the identity of the sperm donor had not been disclosed to the petitioner and kept anonymous.

The petitioner vehemently contended that she cannot be required to provide the name of the father, as the identity of the sperm donor is kept anonymous and has not been and could not be disclosed even to the petitioner.

The Petitioner also challenged the directions of Ministry of Home Affairs, Government of India, issued to the Chief Registrar of Births and Deaths throughout the country, to have the birth of the child of a single parent/unwed mother to be registered showing the name of the single parent in the birth record leaving the name of the other parent blank.

It was also brought to the notice of the Court that such requirement intrudes upon the petitioner’s right of privacy, liberty and dignity.

The High Court enunciated that the right of a woman to make reproductive choices has been recognized in India as a fundamental right. The Bench also asserted that the right of a woman for reproductive decisions and personal choices having been recognized as a constitutional right, and there are instances where single/unwed women choose to have a child through the ART procedure.

The Court referred to the Apex Court’s judgment in K.S.Puttaswamy v. Union of India , 2017 (10) SCC 1, wherein it was declared that a concomitant of the fundamental right of privacy is the right to make choices fundamental to a person’s way of living. It cannot be interfered with by the State except for compelling reasons and/or harm caused to other individuals.

The Assisted Reproductive Technology (Regulation) Bill, 2020 was also mentioned by the Court and it was observed that the Bill indicates that it also recognizes the right of a woman of legal age of marriage to approach the ART clinic and avail ART procedure. The duty to maintain confidentiality of the donor etc. as was there in the guidelines is maintained in the Bill.

Justice Sathish Ninan also maintained the view that rights of a single woman to conceive through ART procedure is recognized and accepted in the country.

“Having conceived through ART procedure, the identity of the sperm donor cannot be disclosed except in circumstances as may be compelled for, under law. It falls within the realm of the ‘right of privacy’. The said right has also been recognized in the guidelines for ART clinics, with very little exceptions,” added the Court.

It was also made clear that the identity of the donor is not disclosed to the petitioner. Under the circumstances, there is no rhyme or reason in requiring the petitioner to provide the name of the father in the form prescribed for registration of birth and death.

The Bench also held that requiring the petitioner to leave the column regarding the details of father as blank, the issuance of a certificate of birth or certificate of death leaving the space provided therein regarding the details of the father as blank, necessarily affects the right of dignity of the mother as well as the child. 

The right of a single parent/unwed mother to conceive by ART having been recognized, prescriptions of forms requiring mentioning of name of father, the details of which is to be kept anonymous, is violative of the fundamental rights of privacy, liberty and dignity. It is for the State Government to bring out appropriate forms for registration of births and deaths, and also certificates of births and deaths, in such cases, noted the Bench.

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