By Kale Sanskruti Madhukar and Anshika Patel
Introduction
In August 2023, in the Indian case of Fabian Ricklin v. State of West Bengal (Fabian Ricklin), the Calcutta High Court (HC) grappled with the question of which right is paramount – the adoptee’s right to root search or the biological parents’ right to privacy?
Calcutta HC observed that the right to root search, recognised by the Adoption Regulations, 2022 (AR), is implicit in an adoptee’s right to life. However, the HC further noted that such a right is subject to the biological parents’ right to privacy. Therefore, it was ultimately held that an adoptee’s right to root search may be subservient to the privacy rights of biological parents.
Internationally, several frameworks are in place relating to these rights, such as the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR), the Convention on the Rights of the Child (CRC), and the Hague Convention on Intercountry Adoption (HCIA). Approaches vary from country to country and, in the national Indian context, even from state to state, with some prioritising privacy while others favour openness. Therefore, this blog aims to analyse arguments on both sides from a domestic and an international perspective and propose recommendations to balance these rights within a fragmented Indian legal system.
Arguments for the Adoptee’s Right to Root Search
“Who am I?” This haunting question isn’t mere curiosity for adoptees, but a battle cry for a complete identity. Historically, adoption practices have prioritised secrecy. However, since the 1970s, adoptee’s right to root search has gained global acceptance.
Articles 7 and 8 of the CRC recognise the right to root search. Additionally, Article 9 of the UN Declaration on Youth Welfare, Foster Care, and Adoption also acknowledges the importance of birth information. The aforementioned right is further upheld by the HCIA. Recently, Ireland introduced a legislation giving adoptees, aged 16 or above, automatic access to their birth certificates. Some US states also allow adult adoptees to access non-identifying information about their biological parents. Some states even grant access to original birth certificates. Even the Karnataka HC in Maria Schupp has acknowledged an adoptee’s right to root search.
Clinical research indicates that adoptees face more psychological challenges than non-adoptees. Adoptees’ identity formation is hindered because “they have the knowledge that an essential part of the self has been cut off and remains on the other side of the adoption barrier.” Some adoptees also struggle with “genealogical bewilderment,” which is the belief that one’s genetic background is concealed by legal obstacles, making it difficult to develop a complete sense of self. Additionally, some medical conditions have complex genetic patterns. Thus, by revealing genetic predispositions, adoptees can gain insights into potential health risks they might not have otherwise considered, and take proactive steps towards early detection and prevention.
Arguments for the Biological Parents’ Right to Privacy
Internationally, the right to privacy is recognised as a basic human right, as enshrined by Article 12 of the UDHR and Article 17 of the ICCPR. The contended right to privacy of Biological parents flows from the general Right to Privacy.
Recently, in an advisory opinion, the European Court of Human Rights reiterated the recognition of the Biological parents’ right to privacy as delineated under Article 8 of the European Convention on Human Rights. Furthermore, Slovenia mandates the consent of biological parents before releasing any information to the adoptee, thus recognising privacy. Similar provisions are in place in Hungary and Estonia. Czechian law, too, prioritises the privacy of biological parents, especially mothers who choose a confidential birth. Even in the US, adoption laws primarily focus on the biological parents’ privacy, as, in many states, adoptees do not have a legal right to connect with biological parents, accessing identifying information about biological parents requires a court order, and circumstances such as confidential birth allow absolute anonymity. This right was further upheld in the recent Indian case of Fabian Ricklin, as discussed earlier.
The aforementioned countries prioritise the privacy of biological parents as they recognise that the repercussions of disclosing their identity could be severe, especially in cases involving rape survivors, unmarried biological mothers and teenage pregnancies. In most cases, the aforesaid mothers hide their past from their family members to escape social condemnation. Against this backdrop, the sudden appearance of an adoptee could lead to domestic abuse or even marital breakdown. Hence, giving precedence to the adoptee’s right might compel women to take drastic measures including abandonment of children and harming their own lives.
Additionally, many societies do not celebrate the act of giving up a child, thus forced disclosure of identities can lead to stigma and even ostracism. In some cases, adoption may have occurred during politically or socially turbulent times, therefore disclosing identities may dredge up past trauma, causing emotional distress.
Cracks in the Cradle: Addressing loopholes in the Indian Adoption Law
The 2022 AR are filled with vague guidelines, leading to ambiguities and loopholes.
For example, Regulation 47(1) gives rise to two sets of biological parents, one that chooses anonymity at surrender, and another that doesn’t. This raises the question: Can adoptees infringe on the privacy of those parents who haven’t specified anonymity? If yes, is the right to privacy so feeble that a mere oversight in specifying anonymity at surrender cost them their privacy? Does the law allow this? More importantly, does the law intend to do this?
Similarly, the right to root search has an undefined scope. AR, 2022 do not specify what information the adoptee can access. Does the right only cover adoption files and birth records? Or should it also include parents’ medical history, and the identity of biological siblings?
According to Regulation 47(4), information can be withheld by the concerned authorities if biological parents do not consent, or are untraceable. However, authorities must communicate the same to the adoptee. Now, even after such communication, if the adoptee finds the parents, who hadn’t requested anonymity, but still contend privacy breach, then would the adoptee be liable? Inversely, if the biological parents had requested anonymity, the same is communicated to the adoptee. However, if the adoptee finds them and breaches their privacy, then what would be the adoptee’s liability?
Glaringly, AR, 2022 are dead silent on all the aforementioned questions.
Mending the Broken Cradle: Recommendations for Indian Adoption Law
Indian Adoption law should require biological parents to share relevant health information. This practice is followed in the US where the biological parents provide medical history, reasons for adoption, and background details like race, ethnicity, physical description, biological siblings, etc. We recommend that India should adopt a similar mechanism, keeping this information confidential but accessible to the adoptee upon request. This way, the right to privacy is preserved, as is the adoptee’s right to fair medical care which hinges upon the right to root search.
When faced with a total information blackout, adoptees might turn to privacy-invading methods such as genetic testing, where users are linked based on their genetic similarities on the internet. Thus, if other biological siblings are part of a DNA database, a family link could be established, revealing identities. Therefore, providing basic background information to the adoptee is one of the fairest ways of balancing both these rights, so that, instead of acting as an antagonist, the right to root search can help protect biological parents’ privacy.
India can also borrow the “Contact Veto Provision” (CVP) from New South Wales, Australia, where if the biological parent wishes anonymity, they can lodge a CVP. It prohibits communication but allows disclosure of information, that, too, only if the adoptee legally promises not to utilise it to pursue contact. However, since CVP unfairly prioritises biological families’ privacy over the adoptee’s right to know, it should be introduced with amendments by providing adoptees with the most comprehensive details, such as reasons for adoption and medical history.
Indian Adoption law is a tangled mess, leaving both stakeholders in a bureaucratic maze. Thus, India needs a legislative overhaul and not a band-aid solution. Only then can we build an adoption system worthy of the 21st century.
Bios:
Kale Sanskruti Madhukar is a third-year law student at Gujarat National Law University with interests in women and child rights and the intersection of human rights and technology, specifically AI, data privacy, and data protection.
Anshika Patel is a second-year law student at Gujarat National Law University with interests in policy-making, legislative drafting, and the rights of women and children.