Kerala High Court: Satish Ninan, J., held that the mandatory requirement for disclosing Father’s name in Birth/Death Certificate was violative of Fundamental Right. Addressing the direction of Ministry of Home Affairs where instead of amending the format it had directed to leave the details of father vacant, the Bench stated,
“Requiring the petitioner to leave the column regarding the details of father as blank for the issuance of a certificate of birth or certificate of death necessarily affects the right of dignity of the mother as well as the child.”
Mandatory Requirement for Disclosing Father’s name in Birth/Death Certificate
The petitioner was a divorcee who had opted to get conceived by In Vitro Fertilization (in short, “IVF”) procedure. The identity of the sperm donor had been kept anonymous and had not been disclosed to the petitioner. The grievance of the petitioner was with regard to fulfilment of certain formalities for registration of the birth of the child, on delivery. In other words, the petitioner was aggrieved by the format of Rule 8 of the Kerala Registration of Births and Deaths Rules, 1970 which made it mandatory to disclose the name of the father of the child. The petitioner assailed the said provision on the grounds that she could not be required to provide the name of the father as the same would be violative of her fundamental rights, for reasons that:
- The identity of the sperm donor is kept anonymous and has not been and could not be disclosed even to the petitioner,
- such requirement intrudes upon her right of privacy, liberty and dignity.
In ABC v. State (NCT of Delhi) (2015) 10 SCC 1, the Supreme Court had held that, “There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother apply for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary.”
Following in the abovementioned decision, the Ministry of Home Affairs, Government of India, had issued directions 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. The petitioner argued that to leave the column relating to the name of the father in the prescribed form as blank, interferes with the right of dignity, privacy and liberty.
Registration of Births and Deaths Act, 1969 Section 8(1) of the Act requires the particulars sought for in the forms prescribed by the State Government, to be furnished to the Registrar.
Reliance was also placed by the petitioner on the decision of the Supreme Court in Suchita Srivastava v. Chandigarh Admn. 2009 (9) SCC 1, wherein the Court had held that, reproductive choice of a woman is a fundamental right encompassed under Article 21 of the Constitution of India. The right to procreate as well as to abstain from procreation has been recognized as a colour of the right of personal liberty.
Findings of the Court
In K.S.Puttaswamy v. Union of India, 2017 (10) SCC 1, it was held by the Supreme Court that personal choice governing a way of life are intrinsic to privacy and one of the connotations of “privacy” includes decisional autonomy which comprehends intimate personal choices such as, those governing reproduction as well as choice expressed in public such as, faith or modes of dress.
In the year 2005, the Ministry for Health and Family Welfare, Government of India had issued “National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India” with regard to functioning of ART clinics in India, which states:
“3.5.2 There would be no bar to the use of ART by a single woman who wishes to have a child, and no ART clinic may refuse to offer its services to the above provided…”
The Bench also took note of the “The Assisted Reproductive Technology (Regulation) Bill, 2020”, and opined that rights of a single woman for reproductive decisions and personal choices having been recognized as a constitutional right, there are instances where single/unwed women choose to have child through Assisted Reproductive Technologies (ART).
Hence, the Bench stated that when the identity of the donor was not disclosed to the petitioner there was 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 held that the concept of conceiving through ART had been foreign to this country a few decades back till the first “test tube baby” was born but now when the right of a single parent/unwed mother to conceive by ART had been recognized, prescriptions of forms requiring mentioning of name of father, the details of which is to be kept anonymous, was violative of the fundamental rights of privacy, liberty and dignity and it was 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.
In the light of the above, the Bench directed the State of Kerala to provide a separate form to such applicants which do not contain the field regarding the name and other details of the father. In so far as certificate of death was concerned, the Bench was of the view that it would suffice if in the column where the name of the father or husband is sought for, another entry could be made as that of the mother (like Father / Husband / Mother). Additionally, noticing that the petitioner was in the 8th month of pregnancy, the Bench directed that the necessary steps should be taken immediately.[X v. State of Kerala, WP(C) NO. 13622 of 2021, decided on 13-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Adv A.Aruna
For the Respondents: Govt. Pleader M.H.Hanil Kumar and S.Krishna, CGSC