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xxxx v. State of Kerala

  • Order

Constitution of India – 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. As is always, the “rights” are quite often misused. To settle scores in the ‘in-family’ feuds, registration in such forms would be sought for. This could be resolved by requiring the applicants to furnish an affidavit that she is a single parent/unwed mother conceived through ART procedure and produce along with the same a copy of medical record in support thereof. To such applicants, a separate form, which does not contain the field regarding the name and other details of the father shall be prescribed. In so far as certificate of death is concerned, 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). [Para 21]

Constitution of India – The concepts of “right of privacy, right of liberty and the right of dignity”Single Parent / Unwed Mother – In Vitro Fertilization (IVF) ProcedureIssue of guardianship – National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India – Concern of the petitioner relates to fulfilment of certain formalities for registration of the birth of the child, on deliveryThe right of a single woman/unwed mother, to conceive through ART procedures having been recognized, it is for the State to provide appropriate forms for registration of births and deaths of children born through such procedures, and for issuance of birth/death certificates.

The petitioner contends that she cannot be required to provide the name of the father, for reasons more than one viz., (i) The identity of the sperm donor is kept anonymous and has not been and could not be disclosed even to the petitioner, (ii) such requirement intrudes upon her right of privacy, liberty and dignity. 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. 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.

Registration of Births and Deaths Act, 1969 – Section 8 – Registration of Births and Deaths Rules, 1970 (Kerala) – Persons required to register births and deaths – Form contains columns which require disclosure of the name of the father of the child.

The forms prepared in terms of the Rules require furnishing of various informations regarding the father of the child including name, education, occupation. The birth certificate to be issued under Rule 8 of the Rules also contains a column for mentioning the name of the father. The certificate of death in terms of Rule 8 of the rules provide for furnishing of the name of the father or the husband; but it does not provide for furnishing of name of the mother. These mandatory fields in the prescribed forms are violative of the fundamental rights of the petitioner, is the argument.

Assisted Reproductive Technology (Regulation) Bill, 2020 – 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. [Para 19]

Constitution of India – Article 21 – “personal liberty” – Reproductive choice of a woman is a fundamental right – the right to procreate as well as to abstain from procreation has been recognized as a colour of the right of personal liberty.

The petitioner is in the 8th month of pregnancy. Considering the urgency of the situation, necessary steps shall be taken by respondents 1 and 3 to have separate forms prescribed for registration of births and deaths and for issuance of certificates in cases relating to conception through ART procedure of single parent/unwed mother, immediately. The writ petition is allowed as above. The Advocate General’s Office shall take up the issue with the concerned and have the needful done without delay.

Case Law Reference

  1. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
  2. K.S. Puttaswamy v. Union of India, 2017 (10) SCC 1
  3. Devika Biswas v. Union of India, AIR 2016 SC 4405
  4. ABC v. State (NCT of Delhi), (2015) 10 SCC 1
  5. Suchita Srivastava v. Chandigarh Admn., 2009 (9) SCC 1

Citations : 2021 (4) KCC 259 : 2021 (4) KHC 641