Right To Privacy Of Biological Parent Prevails Over Right Of Adopted Child To Conduct 'Root Search': Calcutta High Court

The Calcutta High Court has recently held that the right to privacy of a biological parent, especially an unwed mother who gave up her child for adoption and subsequently went untraceable, would prevail over the right of the child to conduct a 'root search' to trace his origins.

A single bench of Justice Sabyasachi Bhattacharya declined a Swiss citizen's plea to trace his biological origins by seeking the relinquishment deed which was executed by the adoption agency that facilitated his adoption, as well as for action against the agency if the deed was not preserved. 

The Court held that not only would the biological mother's right to privacy be given primacy in such a situation, but that the adoption agency was under no obligation to preserve these records, which dated back to 1988. It said:

There is no reason to assume that the biological mother who was so compelled as to leave her child with an agency for being put up for adoption would welcome the idea of being exposed to the scrutiny of society or even her child at an advanced age. 

Right to privacy of biological mother prevails over adoptee's legal and constitutional right to search for biological roots

The Court was told that the petitioner's mother, an unmarried woman, had given him up for adoption in 1988 and that she did not wish to maintain any connection with the child, and went untraceable shortly after he was adopted by his Swiss adoptive parents. 

In discussing the various laws and judgments on the subject, the Court looked at the 2022 Adoption Regulations and held that although these regulations were not in force when the petitioner was adopted, they did contain the concept of a root search. 

It was held that although adoptee children did have a right to conduct a root search, the regulations also gave primacy to the right to confidentiality of the biological parents. 

The most crucial part of Regulation 47 is sub-clause (6) which clearly stipulates that the right of an adopted child shall not infringe the right to privacy of the biological parents, the Court said. 

The right to know one's roots is definitely implicit in one's existence as a human being. Quest and curiosity are the primary premises of human evolution and progress. At the level of the individual, the same translates to leading a life worth the name. However, as against the right to know one's roots, the rights of privacy and protection of identity of the biological parents of an adoptee are more fundamental and basic insofar as the said right protects the very survival of the biological parents, it added.

No reason to assume that biological mother would welcome scrutiny of society or even her child

The Court further held that although the petitioner had argued along the lines of Article 21 and the right to life, the concept of right to privacy had been read into the right to life in the Constitutional bench judgment of KS Puttaswamy v Union of India.

It was observed that as a result, the right to privacy was a fundamental right, which needed to be balanced against other fundamental rights.

In observing that the Adoption Regulations, 2022, along with the biological mother's decision to not remain traceable pointed to the conclusion that in this case, the petitioner's right to know his roots would have to remain subservient to the right to privacy of the biological mother, who presumably surrendered the child due to extreme social pressure. It said:

Subjecting the said mother to potential social ignominy and ostracization might hit at the very root of her survival. The right to privacy and confidentiality of the unwed biological mother who surrendered her child has to be given primacy over the right of the adoptee, which is more on the fringes of his human existence and survival inasmuch as the said right is an add-on to his existence, which is otherwise well-sheltered and protected in the hands of his Swiss adoptive parents with whom he has grown up during all of his 35-36 years of existence on earth. 

Accordingly, the plea was dismissed. 

Case: Fabian Ricklin, alias Ranabir Vs. State of West Bengal & Ors.

Case No: W.P.A. No. 3792 of 2023