Impact Of Surrogacy & DNA Regulation Laws On The Presumption Of Paternity Under Section 112 Of The Indian Evidence Act

Section 112 of the Indian Evidence Act, 1872, states that any person born during the continuance of a valid marriage between his mother and "any man" shall be conclusive proof that he is the legitimate son or daughter of the parties to the marriage, unless non-access between the parties to the marriage is satisfactorily proved.

With the advent of technology and DNA profiling, many arguments are put forth by academicians, questioning the need for such "presumption of legitimacy" when conclusive proof can now be drawn from proven scientific methods. Right to reproductive autonomy being a fundamental right under Article 21 of the Constitution^[1], couples who are unable to procreate naturally, can avail the aid of Assisted Reproductive Technology (ART) methods such as surrogacy, in vitro fertilization and in-uterine fertilization to have issues. This article aims to understand the scope of Section 112 of the Indian Evidence Act, 1872, with the Assisted Reproductive Technology Bill, the Surrogacy Regulation Bill and the DNA Technology (Use and Application) Regulation Bill, and the relevance of section 112 with changing times.

INTENTION OF THE LEGISLATURE.

It can be understood from the express language of the provisions under Section 112, that the intention of the legislature is to ensure that no child is bastardised. The social and cultural framework of the nation while framing the provisions of the Act, has to be taken into account while interpreting the same.

The intention of the legislature has always been to maintain the sanctity of marriage and retain the legitimate status of any person born during the currency of wedlock unless proven otherwise. The term "any man" used in Section 112 of the 1872 Act, instead of the term "husband", especially when the term "mother" is used, shows that the Act, contemplates the unfortunate possibility of adultery by the woman in the marriage, and still presumes legitimacy in favour of the child, until non-access is sufficiently proved by the husband. It is needless to state that this is only a rebuttable presumption.

It can be initially argued that Indian Evidence Act, being legislated in 1872, being a pre-independence Act, did not take into account the various scientific advancements and technological growth in DNA profiling. Hence it may even be argued by some that the section has become archaic due to the various technological advancements in DNA profiling etc.^[2]

In my opinion, it has to be understood that this is only a rebuttable presumption. Moreover, from the very fact that the various bills that have been introduced in the parliament from 2008-2019, where such presumption of legitimacy is still retained by the Legislature; it is to be understood, that the lack of monumental technological advancements in science was not the reason behind the such presumption, but the primary principle was that the welfare of the child being of paramount importance, the State's intention was to bestow maximum legal rights of legitimacy upon every child, while retaining the sanctity of the institution of marriage.

The various landmark judgements of the Hon'ble Supreme Court and Hon'ble High Courts where maternity leave has been granted for intending mothers who have conceived children through a surrogate,^[3] will reinforce the intention of the judiciary to confer legitimacy upon the children conceived through Assisted Reproductive Technology methods such as surrogacy, in vitro fertilization etc. The children conceived through surrogacy are deemed to be the legitimate children of the intending parents.^[4]

Assisted Reproductive Technology Bill, was introduced in the Lok Sabha in 2008, seeking to regulate assisted regulated technology procedures including surrogacy procedures in India and consequently sought to legalise commercial surrogacy, in pursuance of the 102^nd Parliamentary Standing Committee Report. Section 61 of the ART Bill, lays down provisions with regard to presumption of legitimacy of the children conceived through the process of surrogacy.

PRESUMPTION OF LEGITIMACY

Section 61 states that any child/children born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock with the consent of both the spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.

This section reiterated the presumption laid down under Section 112 of the Indian Evidence Act. The purpose behind the enactment of this Section is to ensure that the child conceived through Surrogacy is not bastardised due to any differences between the commissioning parents. This is a protection extended by the State to ensure that any child abandoned by the commissioning parents, is not left to fend for themselves without any legal rights in accordance with Article 39(f) of the Constitution of India.

By virtue of Section 61, a child born to an ever-married woman through surrogacy shall be presumed to be the legitimate child of that woman. If the commissioning couple divorce each other after initiating the procedure but before the birth of the child, the child shall be presumed to be the legitimate child of the commissioning couple. Child born to an ever-married woman with the frozen sperm of her dead husband shall be considered to be the legitimate child of that couple. It is to be noted that the section particularly refers to the dead husband, but not a divorced husband. Donor of the ooplasm and the ovum immediately relinquish all their parental rights over the child/children born through surrogacy. Child born to commissioning couple who are Overseas Citizens or People of Indian Origin or foreigners married to Indian citizens, shall not be an Indian Citizen even if born in India, and shall be entitled to Overseas Citizenship of India under Section 7A of the Indian Citizenship Act, 1955. Child after reaching the age of 18 shall be entitled to information about the donor/surrogate, excluding personal identification. Personal information of the donor or surrogate shall be released only in cases of life threatening medical conditions with the prior consent of the donor, parents or surrogate.

Section 61 of the proposed Bill is testament to the fact that, despite various technological advancements from which one may draw conclusive proof as to the legitimacy of the child, abundant caution is exercised in revealing any information regarding the paternity and it is still presumed that the child is born within the confines of marriage.

SURROGACY REGULATIONS BILL

The Surrogacy Regulations Bill was introduced in the Lok Sabha as Bill 156 of 2019, in pursuance to the 228^th Law Commission Report on Surrogacy. The Bill proposed to abolish commercial surrogacy and regulate the process of altruistic ethical surrogacy.

The Bill is silent on the question as to whether the surrogacy procedure shall be gestational or traditional. In gestational surrogacy, the surrogate merely acts as a host for the child to grow in her uterus, and the surrogate does not provide her egg for the process. Whereas in traditional surrogacy, the surrogate mother's own egg is utilised for the process. Therefore, the question as to whether the intending father can donate his sperm for the "assisted reproductive process" is still unanswered.

PRESUMPTION OF PATERNITY

The presumption of legitimacy of child conceived through the surrogacy process is enshrined in Section 7 of the Proposed Bill. According to section 7, any child conceived out of the surrogacy procedure shall be deemed to be the biological child of the intending parents. A wider scope is given to a child conceived through surrogacy, under the Surrogacy Regulations Bill, in comparison to the ART Bill, 2014.

The Rajya Sabha, through its reference to the Select Committee, has also given various suggestions for amendment of the bill, where suggestion to enable couples living outside the confines of marriage to avail surrogacy procedures.

THE DNA TECHNOLOGY (USE AND APPLICATION) REGULATION BILL, 2019.

The DNA Technology (Use and Application) Regulation Bill, has been introduced to avail DNA technology "for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons".

SECTION 112 AND THE DNA TECHNOLOGY BILL

Section 34 of the DNA Technology Bill states that any information relating to DNA profiles, DNA samples and records which are maintained in a DNA data bank shall be made available for judicial proceedings, in accordance with the rules of admissibility of evidence and with relation to the investigation relating to civil disputes as specified in the schedule to the bill.

It can be safely inferred from the language in "judicial proceedings, in accordance with the rules of admissibility of evidence", that the DNA information shall be made available to the concerned parties, only as per Section 112 of the Indian Evidence Act, i.e., if non-access as mandated by the provision is sufficiently proved by the aggrieved party.

The said Bill contains a Schedule which has been further classified into 4 parts, regarding the "List of matters for DNA filing". Part C of the schedule, states that "DNA identification technology" may be availed even in civil disputes and other civil matters which includes Parental disputes, both maternity or paternity, under sub classification (i) and includes issues relating to assisted reproductive technologies including surrogacy and in vitro fertilization under sub classification (iii).

Hence, it is clear that the Legislature does not want to preclude the parties from availing the DNA profiling technology services that are provided. The legislature merely intends to strike a harmonious balance between Section 112 of the Indian Evidence Act, to protect the sanctity of marriage; and at the same time, provide opportunity to the parties to disprove paternity through conclusive scientific methods, provided the preliminary question of non-access is sufficiently answered by the party aggrieved. The fundamental right against self-incrimination as laid down under Article 20(3) of the Constitution also should be given due regard.

HINDUISM AND ASSISTED REPRODUCTIVE TECHNOLOGY

It is not out of place to mention that Hindu mythology speaks of various instances where such unconventional methods of begetting a child were mentioned and paternity was still accorded to the legally wedded spouse. For example, paternity was accorded to King Vichitravirya for the birth of Dhrithrashtra, Pandu and Vidura, who were conceived through Kulaguru Veda Vyas (who was part of the Kuru Dynasty) in the Mahabharath. Interestingly, this myth is comparable to the Surrogacy Regulation Bill, 2019, where the Bill requires that the surrogate mother shall be a "close relative" of the intending couple. Hence, India is not entirely alien to the concept of unconventional methods of childbirth.

THE DISTINCTION BETWEEN GAUTAM KUNDU V. STATE OF WEST BENGAL AND NANDLAL WASUDEO BADWAIK V. LATA NANDLAL BADWAIK

The constitutionality of Section 112 was upheld and reiterated by the Hon'ble Supreme Court in the landmark judgement of Gautam Kundu v. State of West Bengal. ^[5] In the later decision of the Apex Court in Nandlal Wasudeo Badawaik v. Lata andlal Badwaik,^[6] the Hon'ble Supreme Court, allowed for the DNA profiling to be conducted in order to determine paternity of the child. Question arose as to whether the recent decision superseded the previous decision of the Hon'ble Supreme Court in the Gautam Kundu dictum.

On a perusal of the two judgements, it can be seen that there is a major ground of factual difference between the judgements. In the Gautam Kundu dictum, the order of DNA was not passed and the same was challenged, and there was no proof of non-access submitted to rebut the presumption made under Section 112 of the Indian Evidence Act, 1872. Whereas in the Nandlal dictum, the DNA request was allowed by the Court and the concerned party had not objected to the same. Objection was raised only when the DNA results were contrary to the party's interest.

Hence, the Supreme Court made a conscious departure from the law laid in Gautam Kundu v. State of West Bengal as extracted hereunder:

"Fact of the matter is that this Court not only once, but twice gave directions for DNA test. The Respondents, in fact, had not opposed the prayer of DNA test when such a prayer was being considered. It is only after the reports of the DNA test had been received, which was adverse to the Respondents, that they are challenging it on the ground that such a test ought not to have been directed. We cannot go into the validity of the orders passed by a coordinate Bench of this Court at this stage. It has attained finality. Hence, we do not find any merit in the submission of the learned Counsel for the Respondents. As regards the decision of this Court in the cases of Goutam Kundu (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra), the same have no bearing in the facts and circumstances of the case. In all these cases, the court was considering as to whether facts of those cases justify passing of an order for DNA test. When the order for DNA test has already been passed, at this stage, we are not concerned with this issue and we have to proceed on an assumption that a valid direction for DNA test was given."

When conclusive proof regarding the paternity has already been drawn with the consent of the parties concerned, the need to presume under Section 112 of the Indian Evidence Act, 1872 does not arise. The Hon'ble Supreme Court made a distinction from Gautam Kundu v. State of West Bengal, in Dipanwita Roy v. Ronobroto Roy^[7] on a similar ground that the parties had opposed to the DNA test only after the results were obtained.

Though it has been held that paternity test during the initial stages of a child's life, is against the basic fundamental rights of the individual child under Article 21 of the Constitution,^[8] it has also been categorically established that the a DNA test does not affect the fundamental right of a person under Article 21 of the Constitution^[9] in all circumstances, and there arises a need to harmonise between Section 112 of the Indian Evidence Act and Article 20(3) of the Constitution as held in Selvi v. State of Karnataka. ^[10]

PATERNITY AND LEGITIMACY

The Hon'ble Supreme Court in its landmark judgement in Narayan Dutt Tiwari v. Rohit Shekhar^[11], allowed the petition filed by a son seeking to declare him the natural born son of the man he claimed to be his father. The DNA test was allowed on the ground that every child has the right to learn about the truth of his/her origin and to ensure that the father does not shirk parenthood and bastardise the child.

The Hon'ble Court made a clear distinction between "legitimacy" and "paternity" and held that Section 112 of the Indian Evidence only intends to safeguard the legitimacy of the child and not its paternity. It is thus understood that the essential principle governing Section 112 of the Indian Evidence Act, is "pater est quem nuptiae demonstrant"^[12]. Therefore, though it can be argued that the availability of scientific technology, that can very well confirm paternity, diminishes the need for such presumption in the first place, the person aggrieved still has to satisfy the test of "eminent need" to avail such scientific methods.^[13]

PRACTICAL DIFFICULTIES IN COMMISSIONING DNA TESTS

The fact that the principle governing the presumption of legitimacy continues to be the same from the Act of 1872 to the recent Bills introduced in 2019, is testament to the intention of the legislature and its travaux preparatoires, that the scientific advancements in DNA profiling, though will be applicable to civil matrimonial disputes, shall be harmoniously in consonance with the provisions under Section 112 of the Indian Evidence Act, 1872 and the aggrieved party can assail such presumption only by proving non access.

The DNA Regulation Bill is still pending before the Parliament and is not an Act yet. The Assisted Reproductive Technology Bill and the Surrogacy Regulations Bill are yet to be tabled and passed by the Parliament, interestingly the two bills being completely different, one regulating commercial surrogacy and the other banning it!

Furthermore, assuming that Section 112 is removed or amended owing to the various DNA profiling techniques to conclude paternity, the same would open a pandora of litigations and every husband who has no intention of paying maintenance to his wife and child, would take up the defence of paternity and the same would dilute the objective of the Acts due to the likelihood of multiplicity of suits and venomous litigations.^[14] In the absence of Section 112, the entire burden of ensuring that the DNA tests are not conducted as an empty routine^[15] shall fall squarely upon the courts to accordingly determine the same.

The orders in the aforementioned judgements where the courts have unequivocally accepted the results of the DNA tests conducted and held them to be sufficient and conclusive proof without any dispute, is indicative of the growing acceptance towards DNA testing methods, and that the preliminary presumption made under Section 112, does not affect the implementation of DNA profiling in any manner. On the contrary, Section 112 establishes a healthy checks and balances system while determining the question of legitimacy and paternity.

CONCLUSION

While it is true that constitutional morality will supersede culture of tradition,^[16] Section 112 of the Indian Evidence Act, is only a preliminary rebuttable presumption made in order to retain the legitimate status of children born in wedlock.^[17] The provision is very well adaptable to the present-day scenario as the welfare of the child is still of paramount importance. It is oft told that "parents construct the child biologically, but the child constructs the parents socially"^[18]. Family is the fulcrum of society, and with changing times, the society has begun to accept non -traditional methods of childbirth. The legislation is also a reflection of these changing times. The term "commissioning couple" used in the Assisted Reproductive Technology Bill, 2008, being altered as "intending couples" in the Surrogacy Regulations Bill, 2019, is indication of the same.

I emphasise that Section 112 cannot be dismissed as archaic or not applicable to the technologically equipped nation. Per contra, it should harmoniously be read along with the various enactments that are sought to be introduced by the Parliament seeking to regulate the various scientific advancements in the field of DNA profiling and surrogacy.

The provisions of Section 112 of the Indian Evidence Act when read in consonance with the concept of DNA profiling and the recent surrogacy bills leave us with a simple unanswered question – "we can, but should we?".