Calcutta High Court Declines Swiss Citizen's Plea Against Adoption Agency Which Failed To Preserve His Adoption Records From 1988

The Calcutta High Court has dismissed a writ petition by a Swiss citizen, who was adopted in the year 1988, against the Specialised Adoption Agency through which he was given for adoption. 

Petitioner argued that after coming of age, he began a 'search for his roots' and wanted to retrace his pre-adoptive links, but due to the failure of the respondent authorities to preserve its records 

In dismissing his plea upon holding that the petitioner did not have any penal action or claim for damages against the respondent authorities, a single bench of Justice Sabyasachi Bhattacharya held:

In the absence of any strict legal obligation on the adoption agency to retain such surrender deed, particularly for so long, no penal action or direction can be passed against the respondent no. 5 with regard to the admitted absence of the document with it. Hence, the petitioner does not have a remedy either in damages or in penal action against the Specialised Adoption Agency insofar as the non-preservation of the surrender deed is concerned. Hence, the remedy sought in the present writ petition cannot be granted, particularly in view of the delay of almost two decades by the petitioner to come up with the present search after attaining majority.

It was argued the respondent authorities were under a bounden duty to preserve the records of the petitioner's adoption and that this was in contravention to the orders of the Apex Court which had directed Adoption agencies to maintain records of adoption. 

It was submitted that there was a blame game going on between the adoption agency and the scrutinizing agency with regard to who had custody of the petitioner's adoption scrutiny report and relinquishment deed, making the petitioner doubt the validity of his adoption. 

Regarding the right of the petitioner to know the identity of his biological parents, it was argued that there was no relinquishment deed submitted by the authorities which indicated the wish of the biological mother to conceal her identity and that under the Adoption Regulations, 2022, there was no bar on the child wishing to identify his biological parents. 

In relying on Apex Court judgements, it was argued that although the courts had restricted the right of biological parents to know the whereabouts of the adopted children, the child's right to know the identity of the biological parents had been widely accepted.

Counsel relied on various international statutes such as the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption of 1993 and the United Nations Convention on the Rights of Child, 1989, to substantiate their submissions. 

It was thus prayed by the petitioner that a direction be issued upon the respondent authorities to furnish all relevant documents to facilitate the petitioner's right to conduct a 'root search' and if such documents were not found, then the petitioner be allowed to initiate a police investigation against the adoptive agency along with a prayer for compensation. 

Counsel for the respondent adoption agency argued that they cooperated with the petitioner stating that all relevant documents were handed over to the adoptive parents, and they had no access to the same. 

It was argued that the respondent had extended all support to the petitioner by informing him to look for documents at the Alipore court where the adoption order was passed. 

It was argued that the unmarried mother of the petitioner had relinquished all claims and handed him over to the respondent for care and protection and that the names of the biological parents were to be kept confidential. 

It was argued that since at the time of adoption of the petitioner, in 1988, there was no comprehensive law governing adoption, the petitioner cannot claim a right to access his adoption papers. 

It was further argued that the term "root search" had only been codified in the Adoption Regulations, 2017, promulgated under the Juvenile Justice (Care and Protection of Child) Act, 2015.

The present attempt to facilitate root search is unreasonable and injurious to the right of the said unmarried woman who is not even a party to the proceeding, it was argued.   

Counsel for the District Judge, Alipore, contended that all documents of adoption were handed over to the scrutinising agency, which observed that the unmarried mother had relinquished all claims over the child.

In hearing the parties, the Court framed multiple issues regarding the petitioner's right to know his biological roots, whether such a right prevailed over the privacy of the biological mother, and whether the respondents were under any obligation to preserve the records of the petitioner's adoption. 

It was found that the plea for root search had been filed 35 years after the petitioner's adoption and that the laws governing root search had drastically changed in the years since. 

It was held that the modalities for root search enshrined in the 2022 regulations point towards confidentiality around biological parents, especially unwed mothers to be of more importance than the right of a child to conduct a root search. 

Subjecting the said mother to potential social ignominy and ostracization might hit at the very root of her survival and may even lead her to take an extreme measure. 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, it held. 

The Court placed emphasis on the right to privacy and confidentiality of the unwed biological mother and held that it must be given primacy over the right of the adoptee, which in did case would not detrimentally affect his survival since he was otherwise well sheltered and protected by his Swiss adoptive parents. 

Hence, seen from every perspective, although the petitioner has a legal and constitutional right to search out the particulars of his biological parents, the right of privacy of his mother prevails over the petitioner's said right, the Court held. 

Regarding the agency's responsibility to preserve the records, the Court held that the duty of the agency was to come up with a report to assist the court in deciding the course of adoption and the petitioner who could have exercised his right to root search after attaining majority, only chose to do so after attaining 35 years of age. 

It was held that all the authorities had handed over the documents available with them and that in the absence of any strict legal obligation to retain the petitioner's relinquishment deed, no cause of action against them would be maintainable. 

Accordingly, the plea was dismissed.

Citation: 2023 LiveLaw (Cal) 10

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

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