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Key Takeaways

  • A couple instituted a petition before the Kerala High Court for the restoration of their child to them.
  • The mother had given up the child for adoption when she could not contact her partner.
  • The Court held the proceedings of the committee were invalid as they treated the mother as unwed but the child was born out of a live-in relationship which can be considered as marriage.
  • The legal systems all over the world have no specific legislation for single mothers who suffer because of non-acceptance in the society or single parents as such.
  • The need for legislations for protecting and assisting the single mothers and their children is very high.

Introduction

A writ petition was instituted by a couple for restoration of their baby girl. A Hindu woman and a Christian man whose names have not been revealed to protect their identity met during the Kerala Floods of 2018. They became closer during the period of their work with the NGOs and decided to live together. The woman gave birth to a baby girl in the year 2020.

The woman failed to contact the man when they drifted apart which led the woman to give up the child for adoption. She executed a Deed of Surrender before the committee, who considering the woman as an unwed mother decided to give the child to a childless couple.

The couple approached the Committee claiming the restoration of their baby girl when the couple reunited. The Committee denied the request of the couple which led to the couple filing a Writ of Habeas Corpus before the Hon’ble High Court of Kerala.

Problems Faced by the Mother

The foremost issue that a single mother faces is balancing the responsibilities. She has to look after the welfare of her child and also manage the household all alone. The feeding of her child, education, implementing good values, guiding the child and then also working to maintain stability are all to be done by her. She also has to maintain financial stability to give her and her child a good future.

She is targeted by the society also she gets unwanted preying eyes on her, proposals for marriage and also the social pressure regarding her image. Also it is very hard to find a babysitter who would be reliable and cooperative with the child’s needs.

With all the issues it is hard to manage her life alone, she also has to maintain the legality required for keeping the baby with her. This leaves her with very less time for her to spend with her baby.

Looking into the Indian scenario of single moms it is prevalent that the society considers a single woman to be unlucky and also with the superstitions imbedded in the minds of the people, it becomes very difficult for the mother who has to listen to the taunts of the people and also go through the hardships of maintaining balance in her daily life.

Observations of the Court

The Court upon proper perusal of the facts found that the mother was forced to give up the child for adoption when she could not reach the father of the child. The non-acceptance of the society towards single mothers drove the mother to desperation.

The legal provision for adoption of a child in case the child is surrendered is that the adoption deed is to be signed by both the parents. When the child is put for adoption by one parent, the parent being the mother and the location of the father is unknown, the child is considered to be abandoned. The right of restoration of the child lies with the parents first. The Court stated that the status of a couple in live-in a relationship will be the same as a married couple, so, the parents can initiate action for restoration of the child.

The Court also observed that the Committee while putting the child for adoption followed the procedure for unwed mother where as in this case it should have been treated as a child born to a married couple and the location of the father should have been investigated into. So the proceedings of the adoption were to be held invalid. The Court ordered the restoration of the child to her parents.

Legislations for Single Mothers

The Indian Legislators have drafted laws that pertain to the rights and protection of single parents and also single surrogate mothers. As mentioned in the case of Hema Vijay Menon v. State of Maharashtra, Article 21 of the Indian Constitution also includes the ‘right to motherhood’ and the sole right to the reproductive rights lies with the woman as a part of her fundamental right.

The Supreme Court of India has also laid down a precedent in the case of ABC v. State (NCT of Delhi). A woman was allowed to have the sole and exclusive guardianship of the child as the woman was not married and allowed non-disclosure of father’s name on the birth certificate of the child.

Surrogacy and Single Parents

The surrogacy laws in India provide the opportunity to married couple to go for surrogacy but the same is not provided to single parents which include divorced individuals, unmarried individuals or widowed individuals under the ambit of Surrogacy (Regulation) Bill, 2016. The differentiation between the opportunities of opting for surrogacy being not given to single individuals is violative of Article 14.

1. Assisted Reproductive Technology Guidelines, 1982: These guidelines were the very first rules that ensured that any single woman wishing to have a child is not denied of getting such services.

2. The 228th Law Commission’s Report: This report intended to protect the interests of the child and required the commissioning parent to be a biological parent to the child by donating for the surrogacy.

Single Mothers in the World

Children born from single mothers and the mothers are marginalized in the Middle East and North Africa Region, including in Morocco. They are not legally recognized which does not give them any fundamental rights and unwed mothers are prosecuted for having sexual relations outside of marriage. Sexual relation outside of marriage is considered illegal in the country and can be punishable criminally. Abortion is criminalized under the Moroccan Penal Code irrespective of pregnancy being resulted from illicit relations or rape. Under the Family Code, the affiliation to the father is recognized when he is married to the mother at the time of conception. There is not concept of ‘Illegitimate’ or ‘natural’ father, so a child cannot have any rights from the biological father if the father and mother were not married. It was only after the 2002 reforms that a single other could register the name of the child at the Civil Status Office.

Japan has the highest number of single mothers in labour force but the state provides no financial support to those women. Women mostly work in low paying jobs or part-time jobs which give them little money for their household expenses. The child is the sole responsibility of the mother which makes it very difficult for them to work and give a normal life to her child.

In the European Union there are no specific laws for single parents but there are policies for single parents focusing on child support and custody law. When the parents of the child do not reside together, the parent who does not reside with the child has to pay money for expenses of the child. In most cases, it is the father that who traditionally pays the money. The payments in most countries are to be determined by the parents, the court and public agencies in some countries.

The 2016 case of Re Z while deciding a case on surrogacy laws held that discriminating against single parents is not compatible with the Human rights Act. The U.K. law gave equal rights to the single parents as to the couples.

Conclusion

The countries all over the world have been developing technologically and also legally. The justice system is being empowered to ensure that no aspect of human life is left out. When it comes to single mothers, not only the society has a downward look upon but also the legal system. There are no specific provisions to provide assistance to them or even for providing protection.

If we look into Morocco, it is surprising how the mother is punished for giving birth to a child out of wedlock. The lack of provisions in the countries makes it very difficult for the mothers to support their child when they do not have any legal backing for them.

It is high time that the legislatures take into consideration the cries of single mothers who are struggling for giving a life to their children. The United Nations Organisation which works for the benefit of the people globally also needs to develop guidelines or provisions that would be binding on all member states so that even if not societal, but at least legal protection is given to the single mothers.


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