Remember those stamps from the 1960s and 70s commemorating/ promoting the message of India’s family planning program? A man and a woman flanked by two children, a boy and a girl? That was and continues to be the state’s imagination of the ideal family. In those stamps, given their immediate context, we were constrained to think of the children to be biologically connected to the adults. But reading those images today without any reference to state led family planning programs would give way to endless possibilities. May be the boy is adopted. May be both children are adopted. May be the girl was conceived by combining the gametes of the two parents in a lab and then implanted in the womb of another woman in exchange for money, or for free. May be the parents are divorced, the children stay with the mother (or father), and picture was taken (or drawn), when the other parent visited over the weekend as per their custody agreement.
Today each of the above possibilities are governed by a maze of legislative, administrative and judicial rules and regulatory frameworks, involving both state and non-state actors. While every aspect of family life is undergoing transformation, it is the parent-child relationship that has been the subject of intense rule-making in recent times. Thus, in the last couple of years, we have seen new legal provisions (adoption); draft Bills (surrogacy); Law Commission recommendations (surrogacy, guardianship, child custody); rules made by specialised agencies (surrogacy, adoption); novel judicial interpretation of existing laws (guardianship, adoption); and judicial experimentation with rule frameworks to arrive at just and efficient resolution of problems (surrogacy, child custody) – all concerning the parent-child relationship.
The profusion of regulatory experiments in this area is reflected in the law curriculum too. When I went to law school more than ten years ago, issues of parenthood used to be taught under two heads in family law: guardianship and adoption. By the time I started teaching family law, surrogacy and child custody had acquired a firm position in the syllabus, not just as additional topics, but as issues that raised questions beyond the traditional framework of parental rights over and obligations towards children. Sample this: in a custody dispute, can time spent with the child be divided between the divorcing parents in the same way, as one with do with jointly owned property?
In what follows, I will map some of these legal developments and in the process, make three broad points. First, if there is one area in contemporary Indian family law that is constantly evolving, it is the law governing parent-child relationship. Second, this evolution has an in-built limitation in that the legal developments continue to privilege the heterosexual marriage. And third, although the changes are gender neutral or women friendly in appearance, women’s interests are poorly protected in each of these developments.
So what does parenthood entail in the eyes of the law? How relevant is the genetic connection between parent and child for the determination of parental rights? In a 2015 judgment, the Supreme Court held that mere genetic contribution by a man does not confer him guardianship of the child, if he has been uninvolved with the child’s upbringing. An “unwed” Christian woman had approached the Court asking that she be declared guardian of the child without her having to inform or involve the father in the legal process. Lower courts declined, but the Supreme Court held that since the mother had been looking after the child by herself, recognising her maternity would obviate the necessity of determining paternity. In situations such this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus.
This is not entirely a novel formulation. In 1999, the Supreme Court had held in the Githa Hariharan judgment that a Hindu mother can be deemed “natural guardian” of the child if the father is unavailable or unwilling to assume that responsibility. In the 2015 judgment, the Court extended the same idea to Christian personal law. Note, that under Hindu law, the mother is still not a natural guardian by default, but could be deemed so only if the father was not around. In 2015, the Law Commission for the second time (the first time was in 1989) recommended to the government that the sex discrimination in Hindu guardianship law be removed.
The issue of genetic contribution and what it means for the legal recognition of parenthood, has come up in the context of surrogacy as well. An important element of a surrogacy arrangement is the contract that a surrogate enters into with the commissioning parents, promising not to claim parental rights over the child. In a 2008 case, the Gujarat High Court held, that it is the surrogate, who must be deemed the natural mother, for she has nurtured the embryo and has blood ties with the baby. The Supreme Court stayed the verdict, for enforcing it would have meant dishonoring a valid contract between the surrogate and the commissioning parents. Other High Courts have decided differently.
The Madras, Kerala and Delhi High Courts held in later years, that irrespective of the nature of surrogacy (gestational or traditional), the commissioning mother is the “legal mother”. Referring to the surrogate mother, the Madras High Court noted in 2013, “the bearer of the seed is a mere vessel”. These three High Courts and recently the Chhattisgarh High Court too, have held that the commissioning mother is entitled to maternity benefits from her employer. While this suggests the “mainstreaming” of surrogacy as a mode of parenthood, it also points towards the passivity accorded to the surrogate in the entire process.
In contrast to the spectacular, headline-making surrogacy disputes, the mundane world of divorcing parents fighting over custody of children is another area in contemporary family law, where some innovation is noticeable. Traditionally, Indian courts have decided child custody disputes between divorcing parents in a competitive framework, where the one who proved himself/herself to be the better parent won, while the other lost. The loser parent is then granted the right to visit the child/children at specified times and places.
Through a movement led by both litigants and courts, this framework is gradually being replaced in favour of one where the courts are granting custody to both parents. These decisions are not based on gendered notions of parenthood, like fathers are naturally fit to be legal guardians or mothers are naturally better suited for caring of children, but allow parents to assume legal statuses irrespective of gender.
In one of the first such High Court decisions, in a 2013 case, the Karnataka High Court held that both parents were entitled to get custody of their 12 year old son for his “sustainable growth”. The Court decided that the child would stay with the father for the first six months of the year and with the mother for the next six; both parents were to split the expenditures of the child; and that either parent would have access to the child through personal visits on weekends, phone calls and video conferencing, when the child was with the other parent. The idea of equal parental responsibility or involvement that underlies the idea of joint custody, should not however mean equal division of time between parents with mathematical precision. It is debatable whether a change of setting every six months and the associated disruption could really be in the best interest of a 12 year old.
A more thoughtful approach can be seen in a 2016 Bombay High Court judgment. The divorcing parents had come up with an interim arrangement whereby the minor son used to be with the mother on weekdays, and with the father over the weekend. Additionally, the father was responsible for dropping and picking up the son from school, coaching classes and therapy sessions (the child was a slow learner).
While the divorce itself was highly confrontational, the bitterness did not affect the smooth working of this arrangement even during the litigation. There was evidence that the mother was short-tempered and was negligent towards the child – factors that went against her claim to full custody. The judges however did not want to completely divest the mother of custody. Instead, they awarded joint custody, but reversed the existing arrangement such that now the father had custody on school days, the mother over the weekends, and each with equal number of days during school vacations. There was adjudication of competing claims, and yet the judicial solution retained some continuity with the pre-existing arrangement that the parties themselves had created.
The idea of joint custody is based on the beliefs that (a) the involvement of both parents is essential for the successful development of a child and (b) that both parents must have equal opportunities to be involved in their children’s lives even after the marriage has ended. The second idea draws its justification from the first. But it also has a standing of its own. The language of equality, equal access, equal responsibility and so on has an inherent moral appeal.
This discourse of equality however can also be a trap for the weaker party in the marriage. A joint custody arrangement becomes possible either when the parents have an amicable divorce, or, in the case of a contested divorce, as the Bombay case showed, if the divorcing parents are willing to cooperate and compromise with each other for the sake of the children. But in certain cases, a spouse should not have to cooperate with the other, even for the sake of children. If joint custody is posed as the most desirable option by the legal system, it is possible that parties in starkly unequal marriages and in unequal bargaining positions will be forced to negotiate with each other.
A woman might settle for a lower amount of maintenance, in return of the assurance that the husband will not seek joint custody of the child (with whom he did not share much attachment anyway). Thus, while it is a positive development that this emerging practice is not based on gendered assumptions about parenthood, we might just find that in a number of cases, gender matters in how a parent experiences the idea of joint custody and what it means to him/her in the context of his/her larger divorce dispute.
Let us go back to the “alternative” modes of parenthood: surrogacy and adoption. After regulating the surrogacy market for decades with the help of guidelines made by different specialised agencies and ministries, the government finally introduced the Surrogacy (Regulation) Bill in the Lok Sabha in November 2016. The Bill provides for a complete ban on commercial surrogacy. It only allows altruistic surrogacy (out of goodwill, involving no monetary exchange), that too only for Indian couples who have been married for a minimum of five years, and who have been medically certified as unfit to produce children. For such couples, only a married, close-relative, who has at least one healthy biological child, can act as a surrogate. Further, homosexual and single men and women, and live-in couples are explicitly barred for availing of surrogacy.
There is every reason to oppose surrogacy. Commercial surrogacy in India is an industry that thrives on the social stigma around “infertility”, people’s primitive and retrograde desire to have their “own” children (own blood, own caste and so on), and most importantly, the exploitation of the surrogate’s labour. The government has justified the ban on commercial surrogacy in the name of protecting women from exploitation. However, the proposed regulatory regime is more likely to harm the interests of women – not just the poor vulnerable ones in whose name it is being justified, but all women. As several researchers of the surrogacy market have argued, the ban, rather than eliminating the demand for surrogacy, would drive the market underground, which would make it more difficult to protect the rights of the surrogates. At the same time, by allowing altruistic surrogacy, the law would ensure that women in the family offer (or, are forced to offer) their reproductive labour to childless relatives for free.
So if the proposed ban on surrogacy is not going to be in the interest of women, who is it going to benefit? By making surrogacy difficult to access, is the government trying to incentivise the other option, i.e. adoption? That does not seem to be the case either, owing to two new restrictions in this area. Adoption is unevenly available under the personal laws: Hindu law allows adoption by both couples and single people, with the restriction that if a person already has a child, he/she cannot adopt another child of the same sex. Muslim, Christian and Parsi laws do not recognise adoption. But in 2014, the Supreme Court held that though Muslim law did not recognise adoption, Muslims could adopt under the secular law, the Juvenile Justice Act.
Indeed, the JJ Act contained the most liberal framework of adoption that was available to persons irrespective of religious affiliations, and without the Hindu law type restriction on the sex of the child based on a concern for “family balancing”. But in December 2015, the JJ Act was amended to provide that a single male could not adopt a girl child. Presumably, the move was based on the fear of sexual abuse of female children by adoptive fathers. It is inexplicable as to why this concern should be used to selectively restrict single men’s access to children in adoption law, when the criminal law prohibiting sexual abuse of children acknowledges that abuse can be perpetrated by both men and women. Also, what about the possibility of sexual abuse of male children by single fathers? Further, adoption of female children by married couples only, does not rule out possibilities of abuse, since every study on the subject points out that children are as vulnerable to sexual abuse within the family as they are outside. Clearly, sexual paranoia obliterates reason.
The second development has taken place in labour law, but pertains to parenthood. The new amendments to the Maternity Benefits Act that came into effect earlier this year, provides, among other things, that an adoptive mother is entitled to twelve weeks of maternity leave if the child adopted is younger than three months. There is a two-fold discrimination, first between adoptive and biological mothers, and second, between adopted and biological children. What is the basis for providing twenty-six weeks of maternity leave to biological mothers, but only twelve weeks to adoptive mothers, when all young children need care and attention, irrespective of how they come into the family? Further, what is the three-month criterion based on? There seems to be a presumption that adopted children older than three months do not need parental care and supervision, but biological ones do. And of course, going beyond the specific amendments, the foundational basis of the Act itself is problematic since it continues to imagine the female worker alone as the primary caregiver of children (thereby justifying “maternity” benefits) and the male worker as the primary breadwinner in the family.
Since I began this piece with images of the family, let me end it with another one that we saw recently in the Vicks advertisement featuring a transgender mother and her adopted daughter. That example of a parent-child relationship currently has an ambiguous location in the legal framework that I have described above. I am not sure how long it will take for such relationships to make it to the “official” representations of the Indian family, or if that should be considered emancipatory, but I will probably include it in my family law syllabus, the next semester.
Saptarshi Mandal is an Assistant Professor at the Jindal Global Law School, Sonipat.