INTRODUCTION
Legal Recognition of non-biological parents has evolved significantly from time to time. In this blog, I tried to explore the legal advancements and challenges related to recognizing the rights of non-biological parents, which includes those who are in same-sex relationships, surrogacy arrangements, and blended families.
HISTORICAL BACKGROUND
- Traditional Perspectives:
Traditionally, it was expected to form families by having children through biological means. Social legitimacy was given to families that were formed out of heterosexual, procreative, and monogamous marriage. Non-biological parents, whether they had adopted a child or through surrogacy were not given much legitimacy as given to the biological parents 1.
- Early Reforms:
In the initial stages of recognizing non-biological parents, the paramount importance was given to guardianship and adoption. In India, various acts were passed such as the Guardianship Act, 1956. The sole objective of these laws is the welfare of children. Therefore, it can be considered that initially, guardians and those couples who adopted a child were recognized.
But the question is whether non-biological parents were also recognized. To get the answer to this question you have to delve deep into blog 2.
LEGAL ADVANCES
- Surrogacy and Assisted Reproductive Technology:
Surrogacy can be defined as a process in which a woman (the surrogate) gives birth to a child on behalf of a couple (intended parents).In India, surrogacy is legal. Many acts have been passed by the parliament regarding surrogacy such as:
- The Assisted Reproductive Technology Act, 2021
This act regulates the work of Assisted Reproduction Technology(ART) clinics that are established to provide surrogacy treatments in India. ART is a boon for those intended parents who want a child but are unable to conceive due to physical, psychological, or medical reasons.
Benefits of ART can be taken not only by married couples having Indian citizenship but by live-in partners, single women, and foreigners also.
- The Surrogacy (Regulation) Act, 2021
According to this act, surrogacy can be accessed by married couples and ever-married single women. Couples in live-in relationships, unmarried men, and same-sex couples are excluded from conceiving a baby through surrogacy. People of the LGBTQ+ community are also excluded. However, it is against the law of equality in India, and every citizen of India has this fundamental right as given in the Indian Constitution.
The first case of surrogacy in front of the Supreme Court of India was: –
Baby Manji Yamada v. Union of India (2008)
It was after this case the Supreme Court felt the need for regulated law for surrogacy 3.
- Same-sex Parenting:
“Children need parents, irrespective of their gender”.
In India, same-sex couples are not allowed to have a child through any means. It is a way towards discrimination. In Indian Society, same-sex parenting is taboo due to which the LGBTQ+ community has to face a lot of challenges. According to The Ministry of Health and Family Welfare, around 2.5 million people belong to the LGBTQ+ community. Despite its huge population, this community always remains a victim of discrimination.
There are different scenarios regarding discrimination against same-sex couples in both urban and rural India. Gradually, awareness has been spread among the people about the LGBTQ+ community through social media, print media, campaigns, etc. At first, we all are human beings, we should accept them too 4. Our youth is more open-minded according to a survey, 29 out of 195 countries have legalized same-sex marriages. India should walk on the path adopted by those
countries so that homosexual couples can also enjoy the rights that are given by the Constitution of India.
- Blended Families:
Let’s first understand the meaning of blended families. They are also known as stepfamilies. They are families in which one or both partners have children from previous relationships. The legal definition of family was extended to blended families after the judgment delivered by the Supreme Court of India on 16th August 2022. It is only after this judgment, that atypical or blended families get legal protection and benefits as the same as given to traditional families. To achieve equality, discrimination must be eradicated from the society. Blended families should get advantages and schemes of social welfare as given to traditional families 5.
LEGAL CHALLENGES AND CONTROVERSIES
- Parental Rights Disputes
In the modern era, the LGBTQ+ community gets the right to marriage but no law recognizes the LGBTQ+ community’s parental rights in custody disputes. It can be due to a lack of federation. Not only the LGBTQ+ community, but also other non-biological parents such as stepparents, and surrogates, have to face challenges regarding child custody and visitation rights. This is a major issue that arises due to weak legal frameworks, biased decisions, and social attitudes. Non-biological parents have to encounter many challenges in protecting their legal rights of visitation and custody. Recognition of both parents in same-sex marriage is crucial so that they can also have access to benefits, custody, and decision-making power. In blended families where one parent is biologically related to the child, the other parent often needs to seek a second-parent adoption to legally establish parentage. This step is crucial for ensuring that both parents have legal rights and responsibilities that are recognized. To tackle this problem, there is a need to change societal attitudes and ensure proper advocacy and legal reforms so that non-biological parents have the same rights and opportunities as biological parents 6.
- Impact of Legal Uncertainty
Without clear legal recognition, there is a heart-wrenching impact on non-biological parents and their children. It can create emotional stress in families. Due to the lack of legal recognition, children are deprived of the love, care, and support of their families. A child has to face social stigma throughout his life which affects his/her academics.
COMPARATIVE ANALYSIS
- International Perspectives:
In the USA, laws have been passed that legalize same-sex marriages. Non- biological parents have the same rights that are given to biological parents. Non-biological parents have the same rights that are given to the biological parents. Non- traditional parentage concept developed over time. In 1960, the concept of no-fault divorce was introduced which opened the doors to single mothers or divorced parents to form new families. Parental rights were also provided to stepparents. Legal rights for non-biological parents in same-sex relationships were given first in the year 1990s.
Haltzman v Knott was the first case in the US in which a lesbian was recognized as a “de facto parent” of a child conceived and delivered by her partner in the course of their relationship.
The other case was Johnson v Calvert. In this case, a couple implanted their fertilized egg into a surrogate, who then claimed to be the mother after the child was born. Therefore, the concept of parenthood was shifted to non-biological parents also 7.
Likewise, USA, in countries such as Austria, Belgium, Denmark, Ireland, Malta, Netherlands, Norway, Portugal, Spain, and the UK, non-biological parents are legally recognized 8.
RECENT DEVELOPMENTS IN INDIA
In India, many laws have been passed such as the Hindu Adoptions and Maintenance Act. Any child adopted under this act legally transfers the rights of parenthood from the biological parents of a child to the adoptive parents. The adopted child becomes the legal heir of the adoptive parents 9.
The Juvenile Justice Act also allows for the adoption of all religions. This act ensures that the adopted child also has the same privileges and rights that are given to biological children.
Surrogacy is also legal in India under Surrogacy (Regulation) Act, 2021 which outlines rules for surrogacy agreements.
CONCLUSION
In conclusion, the concept of legal recognition for non-biological parents is dynamic and evolves from time to time. As our youth is getting open-minded, this concept takes a new form in modern times. Legal recognition of non-biological parents is important to ensure the overall welfare of children. With proper advocacy, implementation of legal reforms, and eradication of societal taboos from society, one can achieve the target of giving legal recognition to non-biological parents.
Author(s) Name: Navjot Kaur (Chandigarh Law College, Jhanjeri, Mohali, Punjab)
INTRODUCTION
Legal Recognition of non-biological parents has evolved significantly from time to time. In this blog, I tried to explore the legal advancements and challenges related to recognizing the rights of non-biological parents, which includes those who are in same-sex relationships, surrogacy arrangements, and blended families.
HISTORICAL BACKGROUND
- Traditional Perspectives:
Traditionally, it was expected to form families by having children through biological means. Social legitimacy was given to families that were formed out of heterosexual, procreative, and monogamous marriage. Non-biological parents, whether they had adopted a child or through surrogacy were not given much legitimacy as given to the biological parents 1.
- Early Reforms:
In the initial stages of recognizing non-biological parents, the paramount importance was given to guardianship and adoption. In India, various acts were passed such as the Guardianship Act, 1956. The sole objective of these laws is the welfare of children. Therefore, it can be considered that initially, guardians and those couples who adopted a child were recognized.
But the question is whether non-biological parents were also recognized. To get the answer to this question you have to delve deep into blog 2.
LEGAL ADVANCES
- Surrogacy and Assisted Reproductive Technology:
Surrogacy can be defined as a process in which a woman (the surrogate) gives birth to a child on behalf of a couple (intended parents).In India, surrogacy is legal. Many acts have been passed by the parliament regarding surrogacy such as:
- The Assisted Reproductive Technology Act, 2021
This act regulates the work of Assisted Reproduction Technology(ART) clinics that are established to provide surrogacy treatments in India. ART is a boon for those intended parents who want a child but are unable to conceive due to physical, psychological, or medical reasons.
Benefits of ART can be taken not only by married couples having Indian citizenship but by live-in partners, single women, and foreigners also.
- The Surrogacy (Regulation) Act, 2021
According to this act, surrogacy can be accessed by married couples and ever-married single women. Couples in live-in relationships, unmarried men, and same-sex couples are excluded from conceiving a baby through surrogacy. People of the LGBTQ+ community are also excluded. However, it is against the law of equality in India, and every citizen of India has this fundamental right as given in the Indian Constitution.
The first case of surrogacy in front of the Supreme Court of India was: –
Baby Manji Yamada v. Union of India (2008)
It was after this case the Supreme Court felt the need for regulated law for surrogacy 3.
- Same-sex Parenting:
“Children need parents, irrespective of their gender”.
In India, same-sex couples are not allowed to have a child through any means. It is a way towards discrimination. In Indian Society, same-sex parenting is taboo due to which the LGBTQ+ community has to face a lot of challenges. According to The Ministry of Health and Family Welfare, around 2.5 million people belong to the LGBTQ+ community. Despite its huge population, this community always remains a victim of discrimination.
There are different scenarios regarding discrimination against same-sex couples in both urban and rural India. Gradually, awareness has been spread among the people about the LGBTQ+ community through social media, print media, campaigns, etc. At first, we all are human beings, we should accept them too 4. Our youth is more open-minded according to a survey, 29 out of 195 countries have legalized same-sex marriages. India should walk on the path adopted by those countries so that homosexual couples can also enjoy the rights that are given by the Constitution of India.
- Blended Families:
Let’s first understand the meaning of blended families. They are also known as stepfamilies. They are families in which one or both partners have children from previous relationships. The legal definition of family was extended to blended families after the judgment delivered by the Supreme Court of India on 16th August 2022. It is only after this judgment, that atypical or blended families get legal protection and benefits as the same as given to traditional families. To achieve equality, discrimination must be eradicated from the society. Blended families should get advantages and schemes of social welfare as given to traditional families 5.
LEGAL CHALLENGES AND CONTROVERSIES
- Parental Rights Disputes
In the modern era, the LGBTQ+ community gets the right to marriage but no law recognizes the LGBTQ+ community’s parental rights in custody disputes. It can be due to a lack of federation. Not only the LGBTQ+ community, but also other non-biological parents such as stepparents, and surrogates, have to face challenges regarding child custody and visitation rights. This is a major issue that arises due to weak legal frameworks, biased decisions, and social attitudes. Non-biological parents have to encounter many challenges in protecting their legal rights of visitation and custody. Recognition of both parents in same-sex marriage is crucial so that they can also have access to benefits, custody, and decision-making power. In blended families where one parent is biologically related to the child, the other parent often needs to seek a second-parent adoption to legally establish parentage. This step is crucial for ensuring that both parents have legal rights and responsibilities that are recognized. To tackle this problem, there is a need to change societal attitudes and ensure proper advocacy and legal reforms so that non-biological parents have the same rights and opportunities as biological parents 6.
- Impact of Legal Uncertainty
Without clear legal recognition, there is a heart-wrenching impact on non-biological parents and their children. It can create emotional stress in families. Due to the lack of legal recognition, children are deprived of the love, care, and support of their families. A child has to face social stigma throughout his life which affects his/her academics.
COMPARATIVE ANALYSIS
- International Perspectives:
In the USA, laws have been passed that legalize same-sex marriages. Non- biological parents have the same rights that are given to biological parents. Non-biological parents have the same rights that are given to the biological parents. Non- traditional parentage concept developed over time. In 1960, the concept of no-fault divorce was introduced which opened the doors to single mothers or divorced parents to form new families. Parental rights were also provided to stepparents. Legal rights for non-biological parents in same-sex relationships were given first in the year 1990s.
Haltzman v Knott was the first case in the US in which a lesbian was recognized as a “de facto parent” of a child conceived and delivered by her partner in the course of their relationship.
The other case was Johnson v Calvert. In this case, a couple implanted their fertilized egg into a surrogate, who then claimed to be the mother after the child was born. Therefore, the concept of parenthood was shifted to non-biological parents also 7.
Likewise, USA, in countries such as Austria, Belgium, Denmark, Ireland, Malta, Netherlands, Norway, Portugal, Spain, and the UK, non-biological parents are legally recognized 8.
RECENT DEVELOPMENTS IN INDIA
In India, many laws have been passed such as the Hindu Adoptions and Maintenance Act. Any child adopted under this act legally transfers the rights of parenthood from the biological parents of a child to the adoptive parents. The adopted child becomes the legal heir of the adoptive parents 9.
The Juvenile Justice Act also allows for the adoption of all religions. This act ensures that the adopted child also has the same privileges and rights that are given to biological children.
Surrogacy is also legal in India under Surrogacy (Regulation) Act, 2021 which outlines rules for surrogacy agreements.
CONCLUSION
In conclusion, the concept of legal recognition for non-biological parents is dynamic and evolves from time to time. As our youth is getting open-minded, this concept takes a new form in modern times. Legal recognition of non-biological parents is important to ensure the overall welfare of children. With proper advocacy, implementation of legal reforms, and eradication of societal taboos from society, one can achieve the target of giving legal recognition to non-biological parents.
Author(s) Name: Navjot Kaur (Chandigarh Law College, Jhanjeri, Mohali, Punjab)
