Whether one person has the right to take the decision as to bear or beget a child? Attempting to answer this question will lead us to various dimensions of reproductive rights of an individual; including child bearing and parenting. Reproductive rights are no longer treated as a mere privilege or a benefit bestowed upon male and female unified by marriage. It has been now legally accepted as a fundamental human right of a person. Nowadays, an often popping question on the issue of reproductive rights is – ‘what are the rights of a single mother by choice?’.
When a woman makes a choice to become a mother on her own, without the involvement of a partner, she can be called a single mother by choice. They either adopt or become pregnant through Assistive Reproductive Technologies such as In Vitro Fertilisation (IVF), surrogacy etc. In such scenarios there won’t be any involvement of either a biological or a social father. They are also known as solo mothers.
Historically and culturally, giving birth to a child is considered as an important facet of marriage. Motherhood of a married woman is celebrated in all cultures across the world. However, women choosing or forced to bear child away from the bounds of marriage are often frowned upon and demoralised. Our social structure, with which we are accustomed with is built around the concept of marriage and the family which sprouts from it. The legal frame work in the country was also not construed thinking beyond the said frame work. It creates an illusion that marriage is the only approvable way of starting a family. As a result when an unmarried woman takes a brave step to embrace motherhood, it will be discouraged and will be painted as a bad decision. They often face obstructions even in matters like school admission, housing etc. This mainly happens due to the lack of awareness about or lack of respect towards an individuals’ reproductive rights. The issues faced by the single mothers who become mothers by choice, and not due to reasons like widowhood or divorce, are largely due to the inability of the society at large to accept that a woman is entitled to make that choice and that child bearing is possible without the involvement of biological father.
In 2009, the Supreme Court of India in Suchita Srivastava’s case recognised women’s right to make reproductive choices as a dimension of personal liberty. In Puttaswamy’s case (2017) and Navtej Sign Johar case (2018) the Supreme Court reiterated the importance of right to privacy and the right to choose. These rights are entwined with dignity of a person. In Puttaswamy’s case apex court held that reflections of dignity are found in Article 14, 19 and 21. Thus, an adult woman has the fundamental right to make decisions about whether she wants to have children, when she wants to have children, with whom she wants to have children and whether she wants to have children within a wedlock or outside. A single mother by choice is entitled to celebrate her motherhood without any discrimination or obstruction like any parent in a two parents family.
It is true that, many laws in connection with parenthood consider woman inferior to man when it comes to issues like who can be a legal guardian. However, when a child is born within a wedlock, our laws are equipped to take care every aspect of child bearing and parenthood. These include, registration of birth, guardian ship, custody of child, schooling etc. But our laws are yet to evolve fully to accommodate and recognise the rights of an unwed woman who chose to become a mother outside the wedlock. Even though, law permits and recognises single motherhood, because of lack of clarity and due to the ignorance about single parenthood, the idea ‘single motherhood by choice’ comes as a shock to many officials. As a result, it becomes problematic for a single mother by choice to even do the simplest things, such as registration of the birth of her child without disclosing the details of biological father.
In the past decade many women have approached various High Courts and the Supreme Court of India seeking to protect their rights as a single mother when the birth registration authorities either refused or delayed the registration of birth of children only because they were born to single mothers. In ABC case of 2015, apex court while considering the plea of a single mother, directed the authorities to issue birth certificate upon her submitting an affidavit to the effect that, she is a single mother. Madras High Court in Mathumitha Ramesh’s case (2018) referring to ABC judgment has issued similar directions.
Recently, a woman who became pregnant through Assisted Reproductive Technologies (ART) had approached the High Court of Kerala challenging the forms for registration of births and deaths prescribed by the State of Kerala under the Kerala Registration of Births and Deaths Rules, 1999. According to her, the fields which require disclosure of the details of father and the fields which only provide the option to give the details of father or husband and completely ignore the role of a mother or wife in a person’s life were discriminatory and violate of the fundamental rights of the single mother and her child. The court, accepting her plea, on 13 August 2021 directed the State of Kerala to bring in new forms which do not contain the fields requiring details of father since asking for details of a father of a child conceived through ART would be violation of “rights of privacy, dignity and liberty”. The Court also directed that “in the column where the name of the father or husband is sought for, another entry could be made as that of the mother (like Father / Husband / Mother)”.The judiciary of the country has thus taken a favourable stand towards single mothers on many occasions.
While talking about the rights of the single mothers by choice the laws relating to ART can’t be ignored. As per the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India published by the Ministry for Health and Family Welfare, Government of India in the year 2005 “There would be no bar to the use of ART by a single woman who wishes to have a child, and no ART clinic may refuse to offer its services to the above provided other criteria mentioned in this document are satisfied. The child thus born will have all the legal rights on the woman or the man.” The Assisted Reproductive Technology (Regulation) Bill, 2020 introduced in the Lok Sabha also recognises the right of a woman of a legally marriageable age to opt for single motherhood through ART. Thus when a woman has the right to become mother outside the wedlock, it is high time that, our laws in connection with birth, guardian ship, custody, legal heir ship, death etc. also should recognise the rights of a single mother and her child.
Need for change
The judgment by the various courts are great blessings for the single mothers. However, the struggle of a single mothers by choice does not end with registering the birth of her child. Apart from contemptuous scrutiny they face every day from the society and the associated psychological trauma they endure, they also will have to often deal with the discrimination from our administrative set up. In every application forms, on every turn of life one will be asked to provide details of father (and sometime only the details of father). Incidents like inability to get admissions in schools because of the mandatory requirement to provide father’s details is one among the many problems several single mothers face despite the fact that, law recognises an unmarried woman’s right to become a mother. There is a need to bring in changes in the relevant laws explicitly acknowledging the rights of a single mother by choice and to make efforts to spread awareness about reproductive rights, to ensure that single mothers by choice and their children are not discriminated.
We are living in an era, where intolerance towards the ideologies different from one’s own is growing at an alarming rate. A society can progress only when each individual is given space to live and grow peacefully. A single mother by choice is entitled to embrace her motherhood free from societal and other obstructions. It is the duty of the State to acknowledge and attempt to provide an environment, where a single mother by choice can live normally and her child can grow as freely as a child born to a married couple can and be a catalyst for the required change.
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