Open Access Research Article
SOCIAL AND LEGAL ASPECTS OF SINGLE PARENTING
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SOCIAL AND LEGAL ASPECTS OF
SINGLE PARENTING
AUTHORED BY
- PAWANPREET SINGH
ABSTRACT
Single parenthood is on the rise, not
only in India but throughout the world. Being a single parent can be chosen for a variety of reasons. Only a
few instances are divorce, separation, choice, widowhood, and abandonment. Being a single
parent has a huge legal,
social, and financial impact on the individual, their family, as well as on society at
large. Impacts on the legal system include those related to child support, maintenance, and contact.
Unfortunately, the Matrimonial Causes Act includes supplemental remedies for each of them. There can be no
applications submitted without a divorce action. The lone parent
endures the most hardships outside
of the Marriage Act and customary law. The sole avenue for recourse
at this time is the Child Rights Act, which many people are not aware of. By
implementing new rules that are comprehensive enough
to cover the welfare of every child
and guarantee that there is no discrimination based on birth circumstances, society
must take proactive
steps to protect
these single parents
and their families. It's time to put an end to the
practice of leaving youngsters alone.
Keywords: Single
parenthood, Social and legal impact,
Divorce, Maintenance and Marriage
Act.
INTRODUCTION
We are gradually entering an era
where the idea of surrogacy is burgeoning in India as more women choose to be single parents for their
children. There are certain barriers, such as disclosing the father's name and details to society. The question
is whether single mothers have the right to use their names everywhere in the world and what exactly
the laws are for unmarried single mothers to raise children. Initially, the law recognized only male
parents as custodians of children; therefore, all state records required
the father's name,
and mothers had no rights
as natural guardians over the children.
The number of single-parent
households is rising in affluent countries as divorce becomes more common. The United States has the highest proportion of single-parent homes among developed
nations (34% in 1998), followed
by Canada (22%), Australia (20%), and Denmark (19%). Although divorce
is less common
in developing countries, other factors such as abandonment, death, and incarceration lead to single-parent
families headed largely by women. Rates vary from less than 5% in Kuwait to
more over 40% in Botswana and
Barbados, depending on the country. In Ghana, Kenya, Rwanda, Cuba, Puerto Rico, Trinidad and Tobago, and
other countries, women are in charge of more than 25% of households. According to projections, 50% of children born in
recent cohorts will spend some time growing up with a single
parent as a consequence of separation, divorce, or out-of-marriage births.
The not-the-most-up-to-date
statistics above demonstrate a global trend away from the traditional notion of family, in which two parents are
readily available to raise children. It could be seen as a breakdown of the concept of familial ties
or as a protest against the status quo. Regardless of one’s viewpoint, the main focus of this article
is on the legal, social, and economic repercussions of the rising trend of single motherhood and how
it affects the financial, political, and social aspects of family
life.
RESEARCH QUESTIONS
·
Do
the single mothers have the right to privacy to hide the name and details of
father if the child is born with the
process of surrogacy? And if yes, then what are the hurdles she has to faced?
·
What are the difficulties faced by single
parents after divorce
·
Who is legally capable for adopting child?
·
Can the single mother be a natural
guardian?
RESEARCH OBJECTIVES
·
To highlight the social and legal problems
faced by single
mother.
·
To highlight
the various methods of becoming single parent.
·
To throw light on the
process of adoption from Central
Adoption Resource Authority.
SCOPE OF THE STUDY
The research paper focuses on the
current legal status of single parents and the rights available to them and the children. The study is
limited to India. The topic is very important as the concept is still evolving and many issues related to the
legislations regarding single parents are recently raised in the courts.
RESEARCH METHODOLOGY
The research methodology is doctrinal
and analytical research, the research that uses sources in the library. Various books, journal articles,
book reviews have been referred. Apart from that online articles were also used. Case laws related to the provisions are
analysed. This is the most suitable methodology, as various information could
be accessed that helped in successfully completing the research paper.
LEGAL DIFFICULTIES FACED BY SINGLE PARENTS
AFTER DIVORCE
·
Child Custody-
there are two types of custody
which are:
Ø Physical Custody- Physical custody
means with which parent the child will live. It all depends on the court after listening to all
parties that the child will live with either father or mother or both.
Ø Legal Custody- Legal custody means
which parent takes the child's decisions—for example, which religion to
follow and which not, etc.
·
Child
Support- For single parents, paying or collecting child support frequently presents
a considerable legal challenge. It's
crucial to keep in mind that child support payments might change depending on your new income
and your kid's unique requirements.
·
Adoption-States
generally do not prohibit unmarried persons from adopting children, but adoption agencies may have different
policies regarding single parents. Some adoption agencies may prohibit
adoption entirely.
·
Housing
Discrimination- In our society, landlords do not give their house or flat for
rent, especially to a single mother,
because they think that the child she has may be illegitimate and She is of bad character, etc. But under the Fair
Housing Act, denying people housing based on family composition, parental status, or gender stereotypes is
illegal.
LITERATURE REVIEW
In Effect of Single Parent Family on
Child Delinquency, the social aspects of single parenting is discussed.[1] The author mainly focuses on the causes of juvenile delinquency and how a
single parent family can aggravate
the problem than a normal family. Unwed Mother: A Socio-Legal Study[2], examines
the legal status of a single mother in India. It also analyses the effect of
support programs given to the
mothers in our country. Biology, Intention, Labour: Understanding Legal
Recognition of Single Motherhood in
India[3] discusses about the problems faced
by single mothers especially when the details
of father of the child is asked for documents. The author mentions that this
violates the privacy of single
mothers. ‘Allow surrogacy for single men, mothers’[4], this article examines the court’s observation on a plea challenging the
current status of surrogay laws in India which excludes single men from becoming a parent. The article
‘The new laws relating to surrogacy and assisted reproduction, and related challenges’[5] explains the new surrogacy and ART
bills, which were passed in 2016 and
the opposition’s views about the ban on commercial surrogacy, which would
deprive many poor woman out
of income.
INHERITANCE RIGHTS OF CHILDREN IF HE/SHE HAS A SINGLE
PARENT
After The Divorce of the Parents
Even though their parents are
divorced, children still have legal claims to their possessions. The customary inheritance laws of the relevant
faith are applicable in such circumstances. As a result, the kid has a claim to inherited property,
and if the father dies, leaving behind the self-acquired property, the son inherits it according to custom.
If the father personally obtained the assets, he might leave them to
anybody else during his lifetime through a
written will.
If The Child Is Adopted
Adopted children are eligible to
receive a portion of their adoptive parent's wealth and have the same inheritance rights as biological
children. The adopted child can thus claim the same property as the biological child if the adoptive parent
passes away without leaving a will. However, following adoption, a kid forfeits the ability to inherit from his
biological parents or any related communal property,
according to the Hindu Adoption and Dependent Act of 1956. However, birth
parents have the option to
willingly bequeath such
property, or any part of it, to
their children.
EGG AND SPERM DONATION
An individual can become a parent
through egg (oocytes) or sperm (semen) donation, which is later inseminated to the woman’s body or given
for in- vitro fertilisation. Currently there is no proper legislation to regulate egg donation or
sperm donation in India. But Indian Council of Medical Research (ICMR) has issued certain guidelines regarding this.
Sperm can be donated through a sperm bank. In India, egg or
sperm can’t be donated by a known donor. The donor should be anonymous. The egg
donor should be married and should have a child of minimum of three years old.
She can donate only once in her lifetime and can
donate only seven eggs, which should be given to only one party seeking
service. The person should be free of infections. He or she has to undergo genetic
tests and has to specify blood and Rh group. All the
biological information like height, weight, age, skin color etc are collected. These details cannot be
disclosed except to ICMR or court. The donor should not be below 21 years of age and not more than 35 yr old. The eggs can also be frozen for future use. The clinic should be legally registered and
the professionals should meet qualifications as prescribed by ICMR. The ART clinics should help
individuals to choose the right donor. Written consent of patient should be taken after informing them about
the risks. Written consent of the bank (from where egg or sperm is collected) should also be taken.
Embryos should not be placed in any animal except humans for experiments and it should be approved by Institutional
Ethics Committee. The donors doesn’t have parental
rights over the kid. Apart from infertile couples, this method is popular among
individuals who wishes to become a single mother or father,
gay and lesbian couples. But there
are many concerns related to this method. Mixing of sperm
and selection of gametes from the
same geographical area, which leads to genetic problems,
can lead to complications.
Recently, the Kerala High Court held
that the single mothers have right to privacy. The petitioner, a single mother, who became pregnant through
IVF sought to strike down the column regarding the details of the father of a child born to a single mother in
birth certificates. There should be no question on paternity and the
child born out of these
methods has the rights of
a naturally born child.
As per the Assisted Reproductive
Technology (Regulation) Act, 2021, if the child born through assisted reproductive method is abandoned
then it will be punished with a fine of not
less than 5 lakh which may extend to
10 lakh and an imprisonment of three to eight years and fine of ten to twenty lakhs for the second time. If sex selective assisted
reproductive process is done then it will
be punished with a fine not
less ten lakh which may extend to 10 lakh or imprisonment not less than 5 years which can extend till 10 years or
both. Since children born through ART are not recognised under any law, they are considered as illegitimate. There are
problems related to inheritance rights of such
children. The child won’t be able to know their genetic parent as the donor’s
identity is not disclosed.
FOSTERING
Fostering is the practice of taking care
of a child , usually for a short period of time. In India, the legislations related to fostering are at a
nascent stage. The foster parent only has guardianship. The biological parent of the foster child is
still the legal parents. In India, an individual has the right to become foster parent. Some of the
legislations related to fostering in India are Model Guidelines for Foster Care, 2016 ( issued by Ministry of
Women and Child Development) , Juvenile Justice Act and Integrated Child Protection Scheme. A man cannot take care of a
girl child. The child can be adopted for a short term,
which is below one year and
for long term which is beyond
one year. Only two kids can be placed for fostering with the
same person (only 4 kids including biological children). The children will be sent to parents of
similar culture if possible. The foster parent should not be involved in any criminal proceedings. The child’s
biological parents may be having mental illness or unable to take care of the kid or may be in jail.
The child can be victim of abuse or natural disasters. The child has the right to know about his or her
biological parents. They also have the right to know about the developmental schemes. The foster parents
should provide the kid education, food, clothes and other basic necessities. They can adopt the same
child after taking care of it for a period of five years, if there are no other claimants for the
child. The foster parents have the right to be heard and respected. They should
not be discriminated on the basis
of their social origin.
For juvenile offenders, foster care
is prescribed under Section 42 of the Juvenile Justice Act of 2000[6] and section 23 of Juvenile Justice
(Care and Protection of Children) Model Rules, 2016 for rehabilitation. Under Section 28 of Juvenile Justice (Care and Protection of Children) Model Rules, 2016[7] a ‘fit person’ who has the capacity
to take care of the child can become a foster parent of a juvenile offender, if approved by a
committee. Under this act, a child should not remain with the fit person for more than 30 days and the
period should be decided by the committee. Apart from this, many individuals adopt kids through
sponsorship programme. But most of the people are not aware of this method. Malpractices and non- proper working
of the mechanism are also the demerits.
SURROGACY
Surrogacy is a method used by mothers
who cannot conceive a child. There are two types of surrogacy – gestational and traditional, in which gestational
surrogacy is allowed in India. Currently, in
our country only divorced and widowed woman can go for surrogacy. Generally
couples are preferred. Recently, the
government banned commercial surrogacy. The surrogate mother should not be more than 45 years old. It can be a
relative, who belongs to the same generation as the intending parent. A person cannot be a surrogate
mother for more than thrice in life. If the person gets divorced during the procedures then the laws
relating to normal conceiving would apply. The surrogate child chas all the rights of a biological child.
In 2022, the Delhi high court has remarked that the ban on single men
to adopt through surrogacy invades their right to privacy.
CARA (CENTRAL ADOPTION
RESOURCE AUTHORITY)
Central Adoption Resource Authority (CARA) is
an autonomous and statutory body of
the Ministry of Women & Child Development,
Government of India. It was set up in 1990 under the Juvenile Justice (Care and Protection of Children)
Act, 2015[8]. It functions as the nodal body for
the adoption of Indian children. It
is mandated to monitor and regulate in-country and inter-country adoptions following the provisions of the 1993 Hague
Convention on Intercountry Adoption, ratified by the government of India in 2003. It is formed to regulate and
monitor in-country and inter-country adoptions of abandoned, orphaned
and surrendered children
through its recognised adoption agencies.
CARA primarily deals with the
adoption of "orphaned, abandoned and surrendered" children through
recognised adoption agencies. In 2018, CARA has allowed individuals in a
live-in relationship to adopt children from and within India.
Who can adopt a child?
The eligibility of parents for
adoption of children has been defined under the rules of CARA. The rule 2(b) and 2(c) of the CARA specifies that
a single female can adopt a child of any gender and a single male shall not be eligible to
adopt a girl child.
The age of the prospective parents is
also counted on the registration in CARA. In the cases of single parents
the age is prescribed as follows:
·
If the age of child is Upto
4 years then the maximum
age of prospective adoptive parent should be 45 years.
·
Between
4 and 8 years, then the age of the prospective age of the single parent shall
be not more than 50 years.
·
Between 8 and 18 years, then the age of the prospective single parent shall
be not more than 55 years.
·
The
minimum age difference between the child and either of the prospective adoptive
parents shall not be less than twenty-five years.
·
In
India, the minimum age requirement for single mother adoption has been lowered
from 30 to 25. The adopting single
man must be at least 25 years old.
·
A
child under the age of four can be adopted by
prospective single male and female parents up to the age of 45, while children
between the ages of five and eight
can be adopted by individuals up to the age of 50.
·
Adopting
children between the ages of 9 and 18 is permitted for people under the age of
55.
·
After
this age, adoption is not permitted.
LEGAL PROVISIONS
The National Commission for Women
(NCW) thought guardianship rights needed to be reviewed and changed to end longstanding patriarchy.
The National Commission of Women recommended that the Ministry of Women
Empowerment and Children Development amend the guardianship law.
The Hindu Minority and Guardianship
Act, 1956 (HMGA), and the Guardianship and Wards Act, 1890[9], are two significant statutes that
govern a parent's or a third party's rights (guardian). In a marriage,
the father is the child's
natural guardian, and the mother's
rights are only acknowledged after the father's, according to Section 6
of the HMGA[10], 1956. But in the event of
illegitimate children, the mother
takes on the role of the natural guardian, and the father is exempt from any
legal obligations. Due to the
apparent discrepancy between Section 6 of the Hindu Minority and Guardianship Act (HMGA) and Articles 14
and 15 of the Indian Constitution, which provide equal rights, the National Commission for Women is attempting to give
parents the same guardianship rights as children.
The Supreme Court, in ABC v State
(NCT, Delhi)[11] case, held that unmarried mothers
are the legal guardians of their
children, so unmarried mothers do not need to disclose the identity of their
child's father detail and name. In this
case, a woman gave birth to her son in 2010 and raised her son without her father's support or assistance. When
she wanted to make her son nominee for all her savings and other insurance, the authorities asked her
to disclose the father's name to obtain a birth or adoption/guardianship certificate. Therefore, in this case, the
judge ruled that the child's best interests would
be served if the applicant (the mother) were appointed guardian. Moreover, if
she is forced to reveal the child's
paternity's name and personal information, her fundamental right to privacy is violated. This allowed a single mother to
claim sole custody of her child without revealing her father's name or seeking
his consent. The court determined that we now live in a society where more and more women consider raising their children
an essential factor in the child's best interests. It was agreed that the child's best interests
would not be affected if the mother did not reveal the child’s father's
identity.
In Mathumitha Ramesh v. The Chief
Health Officer[12] case, the petitioner was a divorced
woman who had undergone intrauterine infertility treatment and had been fertilized by a donor.
The complainant then gave
birth to a baby. The surname of the baby was mistakenly registered with the
name of the person who helped her at
the hospital. It was compulsory that the father's name had to be registered to obtain the birth certificate. The man
named as her baby's father is neither her husband nor the child's father. The complainant attempted to
correct this error, but the authority had denied it. Therefore appealed, the matter to the Madras High
Court. The court made a historic ruling that it was not mandatory to register
the father's name to obtain a birth certificate.
ANALYSIS
After going through all the available
sources it has been found that there are many ways in which individual can become parents but the
statutes in India relating to this are at a nascent stage. Also the laws for adoption differs as per religion
of the parent. Usually, mothers are given the custody of female child and fathers should take care of boys as per
personal laws. In 2015, SC favoured application
of UCC (Uniform Civil Code) in a case where the right to privacy of single
christian mother was raised. But
recently the courts are focusing to answer the questions regarding the rights
of single parents and their
children. Right to privacy of single mothers is currently a prominent issue raised before the court. In this case the
court gave a judgement which is appropriate for the recent times. It can be concluded
since single parenting is a
foreign concept, current
Indian legislations regarding this are
not sufficient.
SUGGESTIONS AND CONCLUSION
Even though there are many landmark
judgements addressing the concerns of single parents still there are many problems faced by single parents
while adopting a child, as most of the legislations are preferring couples as the society consider support from both the
parents is better for the development of
the child. Sociological problems related to single parenting are also
restricting the authorities while giving
a child to an individual. The laws are also discriminatory towards men as most
of the options for becoming a single
parent are not available to them. This should be considered by the courts and a proper law should be made. Commercial
surrogacy, malpractices in the labs and issues of human trafficking are continuing even now, which calls for the strict implementation of the
existing provisions.
REFERENCES
·
Aditi Mukherji 2013. “Top 10 Legal Issues for Single
Moms JD on May 6, 2013 7:31 AM”
·
Anthonia M. Essien and Agapetus A. Bassey 2015. “The
Social and Religious Challenges of
Single Mothers in Nigeria”
·
Barber, Bonnie L., Eccles, Jacquelynne S. 1992.
“Long-term influence of divorce and single
parenting on adolescent family- and work-related values, behaviour, and aspirations.” Psychological Bulletin,
Vol 111(1), Jan, 1992 (108-126)
·
Elizabeth A. Mulroy 2012. “Women as Single Parents:
Confronting Institutional Barriers in the Courts,
the Workplace, and the Housing Market”
·
Fields, Jason 2003. "Children's Living
Arrangements and Characteristics: March 2002."
Current Population Reports. United States Department of Commerce Economics and Statistics
Administration, June, 2003.
·
Keith Ablow 2012.“The psychological impact of single
parenting •Published July 22, 2012 FoxNews.com”
·
Metropolis, Nigeria.An International
Multi-Disciplinary Journal, EthiopiaVol. 4 (2)
April, 2010(Pp 185-196)
·
Olakunle Allison 2014. “Children Caught Between Separation
and Divorce In Nigeria: Issues & Reliefs”
Published in This Day Newspaper September 16, 2014
·
Olaleye, Yemisi Lydia,
2017. “Single Parenthood Impact on Street Children
in Ibadan”
·
Patricia Leavy 2012.“A Conversation about Single
Parenting: Challenging The Stereotypes Jan 15, 2017”.American Journal of Social
Issues & Humanities.
[1]Effect of Single Parent Family on
Child Delinquency, https://www.ijsr.net/archive/v3i9/U0VQMTQ0MA%3D%3D.pdf , Last visited 10th
October 2022.
[2]Unwed Mother: A Socio-Legal Study, https://www.i-scholar.in/index.php/ijphrd/article/view/194779, last visited 11th
October 2022.
[3]Understanding Legal Recognition of Single Motherhood in India, https://pure.jgu.edu.in/id/eprint/2536/#:~:text=The%20article%20shows%20that%20in,the%20labor%20of%20par%20enting , last visited 11th
October 2022.
[4]Allow surrogacy for single men,
mothers, https://www.thehindu.com/news/cities/Delhi/why-exclude-a-single-man-or-a-married-woman-from-surrogacy/article65468510.ece, last visited 13th
October 2022.
[5] The new laws relating to surrogacy
and assisted reproduction, and
related challenges https://iasscore.in/current-affairs/the-new-laws-relating-to-surrogacy-and-assisted-reproduction-and-related-challenges, last visited 15th
October 2022.
[6] Juvenile Justice Act, 2000, S. 23,
Acts of Parliament, 2000 (India).
[7] Juvenile Justice Model Rules,
2016, S.28, Acts of Parliament, 2016 (India).
[8] Juvenile Justice Act, 2015, Acts
of Parliament, 2015 (India).
[9] Guardianships and Wards Act, 1890,
Acts of Parliament, 1956 (India).
[10] Hindu Minority and Guardianship
Act, 1956, S. 6, Acts of Parliament, 1956 (India).
[11]ABC vs. State (NCT of Delhi) 2015
SC 609.
[12]Mathumitha Ramesh v. Chief Health
Officer,2018 Mad 2153.
Article Information
SOCIAL AND LEGAL ASPECTS OF SINGLE PARENTING
Authors: PAWANPREET SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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