Gender May Be Fluid, Not The Idea Of Mother: ASG Aishwarya Bhati Argues On Behalf Of NCPCR In Same Sex Marriage Case

The Supreme Court today considered the submissions of the National Commission for the Protection of Child Rights (NCPCR) opposing the batch of pleas seeking recognition of same-sex marriage. The submissions made by the NCPCR revolved around the impact a child will have on its all-around development if such children are raised by same-sex couples. 

The Constitution bench led by Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha noted the submissions made by the Additional Solicitor General Aishwarya Bhati who appeared for the NCPCR.

The ASG at the outset submitted that she has two submissions to be made, one of them would be that "there is a basic structure of marriage and that is the union of man and women" and the second is "gender fluidity is impermissible where cisgender is core and ignoring rational of valid classification amounts to perpetrating inequality."

Continuing, the ASG submitted, "I have given examples of areas which have been reserved specifically for women, because if these spaces are diluted in any matter then what will be lost is really cause of women’s equality, well being and empowerment. I have given examples like women’s recruitment and spaces which are specifically for women, women's washrooms, women correctional homes, women inmates, welfares room, and ladies' bar rooms."

She further stated that in the judgement of NALSA, the Supreme Court recognized transgenders as a third gender and did not 'retrofit' it in the existing two genders. "Milords, it is very critical that gender fluidity cannot be permitted in the areas where cisgender is core." submitted Bhati. Speaking about children, Bhati stated that the "welfare of child is paramount and sacrosanct and cannot be opened or exposed even for an iota of potential compromise or uncertainty."

Continuing, she said that "the child has a right to be born and raised by a biological parent. All children are naturally born to only heterosexual couples and now the architecture of laws which are relating to children there are no competing rights in the space, there are only sacrosanct and paramount rights." She also added that "to the extent that sometimes a child may need to be protected from himself, the entire architecture of these laws is from the concept of the welfare of the child being paramount."

The ASG also submitted that "a child can only be naturally born through a heterosexual couple and therefore the special significance of recognition of heterosexual marriages cannot be understated from the point of view of both from the birth of a child and bringing up of a child." Relying on several research papers, Bhati said that "the fathers and mothers both play complementary roles in bringing up of a child and a State is justified in treating homosexual and heterosexual unions differently for that purpose." 

"Marriage is not a factory for childbearing, marriage exists to encourage men and women to create the next generation in the right context and simultaneously to discourage the creation of children in another context out of wedlock in fatherless homes." submitted the ASG. She further added that "It is not simply the presence of two parents as some have presumed but the presence of two biological parents that seem to support child development. Children in single-parent families, children born to unmarried mothers, children in step-families or cohabiting relationships face a higher risk of poor outcomes than do children in intact families headed by two biological parents. Parental divorces also link to a range of poor academic and behavioural outcomes."

Convention Beats Unconventional Every Time

The ASG stated that "to date, the research on child well-being and family form bears out that the children thrive on structure, order, routine stability continuity, certainty and clarity and the evidence shows that convention beats unconventional every time. This means that complexities and ambiguities in non-traditional families come at a price."

The CJI then posed a query, "But Ms. Bhati, our Law permits a single person to adopt a child." Answering this, the ASG stated that "the entire architecture when it comes to the legislations regarding the welfare of the child, milords it is that child alone who has rights and it is in sync with the UN Child Rights Convention, it is in sync with the constitutional philosophy and ethos."

The Idea of Motherhood is Given Careful Consideration

"The architecture of child legislation is so pervasive and significant that it even extends to covering beneficially the mother of the child. The human child really is one of the most helpless children of all living beings in nature and it needs all pervasive intense and indulgent care in the early years. Therefore mother has been strongly protected not just in the constitution but in the Juvenile Justice Act and Maternity Benefit Act. Gender may be fluid but the idea of a mother cannot be and therefore it is very pertinent and important that this is given a very careful consideration" submitted the ASG.

Justice Bhat then said, "We have gone beyond motherhood; we have gone into parenthood today. There are single parents, there is death at childbirth, the mother unfortunately dies of disease or accidents and there is no question of care given by the father."

The ASG responded by saying, "See it from the perspective that this method of naturally born heterosexual couples bringing up their children is the ideal mode and the law and entire regulations has provided for children who do not have that. From that perspective see the aspect of adoption, see the example of sponsorship which is available to only widowed, divorced or abandoned mothers to seek sponsorship for their children, that is protection available under Section 45 specifically available to this category of women."

Law Recognizes That You Can Adopt For a Variety of Reasons

The Chief Justice of India stated that "Law does recognize you can adopt for a variety of reasons, may adopt even if you are capable of biological birth, you can adopt if you don’t want biological birth. There is no compulsion to have biological children, therefore, our law does recognize the fact that there may be situations within this ideal of cohabiting family with father and mother of a heterosexual family having their own biologically born children. But that's not how our law is postulated also. What happens if during the pendency, during the tenure of a heterosexual marriage one of the spouses dies then the other spouse really assumes the character of mother and father both."

ASG Bhati responded by saying that  "Law recognizes from the perspective of a child. Your lordships have held that there is no fundamental right of adoption." Justice Bhat commented that "we may differ on that, even if we go back to tradition, the right of the grandfather to take in adoption the son of the daughter what is classically known as approved forms of having a child ‘Pitri ka Putra’ that is known notion, it is allowed in the tradition, therefore, to say this an exception may not be appropriate. ..There is another purpose there and even situations where adoptions take place and then there is biological birth that too happens. So there are many situations where adoption is the norm."

Continuing the ASG stated, "My endeavour is to present to your lordships that all of this is crafted together from the perspective of the child being at the core of it." To which the CJI observed and said "that you may not labour at all. The welfare of the child is paramount, obviously, but the means of realizing that welfare are numerous, and the pathways are numerous, some of them are matter of choice and some are compulsion. Tell us one thing is it your case that the right which is otherwise available when an individual adopts a child is taken away because that individual is in any relationship otherwise than a heterosexual marriage?" 

That is right, the ASG replied.

Further, the CJI asked that "If two people are in a live-in relationship, does that mean that therefore because of the fact that the two people are in a live-in relationship, the heterosexual couples, will not have a right to adopt?" The ASG answered,"Not under the existing law." The Court further queried and asked "But is the right of one of them to adopt taken away because she or he is in a live-in relationship? And if a heterosexual couple is in a live-in relationship, one of them can certainly adopt or is it CARA’s case that we will deny you the right to adopt because you are in a heterosexual live-in relationship? The circular says that you cannot adopt by virtue of a heterosexual being in a live-in relationship or in a same-sex relationship and even if they subsequently do then will the child be taken back?"

Answering the queries raised, the ASG submitted,"There are provisions for disruption and dissolution in adoption also. It is carefully crafted because the child who was adopted will become a child of that person for all purposes, for inheritance and all other rights." She also stated that “Every child is entitled to a root search, even adopted child also when he becomes a major, he is entitled to do it on his own or through his adopted parents”.

On the aspect of adoption, the ASG told the Bench that “there are about 30,000 parents who are registered, prospective adoptive parents waiting for adoption and the children who are in the pool are less than 1500”. The CJI exclaimed and asked that "Only 1500 children are there for adoption?"  Bhati responded and said, "Yes, that too in a pool. Because there is a mechanism which is laid down.”

Continuing on the other aspects, Bhati submitted that "the National Board of Surrogacy and ART were referred to issues that why are you not allowing donor gametes in the surrogacy. The answer which has come is the emotional bond of a child is very important, we can’t even take a one per cent chance. Between the egg, sperm and the uterus, at least two of them have to be biological parents. The reasoning is there has to be a strong emotional bond of the parents who are going for these assistive mechanisms." She also added that "Women are protected by virtue of their marriage or domestic relationships."

Concluding her submissions, Bhati told that "34 countries which have in some manner recognized the civil unions, 27 of them have gender-neutral rape laws. The social fabric is different." and that “any general declaration readings in spouse instead of as husband and wives will make laws relating to adoption, assisted reproduction and surrogate reproduction completely unworkable.”