Karnataka High Court shocked by ‘agreement for adoption’ of unborn child

Adoption of an unborn is unknown to the law, says court while observing that the unborn too have a right to life under Article 21 of the Constitution

Expressing shock over an ‘agreement for adoption’ entered into by two couples with respect to an unborn child, the High Court of Karnataka said that such an ‘agreement is unknown to law’ while stating that this is a case of ‘adoption for money’.

The court held that the ‘agreement’ is invalid even under the principles of Mohammedan law, which does not recognise the adoption as the ‘agreement’ was between the biological parents, who belong to the Hindu community, and the adoptive parents, who belong to the Muslim community.

Observing that the right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution of India, the court said that the District Child Protection Unit (DCPU), Udupi was right in registering a criminal case against both the adoptive and the biological parents. The DCPU had alleged that the child was illegally exchanged for money.

A division bench comprising Justice B. Veerappa and Justice K.S. Hemalekha made these observations while dismissing an appeal jointly filed by both the adoptive parents (aged between 33 and 39 years) and the biological parents (aged between 32 and 36 years) of a two-year-and-nine-month-old girl. They had questioned the Udupi district court’s order dismissing the plea seeking custody of the child.

“It is well settled that an unborn child has a life of its own and rights of its own, and the rights of unborn are recognised by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Article 21 of the Constitution,” the bench said.

“True, an unborn is not a natural person, but it is well known that after six weeks, life is infused into the embryo, thus converting embryo into foetus, and once an embryo evolves into a foetus, the heartbeat starts. In other words, the unborn has life from the stage it transforms into foetus. If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Article 21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child. In other words, the right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution of India,” observed the bench.

The agreement