“There is no rational basis for denying to a homosexual couple, the right to adopt.” – Justice A.P. Shah, former Chief Justice of the Delhi High Court.
Same-sex couples are not allowed to marry, adopt, or have a child through surrogacy. The definition of “family” includes a group of people who are related through marriage, blood, or adoption and live together as a single unit, interacting in their respective social positions. In India, only heterosexual couples are provided with the rights of the family.
Even though Section 377 has been decriminalized, those who do not conform to heterosexual norms still face ostracization, with outdated notions of normality and family often being the root cause. Although the Navtej Singh judgment decriminalized same-sex love, three years ago, there has been no further announcement of rights for same-sex couples. Despite the progressive stance of this judgment, Indian society and legislation have not taken further steps to normalize same-sex love and non-binary genders. This article will examine how current Indian adoption policies exclude same-sex couples and will also analyze India’s approach and progress toward overcoming these outdated notions.
The LGBTQ community has been fighting for equal rights for a long time, and one of the most significant struggles has been for the right to marry and adopt. Same-sex couples face legal and financial issues due to the lack of legal recognition of their relationships, including difficulty obtaining legal custody of their own children and being denied access to benefits and rights. Furthermore, when same-sex couples are not allowed to marry, they are often denied access to the same benefits and rights as married couples. These benefits can include tax breaks, inheritance rights, and access to healthcare. Social stigmatization and discrimination create a hostile environment for LGBTQ individuals and families, negatively impacting mental health. Adoption laws in many countries favor married couples or require one member to be the biological parent, creating barriers for LGBTQ+ individuals and couples. Legalizing same-sex marriage can help to address discrimination and shift society away from harmful biases, making it easier for LGBTQ+ individuals to become adoptive parents.
The case of National Textile Workers’ Union v. P.R. Ramakrishnan highlights that the law must adapt to changing social values, and the LGBTQ community deserves their rights. The government should address the issue of LGBTQ couples not having legal recognition. This can be done by amending the Special Marriage Act, enacting a new law, or interpreting the word ‘couple’ to include civil relationships.
Justice D. Y. Chandrachud also mentioned that “It is the constitutional duty of the state to ensure that every citizen is treated equally, irrespective of their sexual orientation.” The Indian Constitution’s Articles 14, 15, and 21 protect the rights of Indian citizens, including same-sex couples. Discrimination against unmarried or same-sex couples for adoption is arbitrary and violates Article 14’s guarantee of equality before the law. Article 15 prohibits discrimination based on sex, which includes sexual orientation, and same-sex couples should have the same adoption rights as different-sex couples. Article 21 protects the right to life and personal liberty, including dignity. Denying same-sex couples the right to adoption based on their sexual orientation harms their dignity, as it is not related to their capacity or merit as prospective parents. The research also shows that children raised by same-sex parents perform well in education
LGBTQ+ COMMUNITY RIGHTS TO ADOPTION
What is Adoption?
- Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015
“Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of the adoptive parents with all the rights, privileges, and responsibilities that are attached to a biological child.”
Adoption laws India
In India, there are several laws related to adoption, including
The Hindu Adoption and Maintenance Act, 1956 and the Guardianship and Wards Act, 1980:
Under the Hindu Adoption and Maintenance Act 1956, only married people or single individuals governed by Hindu laws can adopt, while people of other religions can become guardians under the Guardianship and Wards Act. The Hindu Adoption and Maintenance Act mentions “husband” and “wife” while discussing adoption capacity, indicating that it does not acknowledge adoption by same-sex couples. Additionally, the law only outlines adoption eligibility for Hindu males and females, leaving a gap in its application to third-gender couples.
The Juvenile Justice (care and Protection of Children) Act, 2000:
The Juvenile Justice Act allows adoption regardless of religion, but only married couples with at least two years of a stable marital relationship are eligible for adoption. Provisions for the same are laid in Adoption Regulations, 2017, framed by Central Adoption Resource Authority.
However, since same-sex marriage is not legal in India, same-sex couples face difficulties in adopting children, and they can only adopt under one partner’s name. This situation can lead to issues related to custody and maintenance. Despite recent research indicating that children raised by same-sex couples outperform those raised by heterosexual couples academically, the Indian government is reluctant to accept same-sex marriage. The primary concern should be to provide a healthy and loving environment for children, regardless of their parent’s gender
Single parenting discrimination against couples
Tara Narula, a legal fellow and advocate at the ‘HAQ: Centre for Child Rights’, explained that the law neither allows nor prohibits adoption based on sexual orientation, meaning that anyone can adopt a child under the Juvenile Justice Act or Hindu Adoptions and Maintenance Act (HAMA). However, no law accommodates same-sex marriage or live-in relationships for adoption purposes.
As a result, an LGBTQ+ individual can only apply for adoption as a single parent through the Central Adoption Review Authority. Legal experts and child rights activists believe that if same-sex unions were to be legalized in India, it would put an end to the discrimination against LGBTQ+ members who could then adopt as a married couple.
Narula emphasized that the social rights entitled to LGBTQ+ persons have not yet been fully realized by the state. It is only when these rights come together in a holistic manner that non-normative relationships will have access to a legally recognized right to a family. Narula confirmed that LGBTQ+ persons have been legally adopting children in India for many years, although without explicit recognition. She stressed the importance of achieving a stage where not only the rights of LGBTQ+ persons are recognized, but also where same-sex unions receive equal treatment under the law.
Navtej Singh Johar & Ors. v. Union of India (2018):
In this landmark judgment, the Supreme Court of India struck down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships. The court also held that sexual orientation is an essential attribute of privacy, and discrimination based on sexual orientation is a violation of fundamental rights. While this case does not directly relate to adoption, it lays the foundation for the recognition of LGBTQ+ rights in India.
Anjali Gopalan v. Union of India (2013):
In this case, the Delhi High Court held that a gay couple could adopt a child under the Juvenile Justice Act, which allows single parents to adopt children. The court held that the law does not prohibit adoption by gay couples and that the best interests of the child should be the primary consideration in adoption cases.
Suresh Kumar Kaushal v. Naz Foundation (2014): In this case, the Supreme Court of India overturned the Delhi High Court’s decision in the above case and reinstated the criminalization of consensual same-sex relationships under Section 377. This decision was later reversed in the Navtej Singh Johar case.
ABC v. The State (2015): In this case, the Bombay High Court held that a gay couple could be recognized as the legal parents of a child born through surrogacy. The court held that the biological link between the child and the intended parents is not the only criterion for determining parentage and that the child’s best interests should be the primary consideration.
AMENDMENTS REQUIRED IN STATUTES
- The Hindu Adoptions and Maintenance Act and the Juvenile Justice Act needed to be aligned to create comprehensive adoption legislation that includes all religions and the LGBTQ community.
- Adoption laws should be amended to remove any language that discriminates against LGBTQ+ individuals or couples. This could include removing phrases like “husband and wife” or “mother and father” and replacing them with gender-neutral terms that recognize a variety of family structures.
- Adoption laws should be amended to provide legal recognition of both parents in a same-sex couple, just as they would for a heterosexual couple.
- The adoption process for relatives should be made simpler and more flexible, with reduced documentation requirements. Also, new legislation should encompass for LGBTQ community.
OTHER COUNTRIES COMPARISON
Adopting another country’s laws can result in legal inconsistencies, such as how a same-sex marriage recognized in some countries may not be recognized in others. The European Court of Human Rights (ECHR) plays a vital role in protecting the rights of LGBTQ individuals within the European Union, including prohibiting discrimination based on sexual orientation in adoption proceedings. The landmark case of E.B v France (2008) expanded parental rights for the LGBTQ community in Europe by mandating that domestic authorities cannot discriminate based on sexual orientation in adoption proceedings, based on the principle of the “best interest of the child” and the European Convention on Human Rights. The European Convention on the Adoption of Children also prohibits discrimination and supports a broader concept of family, further strengthening support for same-sex families
South Africa, a former British colony, shares similarities with Indian law and has recognized the rights of same-sex couples despite societal prejudices. In the landmark case of Ministers of Home Affairs vs. Fourie (2005), the Constitutional Court rejected stereotypes and validated same-sex marriage, leading to the implementation of the Civil Union Act, 2006. However, discrimination against unmarried same-sex couples in joint adoption remained, which was challenged in Du Tuit and Another v Minister of Welfare and Population Development and Ors (2002). The court ruled that the discriminatory Child Care Act, 1983 must be amended to ensure equality for all community members.
Same-sex couples in the United States were once denied several rights under the Constitution, but the judiciary intervened to eradicate this discrimination. In De Boer v Snyder (2014), the Law of Michigan that prohibited same-sex marriages and joint adoption was declared unconstitutional by the United States Court of Appeals for the Sixth Circuit. The landmark case of Obergefel v Hodges (2015) saw the U.S. Supreme Court declare that discriminating against homosexuals is against the ethos of the Constitution and the value of individual liberty is equal for every individual within society. This judgment paved the way for various judicial pronouncements and legislation legitimizing adoption for same-sex couples.
In the UK, initial adoption laws discriminated against same-sex couples, but the Adoption and Children Act, 2002, allowed unmarried same-sex couples to adopt. Regulations against discrimination based on sexual orientation were introduced, leading to the Equality Act, 2010. Countries have created legal frameworks to protect minority rights despite conservative majority prejudices, in the interests of individual liberty and prohibiting discrimination
According to the Universal Declaration of Human Rights by the United Nations, every individual has the right to marry and form a family, regardless of race, nationality, or religion. Marriage involves emotional and societal norms and it is essential for two people to love and respect each other to form a family and raise children. The notion that same-sex couples are incapable of raising children properly is not only absurd but also an insult to single parents. Children have the right to be brought up in a family where they are loved and treated well. The Juvenile Justice Act mandates that parents who adopt must be physically fit, financially stable, mentally alert, and highly motivated to adopt a child, with no other consideration. The quality of parenting cannot be judged based on the guardian’s sexuality or marital status. It is time for the Indian government to evolve and not mirror social morality. India can learn from other countries that have granted adoption rights to LGBT couples.
- Hindu Adoption and Maintenance Act 1956, §7 and §8(c).
- Guardianship and Wards Act 1890.
- Juvenile Justice (care and Protection of Children) Act 2015, §58(1).
- Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1).
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
- Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
- Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1.
- Meera Emmanuel, “I am also trying to break my own preconceived notions:” Madras High Court Judge while dealing with the plea by a same-sex couple for protection, BAR, AND BENCH, https://www.barandbench.com/news/litigation/preconceived-notions-madras-high-court-plea-by-same-sex-couple