This Article has been authored by Shubhangi Singh is a third year student of National Law University, Jodhpur.
India has a LGBTQIA+ population of 2.5 million according to government estimates. Even though the strength of the community is huge in number, it has always been a victim of social stigma and discrimination. The decriminalization of the draconian Section 377 in 2018 was widely celebrated and perceived as a ray of hope for uplifting the condition of the community in Indian society. But even after two years, the community struggles for basic rights such as marriage and adoption. In 2019, a review plea seeking marriage, adoption and surrogacy rights of the community was dismissed by the Supreme Court. While there is no bar on adoption by the single people of the community, the law of the land is unconducive to adoption by same-sex couples. Even though one of the two partners of the same-sex couple can adopt as a single parent under existing laws, this deprives the other partner of any legal right over the child.
According to a study by UNICEF, there are 29.6 million orphaned and abandoned children in India which is a country with a disconcertingly low adoption rate. However, the willing same-sex couples are still deprived of their adoption rights in the country. This article aims to discuss the need for granting adoption rights to the same-sex couples in India.
What is Adoption?
According to Section 2(2) of Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”) : “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 in India
Adoption in India is governed by the Hindu Adoptions and Maintenance Act, 1956 [“HAMA”] and the JJ Act. Under HAMA, adoption can be undertaken by Hindus, Buddhists, Jains, Sikhs and other religions governed by Hindu Law. While stating the capacity for adoption, Sections 7 & 8 of HAMA use the words “husband” and “wife” which implies that the act does not recognize adoption by same-sex couples. Moreover, capacity for adoption is explained for Hindu males and Hindu females and therefore, there is a grey area regarding application of such laws to third-gender couples.
The JJ Act opens the option of adoption to any person regardless of their religion, with the criteria being through the Central Adoption Resource Authority (“CARA”). CARA is the apex controlling body in adoption matters under the Ministry of Women and Child Development and has framed the Adoption Regulations, 2017(“AR”) which lays down the rules and guidelines for adoption programs in the country. The eligibility of prospective adoptive parents (“PAPs”) is discussed under Section 57 of the JJ Act and Regulation 5 of AR. One of the requirements states that “no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship”. Since same-sex marriages are yet to be recognized in India, it is not possible for same-sex couples to establish two years of stable marital relationship and this renders them ineligible to be PAPs. Moreover, the societal stigma involved with such kind of relationships further discourages the authorities from granting adoption to such couples.
The abovementioned acts are violative of Articles 14, 15 and 21 of the Constitution of India. Article 14 guarantees the right to equality before law and equal protection of law to every Indian citizen. It is fundamental right which is a part of the basic structure of the Constitution. Article 14 aims to strike arbitrariness in state action because any arbitrary actions must necessarily involve negation of equality. The discrimination between the married and unmarried couples for the purpose of adoption does not pass the classification test and is arbitrary as classification is unjust, unfair and unreasonable in nature. Moreover, there is no rational nexus which can be achieved by discrimination between different-sex and same-sex couples on the basis of their sexual orientation as there is no evidence to show that same-sex couples are in any way inferior in parenting as compared to different-sex couples. Research shows that having LBTQIA+ parents does not affect a child at all and in fact, children brought up by same-sex parents perform better during both their primary as well as secondary education.
Article 15 prohibits discrimination on the basis of “sex” which includes discrimination on grounds of sexual orientation as laid down in the case of National Legal Services Authority v. Union of India. Therefore, the right of adoption of the same-sex couples is protected under Article 15 as no discrimination can be made against them because of their sexual orientation and they must be granted adoption rights like different-sex couples.
Article 21 protects life and individual liberty which includes the right to live with dignity as laid down in K.S Puttaswamy v UOI. In the case of Navtej Singh v UOI, the court referred to a Canadian case which stated that human dignity is harmed when unfair treatment is meted out based on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It was also held that the LGBT community has the same human, fundamental and constitutional rights as other citizens do as these rights are inherent natural and human rights and the people of community should not be given step-motherly treatment on the pretext of social morality. The disentitlement of adoption by same-sex couples harms the dignity of the people from the community as it is based on their sexual orientation which does not relate to their capacity or merit as prospective parent.
Adoption by same-sex couples is already allowed in countries like Spain, Belgium, Spain, etc. India is a country which has decriminalized homosexuality in 2018 and the rights of the LGBTQIA+ have been recognized only recently. It has to be noted that both the acts governing adoption came into force at a time when homosexuality was criminalized. Since the position has been legally changed now, there is a requirement for realization of the rights of the community and a treatment which is equal to that of the heterosexual section of the society. Sensitization programs must be encouraged by the governments to eradicate the myths and the societal stigma revolving around the lifestyle and relationships of the people from the community.
The Navtej Singh Johar judgment was a major step towards upliftment of the position of the community in the society but still a lot is required to be done by both the judiciary and the legislature. The state should not only legalize the same-sex marriages, but it should also amend the existing laws to provide legal recognition to adoption by same-sex couples.