How Far Are We From Granting Adoption Rights for Same-Sex Couples in India?

Among everything else against same-sex love in India, adoption rights for same-sex couples is a utopia. Although the institution of marriage is blotted with patriarchal notions of society, it is necessary to access certain rights.  Hence, it is a non-negotiable and compulsory contract with the self and the state. Unfortunately, however, India hasn’t recognised same-sex marriage yet, let alone adoption rights for same-sex couples. Rhythm Kalra asks when will India extend adoption rights for same-sex couples in India.

adoption rights for same-sex couples
Illustration by Ping Zhu. Source: The New York Times Magazine

By Rhythm Kalra, a first-year student of law at the Faculty of Law, Delhi University

Introduction

‘Family’ is a group of persons united by the ties of marriage, blood, or adoption, constituting a single household and interacting with each other in their respective social positions.[1]

In India, these rights are provided only to heterosexual couples. However, when it comes to same-sex relationships, they can cohabit and enjoy the right of companionship through live-in relationships; they can not get married, adopt or have a child through surrogacy.

Without these rights, the conventional understanding of ‘family’ is incomplete. Even after the decriminalisation of Section 377, anyone defying the heterosexual norms is ostracised.  Often this ostracisation is hinged on outdated notions of normality and family. The stigma around same-sex love is so rigid that it usually takes over human rights.

It’s been three years since Navtej Singh’s judgement[2] decriminalised same-sex love. Yet, there has been no active pronouncement of rights for same-sex couples. The Court, through the judgement, had stated:

“Decriminalisation is a first step. The constitutional principles on which it is based have an application to a broader range of entitlements.”

Despite the progressive stance of the Navtej judgment, Indian society and legislation are far from taking further steps to normalise same-sex love and non-binary genders.

This article will discuss how the current Indian adoption policies are exclusionary of same-sex couples. While acknowledging the situation of other commonwealth countries where LGBTQ couples have equal adoption rights as heterosexual couples, this paper will also analyse India’s stance and steps to overcome such archaic notions.

Current Status of Same-Sex Relationships

After Navtej Singh’s judgement[3], Section 377 of the Indian Penal Code got decriminalised, in so far, as consensual sexual conduct between adults of same-sex is concerned. However, the fight for legal and social acceptance is still going on. This is because they don’t have the privilege to fundamental civil rights like marriage, maintenance, adoption, succession, and other economic benefit schemes available only to married couples.

While adjudicating the Navtej case, Justice Chandrachud stated:

“Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity.”

By this, the Court insinuated that people from the LGBTQ community would get equal constitutional rights. Moreover, there’s a scope for expanding their civil rights in the future. But then again, if we look at today’s scenario, the law is still discriminatory, depriving them of, especially, family rights.

Recently the Centre opposed the PIL[4] for same-sex marriage, stating that marriage is essentially a socially recognised union of two persons, socially accepted and regulated either by uncodified personal rules or codified statutory laws. However, same-sex marriage is neither recognised nor accepted in any uncodified personal law or any codified formal law. The Centre also stated:

“in our world, marriage inevitably relies on age-old traditions, rituals, activities, cultural ethos, and social norms, notwithstanding the constitutional approval of the relationship between a biological man and a biological woman.”[5]

When the Centre is still reluctant towards same-sex marriages, how can we expect society to be forbearing?

In a recent interview with The Hindu, Dr Sahil Kumar, Senior Resident, Department of Pharmacology, Maulana Azad Medical College, spoke about his struggles as an openly gay doctor. He stated,

“how for someone who is ‘homosexual’, the sense of belonging is often missing. They go through forms of bullying, and people are afraid of being close to them as if it is a disease they will catch. While there is increased awareness, and people have begun to accept ‘homosexuality’ as a concept, accepting your child as gay is still difficult.”[6]

This statement typifies how Indian society struggles to overcome colonial morality, which draws significance from the binary. Due to these societal norms and narrow mindedness of people, it gets difficult for the LGBTQ community to visibilise themselves.

Indian Laws and Demand for Adoption Rights for Same-Sex Couples

In India, adoption comes under the Hindu Adoption and Maintenance Act, 1956, the Guardianship and Wards Act, 1980, and the Juvenile Justice (care and protection of children) Act, 2000.

Under Hindu Adoption and Maintenance Act, 1956,[7] only married people or single male or single female, governed by Hindu laws, can adopt. Further, those from other religions, like Muslims, Christians, Parsis, and Jews, can become guardians under the Guardianship and Wards Act, 1980[8].

When it comes to the Juvenile Justice (care and protection of children) Act, 2015, one can adopt irrespective of religion.[9] Provisions for the same are laid in Adoption Regulations, 2017, framed by Central Adoption Resource Authority (“CARA”), a statutory body under the Ministry of Women and Child Development. This law does not deliberatively prohibit people of same-sex from adopting. Still, it makes only married couples having at least two years of stable marital relationship eligible for adoption.[10]

Evident from these regulations, marriage is a prerequisite for adoption in most cases. Nonetheless,  since laws do not concern themselves with same-sex marriage and the Centre is disinclined to accept same-sex marriage, it’s a task for such couples to adopt.

The only option they have then is adopting under one of the partner’s names. The same could further intricate matters related to custody and maintenance. There’s no evidence to show that same-sex couples are in any way inferior in parenting to heterosexual couples. On the contrary, recent research has indicated that children raised by same-sex couples are likely to outperform children raised by heterosexual couples at an academic level.[11]

The purpose of adoption is for children to get an amicable environment and family, which allows for their emotional and physical growth. Therefore, the main concern here should be if the child will get a healthy environment or not.

The essential requirement for any child is to have loving parents irrespective of their gender.

Comparison to other commonwealth countries

“Out of the 53 countries in the Commonwealth – a loose association of countries, most of them former British colonies -36 have laws that criminalise homosexuality”.[12]

In contrast, the rest have recognised the rights of LGBTQ persons, and the right to a family is also a recognised right.

In  England, the Adoption and Children Act, passed in November 2002,[13] interpreted ‘couples’ as two people living as partners in an enduring family relationship irrespective of their sex.

In Scotland, the Adoption and Children (Scotland) Act 2007,[14]received royal assent in January 2007, allowing same-sex couples north of the border to adopt children jointly. Finally, In 2013, Northern Ireland laws got amended, allowing same-sex couples to adopt, making it legal nationwide in United Kingdoms.

If the country which per se introduced these stringent laws in the first place can adopt progressive legislation, why can’t India?

Being one of the commonwealth countries, Canada introduced its first provision in 1996, allowing the adoption of children by same-sex couples in British Columbia and later made it prevalent in all provinces by 2011.

Even Australia has been allowing adoption by same-sex couples in some of its territories since 2002. The Northern Territory, the only region that was a little to do so, also allowed it through the Adoption of Children Legislation Amendment (Equality) Bill 2017.[15]

Many countries worldwide have circumvented their archaic beliefs to provide their citizens with the human rights they deserve. But considering India’s situation, it looks like we have a long way to go as even same-sex marriage isn’t yet recognised.

What Can We Do?

Mere decriminalisation of LGBTQ persons won’t do complete justice to the community. Both legal and social acceptance is mandatory, which will emanate from civil rights.

The first step towards ensuring adoption rights for same-sex couples in a nation like India, full of customs and culture, would be legalising same-sex marriage. However, marriage in India is primarily treated as a religious sacrament, governed mainly by personal laws and customs. Therefore, for Indian society to accept same-sex love and marriage, there needs to be a perception overhaul.

By opting for a progressive approach, nowadays, courts are also amplifying the rights of LGBTQ persons. For instance, the recent hearing by the Madras High Court regarding a petition moved by same-sex couples, which sought protection from their family. In hearing the petition, Justice N Anand Venkatesh unlearnt his pre-conceived notions regarding homosexuality.[16]

Even Allahabad High Court protected same-sex couples, it also stated:

“petition highlights the stark reality of the society where the citizens are facing discrimination at the hands of the society only on account of their sexual orientation despite it being well settled that sexual orientation is innate to a human being.” [17]

Further, in National Textile Workers’ Union v. P.R. Ramakrishnan, Justice Bhagwati expressed that law cannot be standing still. It must change with the changing social concepts and values.

It’s time that the law provides the long due rights to the LGBTQ community. Even though society is not ready in this case, the government must end LGBTQ couples’ predicament. Either by introducing a special provision in the Special Marriage Act, 1956 or enacting a whole new law for the LGBTQ community. It could also be made possible by interpreting the word ‘couple’ in such a manner that includes all civil relations in line with it, as done by many countries.

Conclusion

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”[18]

Marriage is something that involves emotions along with cultural and societal norms. When two people come together, it’s essential that they love and respect each other to constitute a family and raise children.

The understanding that same-sex couples can’t raise children properly is absurd and an insult even to single parents. Children have the right to be brought up in a family where they are treated well and loved.

As mentioned in the Juvenile Justice (care and protection of children) Act, 2000,[1] the parents shall be physically fit, financially sound, mentally alert, and highly motivated to adopt a child. And that must be the only concern.

One can’t judge the quality of parenting based on the sexuality or marital status of the guardian. These are the grey areas that the government needs to evolve as well and not mimic social morality. It’s time that India gets inspired by other countries that have given way for adoption rights for LGBT couples.

Endnotes

[1] Barnard, A. John, Family, Encyclopedia Britannica, May 6, 2021.

https://www.britannica.com/topic/family-kinship

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[3] Id.

[4] Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020.

[5] Purnima Ojha, Same-Sex Marriage is not a fundamental right, LAW TIMES JOURNAL (Feb. 25, 2021).

https://lawtimesjournal.in/same-sex-marriage-is-not-a-fundamental-right-delhi-hc/

[6] Kinshuk Gupta, What does it mean to be a gay doctor in India? THE HINDU (May 17, 2021, 2:43 PM). https://www.thehindu.com/society/history-and-culture/gay-doctor-in-india/article34577525.ece

[7] Hindu Adoption and Maintenance Act 1956, §7 and §8(c).

[8] Guardianship and Wards Act 1890.

[9] Juvenile Justice (care and protection of children) Act 2015, §58(1).

[10] Adoption Regulations, 2017, §5(3).

[11] Deni Mazrekaj, Kristof De Witte, and Sofie Cabus, School Outcomes of Children Raised by Same-Sex Parents: Evidence from Administrative Panel Data, AMERICAN SOCIOLOGICAL REVIEW, ( Sep. 28, 2020).

https://journals.sagepub.com/doi/10.1177/0003122420957249

[12] Reality Check Team, Homosexuality: The countries where it is illegal to be gay, BBC NEWS, (May 12, 2021).

https://www.bbc.com/news/world-43822234

[13] Adoption and Children Act 2002, §144(4)(b).

[14] Adoption and Children (Scotland) Act 2007, §29.

[15] Adoption of Children Legislation Amendment (Equality) Bill 2017.

[16] Meera Emmanuel, “I am also trying to break my own preconceived notions:” Madras High Court Judge while dealing with plea by same-sex couple for protection, BAR AND BENCH, ( March 30, 2021, 2:23 pm).

https://www.barandbench.com/news/litigation/preconceived-notions-madras-high-court-plea-by-same-sex-couple

[17] Poonam Rani And Another v. the State Of U.P. And 5 Others, (2021) WRIT – C NO. 1213.

[18] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1).

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