SAME-SEX ADOPTION AND PARENTAL RIGHTS

Authored By: Nitish Gaur

MAHARISHI DAYANAND UNIVERSITY – CPAS, GURUGRAM

ABSTRACT:

In India, the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community constitutes a sexual minority as well as a victim of discrimination on their legal and social identity. They cannot be covered under any legal statues and thus do not achieve the rights to be classified as parents even by adoption or surrogacy – legal rights that the international Jurisprudence assigned as a fundamental human right. Such rights might include the right to adopt-being no less important for an LGBTQ person than for a heterosexual couple, as it represents the possibility of fulfilling the dream of having a family with children.

India has adoption laws, but only some of these are for opposite-sex couples, and these prohibit same-sex couples from exercising their legal right to adoption. These are rooted in a binary understanding of gender, which contravenes Articles 14[1], 15[2], and 21[3] of the Indian Constitution. This paper analyses key court cases that have shaped the LGBTQ rights to adoption in India-from the “Navtej Singh Johar” judgment which led to the decriminalization of consensual same-sex relations and judgments that are streaming along following in the footsteps of expanding non-discrimination and equality rights.

This paper discusses about the harm caused to the LGBTQ regarding many social facts and practices. This paper presents relevant information about the legal landscape of the rights of the LGBTQ community. It is meant to illustrate the need for continuous advocacy and education in making the public sensitive to the reality about LGBTQ adoption rights for purposes of providing a safe and nurturing home to each child regardless of sexual. The adoptive parent’s orientation or gender identity.

INTRODUCTION:

Currently, the Supreme Court of India is focused on the legal position of same-sex marriage in India and this has raised various other significant issues, i.e. ‘can homosexual persons adopt a child?’ Many critics have thought over their thoughts and opinions regarding this issue on different lines and the adoption of a child by homosexual people has emerged as a controversial issue during recent times. While some countries and states have put this to law, allowing adoption by same-sex couples, others have not, refusing to acknowledge the idea of such adoptions. This has all been largely tied to debates on matters affecting legal implications when someone’s application is granted or denied, while also raising ethical considerations in this regard. According to Section 2(2)[4] of the Juvenile Justice (Care and Protection of Children) Act, 2015, adoption is the legal as well as social process in which a parent-child relationship comes into existence. According to laws related to adoption, this process is involving the legal transfer of a biological child from one set of parents or to another single parent.

Unluckily, social prejudices and the absence of child welfare considerations have led to the formation of adoption policies in India. Still, acts like the Juvenile Justice Act, of 2000 have been amended for non-communal and secular considerations, but to make the adoption procedure easier, independent of the communal or religious background of the child and his adoptive parents.

CONSTITUTIONAL PROVISIONS ON LGBTQ +:

Indian Law does not have any specific constitutional provisions for adoption for homosexual couples. It has, however, provided fundamental rights generally for all under the constitution Article 14 (Right to equality) and Article 21 (Right to life and personal liberty), which stop discriminatory practices based on sexual orientation or gender identity. Article 14 guarantees equal protection of the law, and therefore, discrimination in adoption against the LGBTQ+ would be unconstitutional. Article 21 incorporates rights to dignity, privacy, and autonomy that include the right to form intimate relationships. In 2014, the Supreme Court declared transgender as a third gender and thus recognized the rights provided under the Constitution. Still, LGBTQ+ couples are not allowed to adopt and keep children in an anomaly whereby they can be raised as orphans but cannot be raised by same-sex couples. Counting the orphan population of 20 million in India, thus denial of the right to adopt is denying dignity to LGBTQ+, solely on grounds of sexual orientation and not on the capability to parent.

INDIAN LAWS AND HINDERENCES ON LGBTQ+ ADOPTION RIGHTS:

Surrogacy Bill: – Section 2 of the Surrogacy Bill defines a “couple” to be a legally married man and woman, as if marriage is a prior condition to qualify anybody for surrogacy. This denies same-sex couples, who cannot legally marry, the chance to carry a child for another. Such denial makes up a grave injustice and violates the rights of the LGBTQ community.
The Transgender Person (Protection of Right), 2019: This act was passed by the Indian Parliament to protect rights of the community but this Act also has flaws and lacunas as it doesn’t recognize the community’s right of marriage, adoption, and parenting.
Hindu Adoptions and Maintenance Act, 1956: Section 7 and Section 8 of Hindu Adoptions and Maintenance Act, deals with the adoption capacity of Hindu male and female. The words “husband” and “wife” are used under Sections 7 and 8 of Hindu Adoptions and Maintenance Act, implying that the Act does not recognize adoption by same-sex couples. The Act is also silent on “third gender” adoption right.

Moreover, by a superficial reading of the Act, it can be clearly observed that gender is interpreted as binary. Hindu Adoptions and Maintenance Act supports the adoptions of gay and lesbian adoption to a single parent. However, single-parent adoption has various implications to the legal procedure. In this way, a same-sex adoptive parent would have a legal obligation towards the child’s needs and it deprives the other spouse in a same-sex relationship with any right over the child. Thus, it can be concluded that the adoption provisions under Hindu Adoptions and Maintenance Act are discriminatory and violates the adoption rights of LGBTQ.

Juvenile Justice Act, 2015:- The Adoption Rights offered by the Juvenile Justice (Care and Protection of Children) Act, 2015, and Adoption Regulations, 2017, formed by the Central Adoption Resource Authority (CARA), provide the Rights irrespective of religion granted to an individual. According to Section 57[5] of the Juvenile justice Act. 2015 and Regulation 5 of the Adoption Regulation 2017, prospective adoptive parents are required to have at least a stable two-year marital relationship. It excludes same-sex marriages as same-sex marriages are not valid in India. The latest CARA regulations enable live-in partners to be allowed adoption individually, but in a situation where the same-sex couples get legalized, this wouldn’t be easy either as no proper guidelines exist about their being allowed as well. Indian Law Commission recommends that the term “mother and father” ought to be substituted with “parents” in adoption provisions for becoming inclusive of all genders and tackling the issue of discrimination.

CASE LAWS:

Navtej Singh Johar v. Union of India[6]:

In this case the Supreme Court legalized homosexuality by amending the portion of Section 377[7] of the Indian Penal Code, 1860 that makes adult consenting sexual activity in a private setting unlawful. However, the court hasn’t considered the civil rights of the community of the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ). The legal dispute about fundamental civil rights such as the right to marriage and right to adoption that the LGBTQ community deserved just like others has been prolonged for the community. The equally invoked right to adoption is also of heightened significance to the LGBTQ as it is the only feasible opportunity for Gay couples and individuals to have a family and children. Moreover, science has defined that the homosexual parent would take care of a child just as good as the heterosexual Parents. Thus Excluding the LGBTQ community from adoption rights deprives children of potential adoptive parents, which cannot be considered in the best interest of the child. Giving adoption rights this measure would definitely be put to reflect positively upon the number of Childs adopted per year on the LGBTQ community. This paper attempts to discuss the need for granting adoption rights to the LGBTQ Community in India.

Justice K.S. Puttaswamy v. Union of India[8]:

The Supreme Court of India held that the Right to Privacy is an essential ingredient of the Indian Constitution and flows especially from Article 21. It was ascertained in this case that everyone, regardless of gender or sex, has a right to privacy. LGBTQ persons also have the freed-elect whomever they want under the privacy right and this right of the LGBTQ community should be protected by the state.

CONCLUSION:

So, to put it all together, in India, adopting can be quite a lengthy and complicated process for the LBTQ+ Community. Apart from CARA and the Juvenile Justice Act, there are many other laws and policies implemented to see to it that are all regulated properly. Same-sex couples face a lot of challenges in adopting Child due to social stigmas and legal restrictions. Now, awareness and education about the rights of the LGBTQ+ should be promoted with no discrimination against members of that community, based on their sexual orientation. The same-sex couple should have equal opportunities in terms of adopting children and catering to their growing needs like any other prospective adoptive parents.

References