In Navtej Singh Johar v. Union Of India[1], Justice D. Y. Chandrachud has remarked “The Constitution assures to every individual the right to lead a dignified life. It prohibits discrimination within society. It is for this reason that constitutional morality requires the Supreme Court to issue a declaration that LGBT individuals are equal citizens of India.” This judgement embarked the journey for LGBT rights in India.
The struggle for LGBT rights can be traced back to British India, when Section 377[2] of the Indian Penal Code, 1860, was enacted which criminalizes any voluntary carnal intercourse against the order of nature. In 2018, after various prolonged legal battles for recognition of LGBT rights, the apex court read down Section 377[3] by decriminalizing same-sex relationships between consenting adults. This judgement commenced a discussion on the recognition of LGBT rights, and how homosexual relationships can be equally treated.
LGBT rights are one of the most neglected topics in the Indian society. LGBT couples have for long been denied their basic human rights on the sole basis of their sexual orientation. Misconception and stereotypes about LGBT people are especially harmful in implementation of their rights. Decriminalizing consensual same-sex relations are not per se enough to ensure the inclusion of LGBT couples in society. To ensure no further discrimination various cardinal rights like marital rights and parental rights should be ensured.
In Navtej Singh Johar, it has been opined that it is the duty of the State to recognize rights which bring true fulfilment to every kind of consensual sexual relationship. Parenting is a cardinal right for an individual, which LGBT couples have been denied for a long time on the sole basis of their sexual orientation. Parenthood is crucial not only for the development of human society but also to bring inclusiveness in an individual. There exist a wide range of reasons why a person wants to become a parent, including love and affection, to have family, societal reasons, continue the human cycle and many more. In order to ensure the right of parenthood for LGBT couples, adoption rights are necessaryAdoption for LGBT couples can not only give LGBT couples the right to become parents but also offer hope for both the orphaned or abandoned child. Legislations are made to protect rights, freedoms and right to live with dignity, and therefore steps should be taken to achieve the same.
LGBT COUPLES’ ADOPTION RIGHTS
In the recent times, LGBT rights have garnered greater discussion and attention. The recent decision of Supreme Court of India to read down Section 377[4] of Indian Penal Code, and legalize consensual same-sex relationships has paved a way for long suppressed LGBT rights. Additionally, homosexuality has been removed from the list of mental disorders, many countries have decriminalized homosexual relationships, and various nations like the Netherlands, Canada, Spain, England and many others have legally recognized same-sex marriages.
On April 1, 2001, the Netherlands became the first country to acknowledge same-sex marriages. This was accompanied by adoption rights as well. With this landmark decision the Netherlands stands by its’ vision to oppose discrimination on the grounds of sexual orientation and achieve social acceptance for LGBT community. The Netherlands has set an exemplary decision for the world by granting marital and adoptive rights to LGBT couples. The recognition of adoptive rights of LGBT couples is cardinal to ensure equality and inclusivity in real terms.
Countless children all over the world are deprived of a family, nourishment and care. By allowing adoption for LGBT couples, we can give a family to both the couple and children. A child’s upbringing plays a cardinal in the overall development of the child. Researches have again and again proved that children raised by LGBT couples are equally competent to those raised by heterosexual couples. The criteria for adoption should be based on the development of child and not the sexual orientation of the parents. Factors like emotional support, environment, nurturing, love and care should be taken into consideration.
In India, adoption has its roots in both cultural and legal ways. Legislations like Guardians and Wards Act, 1890, Hindu Adoption and Maintenance Act, 1956 and Juvenile Justice Act (Care and Protection of Children) Act, 2015 are available for adoption in India. Adoption in India plays a crucial role in building families, changing lives, and offering hope to children in need. Yet issues of child abuse and exploitation, male authoritativeness, lack of uniformity and complexity of the adoptive procedure makes one sceptical regarding the aptness of adoption laws in India. One of the major limitations of adoption legislations in India is that there are no adoptive laws for homosexual couples. Practically, the enactment as well as implementation of adoption laws for LGBT couples is very challenging due to the presence of societal prejudices and attitudes.
The inclusion of homosexual couples for adoption rights will help in achieving the goal of adoption legislations in India and will also help in ensuring equality. We can improve the lives of countless children and promote a culture that values diversity, love, and family in all its forms by widening the pool of potential adoptive parents. To bring true inclusivity in Indian society and save the spirit of constitution, collective efforts for LGBT rights at both societal and legal level should be ensured.
ARGUMENTS FOR
Various legal and other arguments have been presented again and again for the support of LGBT couples’ adoption rights, some of them are:
o Ensures constitutional morality:
Indian constitution enshrines equal citizenship and rights to individuals. It tries to provide a just, compassionate and humane existence for all. Homosexual couples, unlike heterosexual couples have been deprived of the cardinal right of having children and a family of their own. To right to have a child along with the journey of parenthood is a basic biological need of an individual. To deprive LGBT couples from LGBT rights would defeat the spirit of constitution. Therefore, steps should be taken to grant adoption rights for LGBT couples and LGBT couples should also be declared to be equal citizens of India.
o Welfare of child:
When the custody of child is given, Indian legislations emphasises on the welfare of the child. Where the court thinks lies the welfare and development of a child, the custody of child is granted. Like any other couple, LGBTQ+ couples have the ability to give children who are in need of a loving family a stable and nurturing environment. Numerous studies have demonstrated that a parent’s sexual orientation has no bearing on the welfare or development of their child. Just like heterosexual couples, LGBT couples can also provide care, safe environment, support and love needed for development of the child. Adoption rights ameliorate the condition of children, by increasing the opportunity for a safe and lovable home.
o Brings fulfilment to LGBT couples and promotes the Article 21.
Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. Just like other heterosexual couples, homosexual couples should also have the right to have a family. The Universal Declaration of Human Rights[5] also has mentioned that a family is a natural and fundamental cornerstone of a society. Adoption allows individuals and couples to fulfil their desire to become parents and create loving families. Granting adoption rights to LGBTQ+ couples, encourages a society that embraces liberty and inclusion.
Article 21 encompasses and ensures that every individual has the right to live with dignity, and thus allows an individual to have autonomy and self-determination.[6] To summarize, individuals should be allowed to make the personal choices like parenthood and any unreasonable hindrance by the state should be discouraged.
o Inclusive society
Justice D. Y. Chandrachud has remarked that our constitution is founded on a vision of an inclusive society which accommodates plural ways of life.[7] Members of LGBT community are, just like heterosexual couples, entitled to human, constitutional and fundamental rights. Part III of Indian Constitution emphasises on theme of inclusiveness. Indian constitution doesn’t rely on cultural or societal majority, it encourages equality for all in order to make the society liveable for all, i.e. inclusive. By ensuring adoption rights for homosexual couples, we ensure that they are equal members of the society. Adoption rights promote acceptance, empathy, and understanding among all members of society by challenging prejudiced beliefs and promoting an egalitarian culture.
o Ensures equality in diversity:
Sexual orientation is integral to the identity of the members of the LGBT communities. The recognition of LGBT rights has been a pivotal aspect of the fight for equality. With the legalization of homosexual relationships, LGBT couples have started the journey of fight for equality. By grant of adoption rights for LGBT couples, equality is ensured in true terms.
India is known for its diverse culture, and therefore, our constitution has tried to bring equality by granting equal rights. LGBT community is nearly 7-8% of Indian population. They constitute a minority and thus their upliftment is necessary. By granting adoption rights, the diversity of Indian culture can be assured.
CHALLENGES
o Societal Impact including cultural and religious boundaries:
Even though LGBT rights have been recognized legally, LGBT couples still face societal challenges due to presence of existing stereotypes and prejudices. They are faced with unacceptance in society, considered inferior, and in some worse cases even secluded from their homes and society. These challenges arise from deep-seated prejudices rooted in social, cultural, and religious beliefs. When it comes to LGBT couples who want to become parents, they face discrimination in society at various stages.
o Notion of inferior family:
It is a generally accepted norm of society that a family consists of a father, a mother and children. And therefore, they discourage homosexual couples from adopting children. It is argued that a child will have an negative psychological impact if he is brought up by a homosexual couple. It is a paradox, as Indian legislation allows adoption rights for single parents. A partner in a homosexual relationship can still adopt a child as a single parent but joint adoption rights aren’t granted due to existing stereotypes.
o No legal recognition:
Even though homosexual relationships have been decriminalized in India, there still exists a large set of legal barriers which acts as a hurdle for the growth and development of LGBT community. In order to ensure true inclusivity of LGBT couples, various legal rights should be given. Advocacy and legal reforms are critical in addressing these limitations and fostering a society that values equality and inclusion for all couples, regardless of sexual orientation or gender identity.
SUGGESTIONS
Adoption rights for homosexual couples are crucial in order to achieve the goal of Constitution and ensure equality for all. And to achieve this goal there are some few suggestions:
o Civil Unions:
Civil unions can be referred as legal relationships that provide some or all of the legal rights and benefits of marriage without using the term “marriage.” They provide the same legal rights and benefits as married couples, such as inheritance rights, healthcare benefits, tax breaks, and parental rights. Due to the presence of deep rooted stereotypes and prejudices in Indian society, the implementation of marital and adoption rights becomes a difficult task. Therefore, one way of ensuring rights of LGBT couples without challenging the societal norms is by allowing civil unions for LGBT couples. Civil unions can provide same-sex couples with official recognition, allowing them to enjoy legal benefits and obligations related to their partnership.
o Legal recognition:
In India, legal recognition for LGBT couples is limited. No specific law exists to recognise same-sex partnerships or unions. With Navtej Singh Johar judgement, homosexual relationships were decriminalized but no other rights were ensured for the protection and recognition of the same. There are no marital or adoption rights for LGBT couples. It will take collective efforts from the people to provide education and help in betterment of these rights which homosexual couples have been deprived for a long time. In order to achieve this goal, amendments should be introduced in existing legislations, new legislations especially for the betterment of homosexual couples should be enacted, use of gender neutral terminology should be promoted and lastly courts should take active steps for the protection of rights of LGBT couples.
o Education and awareness:
Education is critical to the enhancement of LGBT couples because it fosters understanding, promotes inclusivity, and challenges stereotypes and discrimination. Education can play a critical role in promoting acceptance, challenging discrimination, and uplifting LGBT couples in society by incorporating inclusive education practises, raising awareness, and fostering a supportive environment. By conducting LGBT-related workshops, seminars, and awareness campaigns for students, parents, and staff myths can be dispelled, accurate information can be provided, and can also address any stereotypes or misconceptions about LGBT couples.
CONCLUSION
Family is a biological necessity for an individual. Depriving a sexual minority of the right to have a child is against the morality of constitution. LGBT couples for long were deprived of their human rights on the basis of their sexual orientation due to the presence of existing discrimination and stigma of the society.
Homosexual couples, just like heterosexual couples, should be given the love and affection of a family. Adoption rights for homosexual couples are a win- win situation for both the couple and deprived children. LGBT couples are equally competent to adopt a child. They can equally provide the love and affection a child needs for his development. By granting adoption rights for homosexual couples, many homeless and vulnerable kids can get the love and affection of a family.
[1] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[2] Indian Penal Code, 1860, §, 377.
[3] Indian Penal Code, 1860, §, 377.
[4] Indian Penal Code, 1860, §, 377.
[5] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 24 June 2023].
[6] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[7] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
Author: Parul Gupta
Juris Centre 