People from the LGBT community confront numerous legal and societal challenges in India. Adequate legal safeguards have not been established for various concerns, including adoption rights. Single LGBT Indians are not officially prohibited from adopting under current regulations. However, adoption by same-sex couples remains prohibited. Incapacitating adoption by same-sex couples adversely impacts community members’ dignity because it is based on their sexual orientation, which has nothing to do with their capacity or quality as potential parents. -sexual.[1] According to Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act of 2015, adoption is the formal and informal process of establishing a parent-child relationship. According to laws governing adoption, this process entails the legally binding transfer of a biological child from one set of parents to another or to a single parent. Regrettably, social prejudices and a disregard for children’s wellbeing have influenced adoption practises in India. However, changes have been made to laws like the Juvenile Justice Act of 2000 to support secularism and make adoptions easier regardless of the parents’ or the child’s communal or religious roots.[2]‘Homosexuality’ is a sexual orientation typified by sexual desire or romantic love reserved solely, or virtually exclusively, for members of the same sex. The term homosexual literally means “of the same sex,” and is a combination of the Greek prefix homo-, which means “same” (as opposed to the Latin root homo, which means “human”) and the Latin root sex, which means “sex.”[3]
LAPSE OF ADOPTION RIGHTS IN INDIA
The system of adoption in ancient India was guided by the scriptures rather than by codified rules. Hindu authoritative texts first came up for interpretation in the Privy Council during the British era. The adoption regulations of today are clearly a reflection of various Privy Council judgements, and these judgements shaped Hindu adoption policies. The Hindu Code Bill was then presented to Parliament in the Post-Independence Era. It was composed of four components, one of which being the Hindu Adoption and Maintenance Act, 1956.14 As a result, the Hindu Codified Adoption laws are created.[4]
The year 2018 marks the beginning of a new homosexual festival according to Navtej Johor rules. The Supreme Court decriminalised this discriminatory clause, but this festival would be lacking without fundamental or vital rights, so the real question is whether we are moving forward on that front or if we are just handing away empty books without any content. The judiciary has recognised same-sex couples’ rights, but they are only recognised on paper and not in actual practise since the stigma of the people prevents them from exercising their rights. Not all rights, such as those related to family and adoption, are recognised. Even if the rights are acknowledged, they will not be able to exercise them. In a democracy like ours, the government also has a responsibility to end the long-standing conservative taboo against same-sex relationships in society and provide them complete citizenship rights.[5]
The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice stressed the need for standard and thorough adoption legislation that would apply to everyone, regardless of faith, and would also include the LGBTQI community. The Supreme Court stated that “familial relationships may take the form of domestic, unmarried partnerships, or queer relationships” in the case of Deepika Singh v. Central Administrative Services (2022). These units are equally deserving of legal protection and advantages.[6]
CONSTITUTIONAL PROVISIONS AVAILABLE FOR LGBTQ COMMUNITY
The rights of a same-sex couple in relation to adoption are not explicitly stated in the Indian Constitution. However, the Indian Constitution protects all people’ fundamental rights, such as the right to equality, the right to life, and the right to personal freedom. Discrimination based on race, religion, caste, sex, or place of birth is forbidden by the Constitution.
Right to Equality
Article 14 of the Constitution, which stipulates that all people are entitled to equal protection under the law and are equal before the law, enshrines the right to equality. This means that any discrimination in the context of adoption based on sexual orientation or gender identity would be illegal.
Equality of Opportunity and Right against all forms of Discrimination
Articles 15 and 16 forbid discrimination against any citizen based on a list of specified reasons, which includes “sex.” In actuality, both Articles forbid all forms of discrimination based on gender. The fundamental prohibition against sex discrimination was emphasised by the drafters of the Constitution in order to prevent the direct or indirect attitude of treating people differently because they do not adhere to stereotyped generalisation of binary genders. Biological characteristics and gender are separate elements of sex. Gender attributes include one’s character, the deep psychological or emotional sense of sexual identity, and character. Biological aspects, of course, include genitals, chromosomes, and secondary sexual characteristics. In light of Articles 15 and 16, discrimination based on ‘sex’ also includes identity.[7]
Right to personal right and Liberty
The right to dignity, privacy, and autonomy are also guaranteed under Article 21 of the Constitution, which has been interpreted by Indian courts to include these rights. The ability to develop personal relationships, including same-sex relationships, is part of the right to dignity and privacy. The Supreme Court of India declared transgender people to be a third gender in 2014, ruled that they should have access to all constitutional rights, and ordered the government to take action to ensure the welfare and social inclusion of all transgender people.[8]
Right against Exploitation
Beggary and other inhumane behaviours are treated as crimes and are sanctioned by law. Because it encompasses all prohibited forms of discrimination, Article 23 of the Indian Constitution has a very broad scope. Prostitution and other immoral behaviours are typically devalued in society. Everyone has the right to their own personal growth, which can only be protected if there is a right against exploitation that fosters an atmosphere of freedom for the individual. Transgender people are the worst exploitation victims; as a result of their poor economic standing, they engage in prostitution and other immoral acts and are frequently stigmatised by society. The purpose of this Article is to safeguard a person’s independence of identity by avoiding the exploitation of men by men
THE CHALLENGES FACED BY SAME SEX PARENTS
The Central Adoption Resource Authority’s requirements are part of the JJ Act (Juvenile Justice Act), 2015, which gives everyone, regardless of religion, the capacity to adopt. No child shall be placed in adoption to a couple unless they have at least two years of a solid marital unity, according to a requirement in the law. Same-sex couples are unable to demonstrate two years of marital stability in India because marriages between the same sexes are not yet recognised in that country. As a result, they are ineligible. Furthermore, the social stigma associated with these relationships deters the government from approving adoption for such families.[9]
Limitations in the acts
Adopting a child is only possible for one LGBTQI individual. However, it is not possible for two homosexual individuals to “jointly” adopt a child. The Juvenile Justice Act,2015 and the Hindu Adoption and Maintainance act,1956 both stipulate that an adoptive couple must be heterosexual and married. The other partner in a non-heterosexual relationship is denied legal recognition as an adoptive parent when one partner adopts a child on their own.The child will not be entitled to the possessions of the other parent and is also denied the privileges and advantages that come with being a parent.[10] In the recent supreme court judgement, it has been stated that the couple need not be heterogeneous to adopt a child in the case of Supriyo v Union of India[11]
Religious Beliefs
It is frequently noted that, in contrast to sentiments towards heterosexual marriage and adoption, public opinion towards gay sexual relationships is more strongly tied to religious practises and theological conservatism. Despite the huge support provided to same-sex couples, it nevertheless happens frequently that adoption centres with a religious foundation discriminate against same-sex couples by barring them from the adoption process. However, despite the fact that it is unconstitutional for a state agency to deny married same-sex couples the opportunity to adopt, numerous states have passed legislation restricting homosexual adoption on the grounds of religious freedom.[12]
Discrimination
When it comes to same-sex parenting vs opposite-sex parenting, there is no difference. Children with same-sex parents fare no worse than their peers, if not better. However, it doesn’t stop people from disseminating antiquated stereotypes about LGBTQ parents.[13] Both the children and the LGBTQ are prone to face vicious discrimination. The social stigma and the shaming will have its way around the same sex adopted parents and as well people. They are often being discriminated in schools, workplaces and in other social gatherings.
Unsupportive birth parents
Denial is a parent’s initial response when they learn that their child is homosexual or lesbian. They not only reject the reality but also demand that children undergo physical and psychological evaluations. The denial could be brought on by social or religious influences, as well as the idea that the child won’t have a future if they are homosexual or lesbian. Either they persuade or scares the children into getting their act together and acting normally, or they renounce them. since of this, it is challenging for same-sex couples since they lack personal support.[14]
CONCLUSION
The discriminatory adoption laws in India are in violation of the rights protected by Articles 14, 15, and 21 of the Indian Constitution. Citizens of India who identify as LGBTQ couples and individuals deserve equal rights in the social, economic, and political spheres. We can argue that this is the proper time to accept the right to adopt as a basic right since recent Supreme Court judicial trends demonstrate that the court has adopted a more right-based approach to the interpretation of statutes. The right to live comes with the obligation to raise a family. If someone is capable of caring for children, they should all have the same rights to adoption.[15] In the notable case of LK Pandey v. UOI from 1984, the court ruled that the adoption process should not be utilised to fulfil or secure the wishes of the adoptive parents because it is entirely focused on the wellbeing of the child. The Juvenile Justice Act of 2015 (Protection and Care of Children), which clearly states that married couples who have lived together for the past two years are eligible to adopt, governs the adoption process. Indeed, the Indian Supreme Court has recognised the rights of same-sex couples and granted them through the Equal Protection Act. Even after numerous attempts for greater rehabilitation, same-sex couples are still not recognised as couples legally or socially. In order to avoid disgruntlement society must drastically alter its current course. Just allowing same-sex relationships to exist won’t grant them the same privileges as heterosexuals; rather, things like homosexual marriage and homosexual adoption rights will change young people’s perceptions of homosexuality.[16] As long as they satisfy the requirements and protect “the best interest of the child,” sexual orientation or marital status cannot be the only reason someone is prohibited from adopting a child together.
The adoption shouldn’t be rejected because a same-sex marriage isn’t legally recognised. Adoptive parents in cohabiting unions are permitted to apply through the Central Adoption Resource Authority (CARA).
RECOMMENDATION As a contemporary society, we ought to at least give homosexuals the opportunity to demonstrate that they are capable of being loving parents. Having two girls in a house is not all that revolting. One who prefers to stay at home to care for her partner and child and one who wants to work so she can meet her child’s every need. It is not required to be a man to be a role model father; you can be a woman if your child sees you as a father figure who he or she can turn to for support when times are tough. Many women manage the domestic duties and the household budget on their own. We learned of a fresh demonstration every other day where women demanded for equal opportunities and rights to those enjoyed by their male partners. Men want to be directed in today’s rapidly changing world so they can complete household tasks with ease. Males do have feelings; the misconception that they don’t is simply a result of their discomfort expressing them more frequently. So, it will be phenomenal to have two males where one performs the function of a father and the other plays a very important part of a mother. We must give same-sex couples a chance so they can experience the honor that it is to be referred to as parents. Several nations currently permit same-sex couples to adopt. India is a nation that decriminalised homosexuality in 2018 and has only lately recognised the rights of the LGBTQ community. To reduce the social stigma around members of the community, governments must support sensitization programmes.
[1] Sadan, A. and KA, A.A.M., 2021. Adoption Among Homosexual Couples: How Far It Is Recognized In The Current Scenario?.
[2] (2023, March 13). Adoption rights of same sex couple in India. Rest the Case. https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
[3] Tamang, N., 2020. Section 377: Challenges and changing perspectives in the indian society. Changing Trends in Human Thoughts and Perspectives: Science, Humanities and Culture Part I, p.68.
[4] Gaurav Balpande , A Case for Adoption Rights for LGBTQ Community in India, 4 (6) IJLMH Page 1162 – 1171 (2021), DOI: https://doij.org/10.10000/IJLMH.112372
[5] Panchal, Kishor. (2020). Same-Sex Couples Adoptions Rights in India. SSRN Electronic Journal. 10.2139/ssrn.3586147.
[6] (2023, April 20). Why LGBTQIA+ couples should be allowed to adopt. Forum IAS. https://blog.forumias.com/why-lgbtqia-couples-should-be-allowed-to-ad
[7] (2020, September 7). Adoption of Child by Same Sex Couples. The Law Brigade Publishers. https://thelawbrigade.com/constitutional-law/civil-and-political-rights-of-lgbt-the-perspective-of-indian-constitution/
[8] (2023, March 13). Adoption rights of same sex couple in India. Rest the Case. https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
[10] (2023, April 20). Ideas of Parenthood: Why LGBTQIA+ couples should be allowed to adopt? Vajiram and Ravi. https://vajiramias.com/article/ideas-of-parenthood-why-lgbtqia-couples-should-be-allowed-to-adopt/64412462c302e75fc5584c2d/
[11] Supriyo v union of India
[12] L. M. (2021, July 5). Adoption of Child by Same Sex Couples. Law Bhoomi. https://lawbhoomi.com/adoption-of-child-by-same-sex-couples/#Issues_Face
[13] (n.d.). 7 Unique Challenges LGBT Parents Face in Adoption. Considering Adoption. https://consideringadoption.com/7-unique-challenges-lgbt-parents-face-in-adoption/
[14] (2021, July 5). Adoption of Child by Same Sex Couples. Law Bhoomi. https://lawbhoomi.com/adoption-of-child-by-same-sex-couples/
[15] Gaurav Balpande, A Case for Adoption Rights for LGBTQ Community in India, 4 (6) IJLMH Page 1162 – 1171 (2021), DOI: https://doij.org/10.10000/IJLMH.112372
[16] (n.d.). Same-sex couple adoption rights in India. The Amicus Curie. https://theamikusqriae.com/same-sex-couples-adoption-rights-in-india/
Author: Triveni T
Juris Centre 