We are a gay couple, how can we adopt a child in India?
In India, the LGBTQ+ community still does not have the right to marry, and most parents are unable to have children. The right to parenthood for LGBTQ+ individuals is neither recognised nor acknowledged by law or society. Same-sex couples, transgender people, and the LGBTQ+ population as a whole do not appear to have equal rights.
Rule of law
Most family laws and rights in India, such as those relating to adoption, surrogacy, succession, guardianship, and so on, are in some way or another linked to marriage. And, because the LGBTQ+ group has been denied the ability to marry so far, access to all of these other legislation has been restricted as well.
Because members of the LGBTQ+ community are unable to marry, they are compelled to find alternative means of expressing their love, such as adopting under one partner’s name rather than both.
Couples who have been married for at least two years, as well as single women, can adopt a child of either gender, according to India’s Adoption Regulations, 2017, as published on the official website of the Central Adoption Resource Authority (CARA), however a single man can only adopt a male child. Couples in live-in relationships, same-sex couples, and transgender people aren’t mentioned at all, almost as if they don’t exist. Same-sex couples cannot adopt because there is no such provision.
Adoptions by members of the LGBTQ+ community are hindered by more than just government officials. When Maneka Gandhi, the Union minister for women and child development, eased the adoption laws to enable unmarried men and women to adopt in 2015, some adoption agencies were unhappy with the move. We need more clarity on this because there is now nothing in the legislation that expressly prohibits or encourages adoption by LGBTQ+ people.
In India, LGBTQ+ people can adopt, but same-sex couples cannot. You and your spouse may adopt a child separately and raise him or her jointly if you are a same-sex couple, but you and your spouse cannot be the legal parents of that child in India.
By stating that marital status is not taken into account when adopting a child, Indian policy creates ambiguity. However, this rule only applies to single people who want to adopt a child; if a couple wants to adopt together, the law requires a married relationship and both spouses’ permission. Because same-sex marriages are illegal in India, these laws undermine the goal of decriminalising homosexuality by restricting same-sex couples’ civil liberties.
The Hindu Adoption and Maintenance Act, 1956, the Juvenile Justice Act, 2015, and the Adoption Regulations, which prohibit unmarried couples from adopting children, are all in violation of the Indian Constitution’s fundamental rights granted in Articles 14, 15, and 21.
The classification test of Article 14 is not passed by Indian adoption legislation since the unjust classification of individuals generated by these Acts allows for discrimination between married and unmarried couples. There are no reasonable goals that might be met with this classification. It is against the constitutional values of equal protection under the law and equality before the law. The adoption laws are in violation of Article 15 of the Constitution, which guarantees the right to be free from discrimination.
Article 21 of the Constitution guarantees same-sex couples the freedom to live in dignity and honour. It involves the freedom of choice, autonomy, and self-determination for individuals. Marriage is a personal decision, and any regulations that are arbitrary, unfair, or discriminatory against unmarried persons, individually or collectively, are unconstitutional.
Same-sex marriages are prohibited in India, hence homosexual couples are unable to adopt a child together. The law makes it illegal for LGBTQ+ couples to adopt children together, demonstrating that they are still not treated equally in the eyes of the law. As a result, same-sex couples cannot adopt since the child should not be raised in a "inferior family."
Denial of adoption rights to members of the LBTQ community diminishes their dignity since prejudice is focused on their sexual orientations rather than their ability or merit as parents.
Surrogacy
The new surrogacy bill also makes it illegal for homosexual couples to have their own children through a surrogate mother. The bill, which was introduced to prevent commercialization of surrogacy and potential exploitation of the surrogate mother and child, restricts surrogacy to married Indian couples, thereby disqualifying others based on their marital status and sexual orientation.
Issues of adoption and homosexual couples
The Supreme Court of India, in its decision in Navtej Singh Johar, succeeded in shattering the glass ceiling and upholding individual liberties to a large extent. This judgement, however, has problems of its own. While the Supreme Court recognised and legitimised homosexual relationships, it failed to recognise and legitimate the other rights enjoyed by heterosexual couples. One such right was the ability to adopt a child.
Adoption legislation in India is governed by personal laws, although there are also secular laws that protect individuals’ right to adoption. None of these regulations, however, acknowledge the ability of homosexual couples to adopt a child. Because the ‘best interest’ of the child is the most important consideration when dealing with adoption, the couple’s sexual orientation should not be a worry for adoption agencies as long as it does not have a negative impact on the child’s development.
As a result, this is an area that needs to be addressed, and the judiciary or the legislature must issue an order or directive, or pass legislation, to recognise homosexual couples’ rights.
LGBTQ+ people are Indian citizens with equal rights in the socioeconomic, political, and cultural arenas. Every person is treated equally regardless of sexual orientation, gender, or other criteria in our secular, democratic, and republican society.
By enabling only heterosexual couples and single individuals to exercise adoption rights, the Juvenile Justice Act and Adoption Regulations passed in 2015 and 2017 failed to change with jurisprudential and societal growth. These laws are in violation of Article 14, which ensures equality to all people; Article 15, which prohibits discrimination based on race, gender, or sexual orientation; and Article 19, which guarantees freedom of expression. The state should not only allow same-sex marriages, but it should also change existing legislation to recognise same-sex adoptions. If governments approved same-sex marriages and parenting, children who are victims of this pervasive ambivalence would benefit significantly.
If CARA is amended, it will help to bring about a fundamental transformation for the LGBT community, as they continue to struggle to find a place in mainstream society and its view of what is ethically right and wrong. Even though they are now legally permitted to live together and remain as a couple, they are still unable to adopt a child and experience the joy that all other parents do.
Law is dynamic; it evolves in response to changing requirements and demands. The LGBT community’s fight is far from over. They are still fighting for the same benefits and rights as the rest of society. It is critical that the legal authority evaluate and update its laws in order to provide adoption rights to the LGBT community. It’s worth revisiting since it advocates for the rights of those who don’t identify with the male/female gender binary. It’s also a reminder of ‘the right to start a family.’
Sources:
https://www.google.com/amp/s/theprint.in/opinion/where-are-indias-queer-parents/608267/%3famp
https://www.google.com/amp/s/www.lawctopus.com/academike/adoption-rights-for-same-sex-couples/%3famp=1
https://thelogicalindian.com/amp/exclusive/adoption-policy-discriminative-against-lqbtqia/
https://www.google.com/amp/s/www.iralr.in/amp/adoption-by-same-sex-couples-in-india-a-right-long-overdue
https://www.legalserviceindia.com/legal/article-3791-adoption-and-lgbtq-community.html