Same–Sex Adoption and Parental Rights in India
Date: 29/05/2024 Done by: Sorna M
Navtej Singh Johar and Others v. Union of India marked the landmark event of legal recognition of same-sex relationships. There has been massive progress in terms of decriminalising homosexuality by striking down section 377 of the Indian Penal Code. The court held that Section 377, insofar as it criminalised consensual sexual acts between adults in private, violated Articles 14, 15, and 21 of the Indian Constitution, which guarantee the rights to equality, non-discrimination, and personal liberty, respectively.
However, despite the decriminalisation of same-sex relationships, Indian laws continue to discriminate against same-sex couples in adoption and marriage rights. Existing legislation fails to evolve with societal changes and constitutional values, violating fundamental rights to equality, non-discrimination, and personal liberty.
There is a lack of legislative reforms or societal acceptance of the matter, making legalisation problematic. Same-sex adoption and parental rights in India are an evolving area of law and policy. There are primarily four statutes that govern and regulate marriage relationships, adoptions and custody in India
- The Hindu Adoption and Maintenance Act, 1956
- The Guardianship and Wards Act, 1980
- The Juvenile Justice (Care and Protection of Children) Act, 2000
- Central Adoption Resource Authority Regulations
The Hindu Adoption and Maintenance Act of 1956 allows single individuals to adopt, provided they are of sound mind and have reached the age of majority. However, the Act does not traditionally recognise same-sex couples under its potential adopters, and the language used implies a heterosexual relationship set-up.
Similarly, the Guardian and Wards Act of 1890 allows single individuals to become guardians, but it does not recognise same-sex couples as co-guardians or co-parents. Therefore, it is not possible for a homosexual couple. This deprives same-sex couples of a family status, which is both violative of Article 15 and makes it difficult for them to live with dignity.
On the brighter side, the Juvenile Justice Act 2000 is more inclusive. It allows for adoption by single individuals irrespective of their sexual orientation, but it remains silent on the rights of same-sex couples to adopt jointly.
As defined under Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, adoption enables a biological child of one set of parents to become the child of another or single parent. The difference between the status of children adopted or born to an individual is sourced from the amendment introduced in the Juvenile Justice Act, 2000, which was conducted to secularise the Act while permitting full adoptions without regard to the individual religions. As for rights, privileges, and relationships, the gap created in this area was filled by the Juvenile Justice (Care and Protection of Children) Act, 2006, wherein adopted children have been accorded the same rights and privileges as biological children.
Central Adoption Resource Authority, or CARA, is an agency of utmost importance in the adoption scenario in India. Under the Ministry of Women and Child Development’s purview, it has its specific guidelines. While not expressly denying the possibility of same-sex adoption under the CARA Regulations, it does not actively facilitate it either. There exists an eligibility for prospective adoptive parents under Section 5, a stipulation of at least two years of continued cohabitation to determine suitability for eligibility for couples, which excludes same-sex couples as their marriages are not recognised in India.
Same-sex couples do not enjoy the right to marry in India. Legal recognition of same-sex marriages and adoption rights would not only affirm the dignity of LGBTQ+ individuals but also provide better opportunities for orphaned children to grow up in nurturing families. Making it necessary for a couple to stay married to adopt jointly indirectly disallows same-sex couples as their marriages don’t enjoy legal recognition or validity. Therefore, adoption laws in India violate Fundamental rights under Article 15.
The LGBTQIA+ face significant challenges in various forms of biological parenthood and Surrogacy. Altruistic surrogacy is forbidden for homosexual couples under the 2021 Surrogacy Regulation Act. This contributes to the stereotypical perception of a family by assuming a heteronormative household dynamic and a lack of female autonomy. According to Indian law, societal norms, and religious doctrine, a child’s holistic development requires that both parents come from different sexes. This idea is based on hypocrisy because it allows widowed and divorced women to use ART services. This is discriminatory and disallows surrogacy for members of the LGBTQIA+ community.
However, the social views and acceptance of this topic are changing with more judicial support. Despite the lack of legislative reform, the judiciary has tried its best to uphold justice.
Arun Kumar Sreeja v. Inspector General of Registration, 2019
The Madras High Court recognised a marriage between a cisgender man and a transwoman, affirming that the term ‘bride’ in the Hindu Marriage Act includes transgender persons. This decision highlighted the judiciary’s evolving stance on LGBTQ+ rights.
Laxmi Kant Pandey v. Union of India, 1984
This case underscored the child’s right to a family, advocating for policies ensuring children develop in a healthy and dignified environment, which could support arguments for same-sex adoption.
Indra Sarma vs . V . K . V . Sarma, 2013
This case broadened the scope of the Domestic Violence Act of 2005 by including unmarried couples and couples in a live-in relationship in the definition of a family for the act. Couples who live under the same roof, perform chores together, and live in a relationship in the nature of a marriage are considered a family under this act.
Suresh Kumar Koushal v. NAZ Foundation,2023
The Suresh Kumar Koushal case highlights the evolving judicial perspective on LGBTQ+ rights in India and underscores the importance of constitutional rights in protecting minorities.
Communities. The ultimate decriminalisation of Section 377 represents a critical milestone in India’s fight for equality and justice.
The Supreme Court’s decision was met with widespread criticism and protests from LGBTQ+ activists, human rights organisations, and the broader public, who viewed it as a setback for human rights in India. Several review petitions were filed against the Supreme Court’s judgement. However, these petitions were initially dismissed. Subsequently, curative petitions were filed, the last judicial resort in India. The Supreme Court admitted these petitions, and the matter was referred to a larger bench in Navtej Singh Johar.
Supriyo @ Supriya Chakraborty & Anr v. Union of India, 2023
In this case, the Supreme Court of India unanimously determined that the Constitution does not guarantee an unqualified fundamental right to marry. The Court upheld the constitutional validity of Section 4 of the Special Marriage Act (SMA) and Section 4 of the Foreign Marriage Act (FMA), which only recognise heterosexual marriages.
The court held that the right to relationship for queer couples might exist but asserted that the judiciary could not create a right to marry without a corresponding statute. The case originated from multiple petitions filed in Indian High Courts seeking legal recognition for the marriages of LGBTQIA+ couples. The Supreme Court consolidated nine similar petitions from the Delhi and Kerala High Courts and referred them to a constitutional bench.
The Court concluded that the right to marry is not a fundamental right and upheld the SMA and FMA provisions. It noted that invalidating these progressive laws would strip various couples of their legal benefits, including those in inter-faith, inter-caste, and international marriages.
The Supreme Court held that integrating queer unions into existing marriage laws would intrude into the State’s legislative domain, necessitating state-made laws to recognise LGBTQIA+ marriages. Additionally, the Court held that not extending marriage rights to LGBTQIA+ individuals does not infringe on their rights to privacy, autonomy, and dignity.
REFERENCES
- The Hindu Adoption and Maintenance Act, 1956
- The Guardianship and Wards Act, 1980
- The Adoption Regulations, 2017 (Central Adoption Resource Authority Regulations)
- https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
- The Juvenile Justice (Care and Protection of Children) Act, 2015
- The Surrogacy Regulation Act, 2021
- https://timesofindia.indiatimes.com/india/from-same-sex-marriage-to-adoption-rights-for- queer-couples-key-takeaways-from-sc-verdict/articleshow/104502058.cms
- https://economictimes.indiatimes.com/news/india/unmarried-couples-including-queer-co uples-can-jointly-adopt-child-cji-in-minority-verdict/articleshow/104505574.cms?from= mdr
- https://ijalr.in/volume-3/issue-1/legal-status-of-adoption-by-same-sex-couples-in-india-an around-the-world-a-critical-analysis-by-shraddha-formula/
- https://cjp.org.in/a-case-for-same-sex-adoptions/