Sexual orientation or marital status cannot be the sole basis for the exclusion of same sex couples from jointly adopting as long as they meet the suitability criteria and can ensure the best interest of the child.
Both Parliament and Supreme Court should consider the best interests of children, as well as the fundamental right to equality and non-discrimination of children and couples identifying as LGBTQI while examining the matter
Written by Swagata Raha
April 20, 2023 07:14 IST
Also by Sreedevi Nair and Ranu Tiwari
Recently, the National Commission for Protection of Child Rights (NCPCR) opposed the granting of adoption rights to same-sex couples and claimed that doing so is akin to “…endangering the children”. On the other hand, the Delhi Commission for Protection of Child Rights (DCPCR) supported the conferral of adoption and succession rights on same-sex couples. Last year, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice emphasised the need for uniform and comprehensive legislation on adoption applicable to all, irrespective of religion, that should also cover the LGBTQI community.
Although it is possible for a single person who may identify as LGBTQI to adopt a child, persons in a non-heternormative relationship cannot jointly adopt a child under Indian laws. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), allows heterosexual married couples, and single and divorced persons to adopt. The Hindu Adoption and Maintenance Act, 1956 (HAMA) permits any male or female Hindu of sound mind to adopt, and for couples to adopt with the consent of their spouse. Both the HAMA and the JJ Act envisage a prospective adoptive couple to be heterosexual and married. In a situation where one partner in a non-heterosexual relationship adopts a child as a single parent, the other partner is deprived of legal recognition as an adoptive parent despite playing an equal role in the child’s upbringing. The child too is denied the rights and benefits that arise within a parental relationship and will not be entitled to the property of the other parent.
Family units are evolving beyond the conventional norms of heterosexual marriages. This was acknowledged by the Supreme Court in Deepika Singh v. Central Administrative Services, (2022) where it observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships” and that these atypical manifestations of familial units are equally deserving of protection and benefits under the law.
In the context of adoption, the United Nations onvention on the Rights of the Child, 1989 requires the best interest of the child to be the primary consideration. The JJ Act defines the “best interest of the child” to mean the basis for any decision concerning children to ensure their “basic rights and needs, identity, social well-being and physical, emotional and intellectual development.” The Adoption Regulations stipulate that the “child’s best interests shall be of paramount consideration while processing any adoption placement.” Indian courts have applied the principle of “the welfare of the child” in the context of adoption, custody, and guardianship cases and arrived at decisions on a case-to-case basis.
The best interest of the child cannot, however, operate in exclusion of other human rights. In Suzanne Du Toit Anna-Marié De Vos v. Minister for Welfare and Population Development and Others, (2002), the Constitutional Court of South Africa held that the exclusion of unmarried same-sex couples who are otherwise suitable to adopt, from jointly adopting children violated the principle of the paramountcy of the best interest of the child, as well as the right to dignity of the parents.
Sexual orientation or marital status cannot be the sole basis for the exclusion of same sex couples from jointly adopting as long as they meet the suitability criteria and can ensure the best interest of the child. The lack of legal recognition of marriage among same-sex couples also cannot be a reason to exclude them, as Central Adoption Resource Authority (CARA) permits applications from adoptive parents in live-in relationships, which it examines on a case-to-case basis. Several countries around the world, including Argentina, Brazil, Cuba, South Africa, the UK and the US have legal provisions to allow unmarried same-sex couples to adopt. More importantly, an adopted child being raised by a same-sex couple through single parent adoption should not be discriminated against and deprived of the rights available to an adopted child raised by a heterosexual married couple. Both the Parliament and the Supreme Court should consider the best interest of children, as well as the fundamental right to equality and non-discrimination of children and couples identifying as LGBTQI while examining the matter.
Raha is Director-Research and Nair and Tiwari are legal researchers at Enfold Proactive Health Tr