Adoption Rights of LGBTQ+ Community
Updated: Jul 19, 2022
Written By: Reet Parihar( B.A.LL.B 3rd year)
“Love, compassion, and comfort are what defines a family, not the genes or gender”
Being a parent is a blessing. Adopting a child is the most honourable act a person can undertake in his lifetime. Giving a child the love, protection, and comfort that he or she deserves is the equivalent of giving him/her a new life. Adopting a child entails dozens of new obligations that must be met to ensure the child's well-being. Adoption in India is subject to several rules and regulations. There are various legislatures for Adoption in India but none of the rules and laws provides the right to adopt a child to LGBTQ couples. In India, only heterosexual cisgender men and women have the right to start a family. Despite its size and strength, the community has always been subjected to social stigma and discrimination. India is a democratic country but there are still regulations and laws that didn’t give the right of being a parent to the LGBTQ community and consider them incompetent.
The legislatures that cover adoption are the Hindu Adoptions and Maintenance Act, 1956 and the Guardians and Wards Act, 1890. If we take a closer look at the Hindu Adoptions and Maintenance Act, [i]Section 7 of the act states that a male Hindu who wishes to adopt a child must be of sound mind and have reached the age of majority. He must have a living wife whose consent is required. According to [ii]section 8 of the act, a Hindu female who wishes to adopt a child must have reached the age of majority and be of sound mind. She must be a widow, divorced, or unmarried. [iii]Section 11 of the act gives rights to Hindu couples to adopt a child. The eligibility of prospective adoptive parents is addressed in [iv]Section 57 of the Guardians and Wards Act. To adopt a child and provide him with a healthy upbringing, the adopted family must be fit and healthy, financially stable, mentally aware, and highly competent, according to this section, and both parties must consent to the adoption. If the terms of the Authority's adoption regulations are obeyed, a single or divorced individual can adopt, however, a single guy cannot adopt a girl kid. Single women and couples who have been engaged for at least two years are entitled to adopt a child of any gender, whereas a single man can only adopt a male kid, according to the Juvenile Justice Act of 2015 and the [v]Adoption Regulations of 2017.
All these legislatures and regulations give the right to adopt a child to a female, a male and a married couple. A transgender and a bisexual person are not allowed to adopt a child as a single parent. On the other hand, a lesbian couple, gay couple or a queer couple also does not have a right to adopt a child as a parent. In India, same-sex marriages are not recognized which makes it more difficult for such couples to just have a thought of having a complete family. The Delhi High Court is currently hearing the case of [vi]Abhijeet Iyer Mitra vs. Union of India, which involves the validity of homosexual marriages. The legislature talks about competent parents in which they only consider males and females that have a straight sexual orientation. The LGBTQ community are not considered competent for being a parent. Despite previous Supreme Court decisions interpreting, article 21 of the Constitution – the right to life and personal liberty – includes the right to motherhood and reproductive autonomy, this does not appear to apply equally to same-sex couples, transgender people, and the LGBTQ+ community as a whole.
The question that arises from this scenario is that does be a member of the LGBTQ community makes you incapable of giving love to a child. There can be no possible reasoning for considering them incompetent. On September 6, 2018, the Supreme Court, in the case of [vii]Navtej Singh Johar & Ors. v. Union of India ruled that part out of Section 377 of the Indian Penal Code (IPC), which criminalized gay sex, violated the constitutional right to equality and dignity but does that change anything concerning the society, people still consider it as a topic of shame to even discuss. Even though Supreme Court has passed the laws, on the ground level the situation is still the same. The people of this community have to face nasty and mean comments now and then. So even if same-sex marriages will be allowed in India will they have the same respect as a heterosexual marriage, the answer to the question is sad no. The mindset of the majority of citizens of India is still in a cocoon in which they are not ready to accept this. Due to this degraded mindset, there is a high possibility that a child adopted by an LGBTQ community will likely face lots of social difficulties.
This is the harsh reality of our society which is needed to be changed. Society will gradually accept queer partnerships and parenthood if the law begins to recognize them. The new surrogacy bill also makes it illegal for homosexual couples to use a surrogate mother to have their children. The bill restricts surrogacy to married Indian couples, effectively disqualifying others based on their marital status and sexual orientation. It was put in place to prohibit the monetization of surrogacy and the potential exploitation of surrogate mothers and children. At the current time having a child is almost next to impossible for an LGBTQ couple which challenges our democratic structure. To be a developed and progressive country, the mindset of its citizens is required to be progressive and free from discrimination.
It can go a long way in changing people's opinions if it's shown in a way that reaches the majority and not only presents LGBT families as normal but also as attractive. Even single parents find the notion that same-sex couples can't raise children properly which is ludicrous and insulting. Children have the right to be raised in a loving and caring environment. Parents must be physically fit, financially stable, psychologically attentive, and eager to adopt a kid. That has to be the only issue. The quality of parenting cannot be judged solely on the guardian's sexuality or marital status.
Love doesn’t have gender bifurcation, it’s a feeling that can be felt by anybody. Every child deserves love and care and that thing should not depend on social taboo which people have toward the LGBTQ community. Educating your inner soul so that society can be free from all discrimination is the most important step towards enlightenment.
It's past time for India to follow the lead of other countries that have allowed LGBT couples to adopt. Passing legislation will be the first stepping stone toward equality in its true means which will act as a precedent for the society.
[i] Hindu Adoptions and Maintenance Act,1956, section 7, No.78, Acts of Parliament,1956(India). [ii] Hindu Adoptions and Maintenance Act,1956, section 8, No.78, Acts of Parliament,1956(India). [iii] Hindu Adoptions and Maintenance Act,1956, section 11, No.78, Acts of Parliament,1956(India). [iv] Guardians and Wards Act,1890. [v] CARA, http://cara.nic.in/PDF/Regulation_english.pdf,(last visited May 10,2022). [vi] Abhijeet Iyer Mitra vs. Union of India, W.P.(C) 6371/2020 & CM APPL.22554/2020. [vii] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.