A Step Towards Equality - Adoption And Parenting Rights For LGBTQ+ Individuals In India
Author: LawSphereX
Category: Family & Personal Law
Published:
Updated:
A STEP TOWARDS EQUALITY: ADOPTION AND
PARENTING RIGHTS FOR LGBTQ+ INDIVIDUALS IN INDIA
Saumya Anand, Presidency University
ABSTRACT
The people belonging to LGBTQ+ community are a part of minority group in India. The homosexual couples as well as the Queer, Transgenders have been treated differently from the time immemorial. They face discrimination on the grounds of their sexual orientation, the peopled from LGBTQ community are denied of their civil and social rights and basic human rights. Various Supreme Court judgements like Navtej Singh Johar case and National Legal Service Authority v Union of India1 recognised their rights and identity but still a huge milestone needs to be covered. There is no legal acceptance of same-sex marriage in India which creates a problem for the homosexual couples to adopt a child. Also the present Adoption laws in India only allow the heterosexual couples and ‘single’ individuals, there is no explicit law for the homosexual couples.
Equal Adoption rights needs to be guaranteed to the homosexual couples also, as denying them of their ‘right to adopt’ is in strict violation of their fundamental rights. The Indian Judiciary needs to acknowledge the rights of the LQBTQ community, surpassing the conservative religious beliefs and social stigma. Keywords: homosexuality, LGBTQ+, civil rights, minority
1 National Legal Service Authority v Union of India (2014) SC
1863 INTRODUCTION
The adoption and parenting laws in India majorly is being regulated by the personal laws such as The Hindu Adoption and Maintenance Act, 1956. India is a diverse country with multilingual and multi-ethnic society where only the Heterosexual couples and single parents are allowed to adopt children legally. With the evolving society, the rights of the people from the LGBTQ+ community has been widely accepted across the globe. After the landmark judgement of Navtej Singh Johar v Union of India2 in which the constitutional validity of section 377 of the Indian Penal Code was determined, and it decriminalized the consensual sex between all adults including homosexual couples. After this landmark judgement the transgender peoples were acknowledged as the ‘third gender’.
Even though India has witnessed these advancements in the legal and social arena, there is still no legislation that talks about the marriage between homosexual couples and their legal rights related to adoption and parenting. Although the “Transgender Persons (Protection of Rights) Act3 gives transgender people the right to adopt, there is no explicit law that permits same sex couples or LGBTQA+ people to adopt. ”4 However the single individuals from this community have not been prohibited to adopt. There have been several occasions where the people from the LGBTQ+ community confront the Indian Legislative system regarding their rights, giving them adoption and parenting right is one of them. Experiencing parenthood is one of the most essential element of one’s life and everyone has right to become parents. “Ashok A.
Desai, J, (1998) said the right to have size of a family according to one’s own choice is comprehended within the concept of human dignity, since the impugned provisions, namely, Hindu Adoption and Maintenance Act, 1956, Sec 11 (i) prevent such right, they are violative of the constitutional guarantee5”. Under Article 21 of Indian Constitution the individuals have been provided with the fundamental right of life and personal liberty, which constitutes the right to marry the person of one’s own choice.
2 Navtej Singh Johar And Ors.v Union of India (2018) SC 4321, (2018) 1O SCC 1
3 The Transgender Persons ( Protection of Rights) Bill, 2016
4 A Adhira, “Adoption Rights for LGBTQIA+ Community in India
A Critical Analysis of the Family Law System’’ (2023), 5 (2), Indian Journal of Law and Legal Research accessed on 7 July 2024
5 Ahona Pal, ‘Fundamental Right To Adopt
A Critical Analysis Of Competency Of Persons In Adoption Process’ ( iPleaders, 24 March 2017) accessed 7 July 2024 Right to marry and form a family is also inalienable Human Right mentioned under the provisions of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and European Convention on Human Rights. These conventions on Human Right also protects the basic inalienable rights of individuals and ensures that no discrimination shall be made on the grounds of caste, sex, religion, colour etc. India is a democratic country and a signatory of UDHR and ICCPR, ensures and guarantees basic human rights for its citizens through provisions enshrined in its Constitution. Indian Constitution ensures that all the citizens must be treated equally without facing any discrimination on the grounds of caste, sex, religion etc.
But despite of these laws and provisions the LGBTQ+ community faces numerous challenges and discrimination on various ground. All Indian citizens have right to be treated equally leaving aside their gender identity and sexual orientation. Forbidding the people from LQBTQ+ community from the right to adopt will leave a huge room for injustice, as being the citizens of India they have all their fundamental rights guaranteed and protected. Various developments have been made in the Indian provisions and Judicial decisions in this regard but more progress is needed to be achieved in creating a genuine society, where right of each and every individual is protected. EVOLUTION OF LGBTQ+ RIGHTS IN INDIA The Lesbian, Gay, Bisexual , Transgender, Queer community is the sexual minority in India, which has been unfairly discriminated in legal and social identity since time immemorial6.
Section 377 of IPC criminalized the penetrative sexual activity amongst the homosexual couples, calling them in the category of non-traditional and unnatural activity. The begging of battels for the rights of LGBTQ community started in the 1990s, but after more than 80 years in the case of Naz Foundation Govt. v. NCT of Delhi7 major developments in this regard started taking place. NAZ FOUNDATION GOVT. V. NCT OF DELHI, 2009 In this case, a petition was filed by the Non-Governmental organization Naz Foundation 6 Gaurav Balpande, “A Case for Adoption Rights for LGBTQ Community in India” (2021) 4 (6) International Journal Of Law Management & Humanities accessed on 3 July 2024
7 NAZ FOUNDATION v Govt of NCT of New Delhi and ors (2009) WP ( C) No. 7455/2001
challenging the constitutional validity of section 377 of IPC. They contended that this section is violative of fundamental rights of right to equality, right to privacy and dignity, right to life and liberty also the freedom of expression. In this case, chargers under section 377 was imposed by the Lucknow Police on impression of them being homosexual individuals. The police also arrested more than 9 men who were running an NGO, working to create awareness regarding sexually transmitted diseases and accused them of running a sex racket. Finally, in the year 2009 the Delhi High Court held that section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. 8 This section was said to be in direct violation of Article 14, 15, 19 and 21 of the Indian Constitution.
SURESH KUMAR KOUSHAL vs NAZ FOUNDATION, 2013 After the judgment of the High Court of Delhi on illegalizing Section 377 of IPC, an appeal was filed before the Apex Court of India by various individuals and religious groups to reconsider this decision. After the 8 years of long struggle, this section of IPC was again recriminalized and made homosexual intercourse an offence. The Court in this case held that the people belonging to LQBTQ+ minority constitute a ‘minuscule minority’ and they shall not be provided with constitutional protection and hence section 377 of IPC can not be held violative of anyone’s fundamental right. This judgement was highly criticised and opened a new path for activist movement in India. This judgement clearly discriminated the homosexuals and deprived them of their basic human rights. NATIONAL LEGAL SERVICE AUTHORITY v.
UNION OF INDIA, 2014 The transgender people from the LGBTQ community have suffered the most, as their social, economical and educational rights were not recognized previously. They were treated as inferiors and untouchables and from the time immemorial have been exploited in many ways. In this case, the Apex Court of India created a status of ‘third gender’ for the transgenders and 8 Yatin Gaur, ‘Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal’ ( iPleader 21 June 2020) accessed 5 july 2024 they were being guaranteed with the basic human rights. After this judgement non recognition of third gender and forcing them to identify themselves as heterosexual individuals will be the violation of their fundamental rights.
The court in this case recognised the difference between sex and gender, the biological characteristics of an individual is different from its psychological and emotional sense of sex. Sex attributes to the physical appearance and biological factors of an Individual such as genitals, chromosomes etc whereas the term gender is broader in senses and inclusive of one’s psychological and emotional factors. K. S PUTTASWAMY v UNION OF INDIA, 2017 Here, the judgement of Supreme Court in the case of Suresh Kumar Koushal v Naz foundation was argued before the Supreme Court on the grounds that section 377 of IPC constitutes to violation of the fundamental right of right to privacy and dignity. In this case Section 377 of IPC was disputed in context of right to privacy.
The court in this case held that the people from LGBTQ community shall not be deprived of their fundamental rights on any grounds. The ground of ‘minuscule minority’ was highly criticized in this case. In this case it was held that one’s sexual orientation is subject to privacy. NAVTEJ SINGH JOHAR v. UNION OF INDIA, 2018 After re-criminalising Section 377 of IPC India witnessed a huge protest for the rights of LGBTQ community. A petition was filled in the Apex Court of India testing the constitutional validity of section 377 by the prominent dancer Navtej Singh. Finally, in 2018 the Supreme Court decriminalised homosexuality. The court unanimously ruled that section 377 is unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity9.
A major milestone has been covered in the area of guaranteeing social and civil rights to the people of LGBTQ community, but more developments and progresses needs to be made in this 9 Yatin Gaur, ‘Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal’ (iPleaders, 21 June 2020) accessed 5 july 2024 regard. DISCRIMINATION BASED ON SEXUAL ORIENTATION The Preamble of Indian Constitution declares it to be a sovereign, socialist, secular, and democratic republic, which has it’s main objective of securing the justice, equality and liberty of it’s citizens. Equal treatment and preservation of Constitutional rights of all citizens have been outlined in Article 19, 20, 21, 21A, and 22, no discrimination shall be made on the grounds of anyone’s sexual orientation or gender identity.
Article 14 of the Indian Constitution guarantees equality to every citizen, whereas Article 15 ensures that no discrimination shall be made on the grounds of religion, caste, race, sex etc. Despite of having these rights, there have been several instances where the people from LGBTQ+ community face discrimination due to social and religious factors. The rights of the same sex couple or the people from LGBTQ+ community regarding the parenting and adoption right has not been expressly mentioned in the Constitution. But under Article 14 of the Indian Constitution any discrimination based on the grounds of sexual orientation or gender identity would be considered as violation of one’s fundamental right. Article 15 and 16 forbid discrimination against any citizen based on a list of specified reasons, which includes ‘’sex’’10.
Under Article 21 of the Indian Constitution which includes right to dignity and privacy and forming the relationship based on one’s personal choice is subject to right to privacy and dignity. Article 23 of the Indian Constitution protects the citizens from any kind of exploitation and immoral behaviour. In the Supreme Court of India, a majority of the opinion refused to strike down the Central Adoption Resource Authority (CARA) regulations that restrict the queer from joining in adopting a child, while it noted that these discriminations are violative of Article 14 and the majority of opinion did not support adoption rights for same sex-couples, citing the need to explore all areas for the benefit of children in need for stable homes. 11 Under Adoption Regulation Act 2017, only heterosexual couples having a stable conjugal relationship for at least two years are allowed to adopt.
It does not recognise the homosexual couples. 10 Forum IAS, ‘Rights of Sexual Minorities in India (LGBTQ+ Rights): Status and challenges- Explained, pointwise’ ( Forum IAS, 1 December 2022) accessed 7 July 2024 11 Drishti IAS, ‘LGBTQ+ Rights in India: The Supreme Court’s Verdict’ ( Drishti IAS, 23 October 2023) accessed 7 July 2024 The couples from the LGBTQ+ community is the sexual minority in India who face a lot of discrimination in the legal and social spheres. The adoption and parenting laws in India is based on the binary understanding of the gender which is highly violative of Article 14 and 15 of the Indian constitution. The term “gender” not only refers to the characteristics of man and a women but it is inclusive of the deep psychological and emotional sense of one’s sexual identity.
We can not discriminate and treat people differently just because their psychological sense of sexual identity does not adhere to the stereotypical division of binary genders. It is the duty of the Indian Judiciary to protect these civil rights, such as, right to marry and right to adopt of the LGBTQ+ community. ADOPTION LAWS IN INDIA Adoption is a legal process of accepting and taking responsibility of the child by binding him to a family. According to Section 2(2) of the Juvenile Justice Act12 , adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the biological child. 13 In India a variety of personal laws that regulate the process of adoption, such as Hindu Adoption And Maintenance Act, 1956 etc.
In cases of Muslims, Christians and Parsis the adoption process is being regulated by the Guardians and Wards Act, 1890. But this statue does not creates the status of “adoptive child”, but makes the child a ward till the age of 21 years, after that the ward will be treated as an independent individual. In India, an Indian couple, or an unmarried Indian individual, or any Non-Resident Indian or any other person of different nationality are allowed to adopt by adhering to certain guidelines provided. Under HAMA14 • Any male Hindu who is not insane and minor may adopt a child and in case he is married then he may adopt a son/daughter with the consent of his wife (if she is eligible to provide consent).
12 Juvenile Justice (Care and Protection of Children) Act, 2015, Section 2(2)
13 Astitva Kumar, ‘An analysis of adoption under the Juvenile Justice ( Care and Protection of Children) 2015’( iPleaders, 12 August 2021) accessed 6 July 2024
14 The Hindu Adoption And Maintenance Act, 1956
Any female Hindu who is of sound mind and has attained majority, is unmarried, and in case married, is a widow or is divorced, may adopt a child. Here the term “Hindu” is inclusive of Sikh, Jain and Buddhist. The Central Adoption Resource Authority under Juvenile Justice Act 2015, provides everyone right to adopt without any discrimination. Under this Act, a couple can only adopt if they have established a conjugal harmony for at least 2 years. The Juvenile Justice Act only allows married heterosexual couples whereas The Adoption Regulation Act and HAMA allows the single individuals the right to adopt. The Transgender Persons ( Protection of Rights) Act gives the transgenders the right to adopt, but there is no explicit law that permits same-sex couples or LQBTQ+ people to adopt15
CHALLENGES
FACED BY THE LGBTQ COMMUNITY DURING ADOPTION IN INDIA There is no explicit law in India that allows the homosexual couples to adopt, but the transgenders under the Transgender Person ( Protection of Rights Act) 16 gives the transgenders the parenting and adoption rights. The Juvenile Justice Act 2015 acknowledges the adoption by the married heterosexual couples only whereas under HAMA the adoption by single unmarried individuals have also been recognised. But there is no law regulating the adoption by the homosexual couples. In India only the single individuals from LQBTQ community but not the same-sex couples jointly as parents. Same-sex marriages are still not recognized by the Indian laws creating problems for the same sex couples to adopt a child legally.
In case of Supriyo v Union of India17 the Supreme Court held that in order to adopt a child the parents need to be a heterosexual couple.
15 A Adhira, “Adoption Rights for LGBTQIA+ Community in India
A Critical Analysis of the Family Law System’’ (2023), 5 (2) , Indian Journal of Law and Legal Research accessed 5 july
16 The Transgender Persons ( Protection of Rights) Bill, 2016
17 Juris Centre, ‘A Legal Study on Issues Faced by LGBTQ During Adoption
In Respect to Human Rights and Adoption Laws in India’ ( juris Centre, 16 October 2023) https://juriscentre. com/2023/10/16/a-legal-study-onissues-faced-by-lgbtq-during-adoption-in-respect-to-human-rights-and-adoption-laws india/#:~:text=Article%2014%20of%20the%20Constitution,gender%20identity%20would%20be%20illegal. > accessed on 5 july 2024 India is a diverse country, people follow and practise a huge number of religious beliefs and customs. Due to conservative religious beliefs it is very hard for the LQBTQ community to get recognition in the Indian society. Adoption centres with religious foundations and few states restrict the adoption by same-sex couples on the grounds of religious freedom. Various individuals from LGBTQ community face discrimination in their own family itself.
Various Indian families deny to recognize their emotional and psychological status due to the social stigma. They are forced to act normally as a heterosexual individual. The non-acceptance of same-sex marriages by the families and society create a huge barrier in protecting them from being discriminated.
CONCLUSION
The term ‘sex’ is different from ‘gender’, sex basically defines the biological characteristics such as genital, chromosomes etc, whereas the term gender is inclusive of one’s emotional and psychological sense of identity. According to Article 14, 15, 19 and 21 of the Indian Constitution, as interpreted by the judiciary, no discrimination shall be made on the basis of anyone’s sexual orientation. The people from the LGBTQ+ community are being denied of their civil and social rights. In the country like India despite of several developments still the LGBTQ community are treated differently. Same-sex marriage is still a social stigma and has not been recognized by the Indian laws. As a result, the homosexual couples are restricted to adopt a child legally because the present adoption laws only allows the heterosexual couples and ‘single’ individuals the right to adopt.
Adoption Laws are meant to be made for the welfare of the children and providing them with a family and support. The sexual orientation of the individual should not question they ability to provide proper care and support to the child. The Homosexual couples should not be denied to adopt a child on giving the contention of their sexual identity. These kinds of discrimination on the social and legal level is in contravention of their fundamental rights and they are also denied of their basic human right. The legislation and the judiciary needs to work on the recognition of their rights otherwise their struggle for the recognition of rights will go on.