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Adoption Rights of Same-Sex Couples

“The bond that links your true family is not one of blood, but of respect and joy in each other’s life.”

- Richard Bach


To have a kid is a parent’s biggest happiness and it is possible for every parent to achieve this joy through adoption. Adoption is a wonderful opportunity to provide a child with home and parents. It is the loveliest option not only for single parent or same-sex parents but also for the homeless kid. India is home to 31 million orphaned children, according to the United Nations Children’s Fund (UNICEF) [i]. These children have a dark, gloomy future ahead of them. But this can be prevented if these children are adopted and given care and love that each one of them deserves. Therefore, every individual should have the right to adopt irrespective of his caste, gender, sexuality.


RIGHT TO PARENTHOOD OF SAME-SEX COUPLES AND TRANSGENDER PEOPLE Parenting rights should be given to LGBTQ Community or not is a debate going on since a long time. LGBTQ Community is considered as backwards and is fighting for its rights worldwide. In many countries, various laws and regulations have been made to protect their right to equality but very few countries have enacted any law that safeguards their parenting rights. People belonging to LGBTQ community still struggle for acquiring parenting rights legally due to the widespread ignorance of their sexual identity, sexual preference and the incommunicable complexities inherent in transitioning.


Parenting is the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Biological relationship is not an aspect in determining who are the legal parents. Surveys in the US have shown that children raised by gay couples grow up to be more tolerant and open-minded.[ii] Cornell University compiled various scholarly studies and found that 95% of them concluded that children of gay or lesbian parents fare no worse than other children.[iii] Therefore, it can be concluded that good parenting has nothing to do with sexual orientation but is the ability of parents to take good care and impart good values to a child. So, allowing same-sex couples to adopt will only bring happiness in the lives of more homeless children. As rightly said- “There are no unwanted children. Just unfound families.”


STATUS OF ADOPTION BY SAME-SEX COUPLES WORLDWIDE

1st of April, 2001 was not an ordinary day. Something historic happened on that day which “blew a life of constitutionality” in the dead members of the LGBTQ+ community, who have been subjected to centuries of mind-numbing toil. The Netherlands was the first country worldwide to recognize parenting rights of the same-sex couples. The legislature gave rights to adopt to same-sex couples just like any other heterosexual couple and gave existence to their right to equality. Followed by South Africa in 2002, it allowed joint adoption by same-sex couples and became the first and only African country to do so.


In the case of Du Toit v. Minister of Welfare and Population Development[iv], the constitutional bench of South Africa’s apex court gave decision to amend the Child Care Act (1983). Adoption and Children Act, 2002 of England and Wales allowed same-sex couples and unmarried people to adopt children. In 2008, Israel also allowed adoption by same-sex couples regardless of whether the child is biologically related or not to either parent.[v] isRealli is the official blog of the State of Israel which publishes updates on gay adoption news in the country. United States have laws regulated and licensed at the state level and therefore, the laws regarding same-sex couples vary state to state. But now in 2020, all the 50 states of United States have legally recognized adoption by same-sex couples as well as LGBT individuals. Mississippi was the last state in United States to allow adoption by same-sex couples. Costa Rica is the most recent country in 2020[AS1] which legalised same-sex marriage and adoption and become the first country in Central America to do so.


On the one hand some countries are expanding rights for gay and lesbian couples and individuals and on the other hand some countries are strengthening laws that would prevent gay and lesbian parents from adopting. In 2013, Russia's lower House of Parliament, the Duma, voted unanimously on a bill banning the adoption of orphans by foreign same-sex couples and by single foreigners from countries where gay marriage is legal. Russia perhaps has the strongest anti- gay response for adoption by same-sex couples as President Vladimir Putin commented, "We respect our partners but ask them to respect Russia's cultural traditions and ethical, legal, and moral standards."[vi] In China the adoption by same-sex couples is prohibited by the Chinese authorities and Pakistan has no specific laws regarding adoption for both homosexual and heterosexual couples.


SCENARIO IN INDIA

In India, there are both secular as well as religious laws to govern adoption. The main legislation governing the adoption process under Hindu personal laws is the Hindu adoption and maintenance Act, 1956 (HAMA) while there are no personal laws regarding adoption in case of Muslims, Christians, Parsis and Jews. There is another law i.e. Juvenile Justice care and protection of children Act, 2015 (JJ Act), read with the adoption regulations of 2017 framed by the Central Adoption Resource Agency (CARA) which is secular and allows adoption regardless of the religion of the person. Even this act does not talk about adoption rights to LGBTQ community.


In 2018, the Supreme Court of India in the case of Navtej Singh Johar vs. Union of India[vii] by partially striking down Section 377 of Indian Penal Code, 1921 decriminalised homosexuality. Although Section 377 of IPC has been decriminalised but still the law debars LGBTQIA+ community from adopting children which is discriminative in nature as it is against their fundamental right to equality. One reason that same-sex couples cannot adopt a child is that same-sex marriages are not legal in India. According to regulation 5(3) of the Adoption Regulation Act, 2017, only a couple having a stable relationship of two years is eligible to adopt a child and the section uses the words “husband” and “wife” which means that same-sex couples cannot have right to adopt a child as they do not have legally recognized right to marry.


Another reasoning behind not allowing same-sex couples to adopt is that every child must be able to know the value of both a mother and a father and henceforth, same-sex couples should be denied the right to adopt as the child should not be raised in an “inferior family” as said by an officer of one of the five oldest adoption communities of Karnataka[AS2] . This is a very weak argument which have no premises for supporting its claim. It is so ironical that law can abandon a child to be raised as an orphan without both the parents rather than being brought up by homosexual and trans couples. The law continues to debarred the LGBTQIA+ couples from adopting a child even when there are more than 20 million orphans and abandoned children in India, out of which most of them are living in abysmally poor conditions.


CONCLUSION & SUGGESTIONS

In recent times, adoption has been the best means to restore family life to a child deprived of his or her biological family. But presently, there are no laws in the country which talks about adoption and parenting rights to the LGBTQ community. India as a country is in a “knee point” regarding LGBT child adoption rights right now and just needs a push in the right direction. Nothing is better than that push coming from the legal system of the country. It’s high time the legislators need to make the relevant amendments in the Adoption Laws of the country. Moreover, a uniform civil code in adoption laws is needed which will not violate fundamental right to equality.


ENDNOTES

[i]https://www.soschildrensvillages.ca/girl-child-endangered-child-abandonment india#:~:text=India%20is%20home%20to%2031,either%20one%20or%20both%20parents.

[ii] https://www.debatingeurope.eu/focus/arguments-gay-adoption/#.XxfIoSgzZPb

[iii]https://whatweknow.inequality.cornell.edu/topics/lgbt-equality/what-does-the-scholarly-research-say-about-the-wellbeing-of-children-with-gay-or-lesbian-parents/

[iv] 2002 (10) BCLR 1006 (CC)

[v] In 2005, adoption of only stepchild was allowed by same-sex couples.

[vi] https://www.chapman.edu/international-studies/_files/lgbtq-country-specific.pdf

[vii] AIR 2018 SC 4321


ABOUT THE AUTHOR

This blog has been authored by Ayushi Choudhary who is a 1st Year B.A., LL.B. (Hons.) student at National University of Study & Research in Law, Ranchi.


[PUBLICATION NO. TLG_BLOG_20_5104]

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