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ADOPTION RIGHTS OF LGBTQIA+ COUPLES UNDER INDIAN LAW

Introduction

The 25+ years of a legal battle for LGBTQIA+ Rights tentatively began with a Public Interest Litigation (PIL) filed in 1994 by AIDS Bhedbhav Virodhi Andolan. The PIL challenged the constitutional validity of Article 377[1]. On 6th September 2018, the Hon’ble Supreme Court struck down parts of Article 377 thereby decriminalizing same-sex relationships between consenting adults[2]. Although most communities applauded this landmark verdict, the fight for LGBTQIA+ rights is far from over. Since LGBTQIA+ partners are still unable to get married and start a family, a Private Members Bill was presented in the Lok Sabha in April 2022 with the goal of legalizing same-sex marriage under the Special Marriage Act, 1954 [3]. This article will largely focus on an LGBTQIA+ couple’s right to start their own family under Indian law, specifically through the procedure of adoption.

Adoption under Indian Laws 

There are multiple laws in India under which heterosexual couples can adopt children. A Hindu couple can seek adoption under the Hindu Adoption and Maintenance Act, 1956. The Parsi, Jew, Christian, and Muslim Personal Laws don’t allow adoption; however such couples can adopt children under secular acts like the Juvenile Justice (Care and Protection of Children) Act, 2015 or apply for guardianship of a child through the Guardians and Wards Act, 1890. Additionally, inter-country and in-country adoption is also monitored by Central Adoption Resource Authority (CARA) which is a statutory body under the Juvenile Justice Act, 2015.  A common trend in the provisions outlined in all of the acts mentioned above is that none of them lay down the procedure for an LGBTQIA+ couple to adopt. Due to this lack of legislation, LGTQIA+ couples are still struggling to get the same rights and privileges as their heterosexual counterparts. 

A story published in The News Minute detailed the difficulties faced by a Trans Woman and activist, Akkai Padmashali, and her spouse Vasu on their journey to become parents through legal adoption. Every adoption centre the couple contacted turned them down. Their two-and-a-half-year-long struggle came to an end, and with the understanding and support of their families, the couple was able to adopt a cousin’s child under the Juvenile Justice Act, 2015. [4] Denying adoption rights to members of the LGBTQIA+ community is highly discriminatory and violates their right to dignity as these denials are solely based on their sexual orientations rather than their capacity or merit to be parents.

Although Navtej Singh Johar v/s Union of India was a landmark case that recognized that the right to a life with dignity under Article 21 includes one’s sexual orientation and choice of partner; same-sex marriages continue to remain illegal in India. It is worth noting that the current legal framework does not expressly prohibit single LGBTQIA+ Indians from adopting however; LGBTQIA+ couples face discrimination and continue to struggle to adopt a child together. There are more than 30 million orphaned and abandoned children in India[5]. India’s orphan population is rising daily and yet LGBTQIA+ couples continue to be denied their right to adopt. What is paradoxical is that Indian laws permit children to be raised as orphans rather than by LGBTQIA+ couples. 

International Scenario

It is still illegal in many countries for LGBTQIA+ people to adopt or foster children. The map below uses data from the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA World) to show where joint adoption and second-parent adoption are permitted, as well as countries where same-sex couples are not permitted to adopt.[6] When a couple adopts a child who was not previously the legal child of either partner, this is referred to as a joint adoption. A second-parent adoption, on the other hand, occurs when a partner who is not biologically related to the child adopts the biological or adopted child of their partner. By 2020, 28 countries and jurisdictions had fully recognized the possibility of same-sex couples adopting children jointly. Compared to Oceania, Asia, and Africa, more countries in America and Europe allowed homosexual couples to adopt children. Amongst African countries, only South Africa, and among Asian countries only Israel grants same-sex couples the right to adopt children.[7] According to a study conducted by the United States Census Bureau, same-sex couples were more likely (3.1%) than opposite-sex couples (1.1%) to adopt a child. 20.9% of same-sex couples with children had adopted children; the same was true for 2.9% of opposite-sex couples with children.[8]

Happiness Index and its correlation with LGBTQIA+ adoption rights

  1. Finland was named the happiest nation in the world five times in a row. It legalized same-sex adoption in the year 2017. 
  2. Denmark legalized same-sex marriage in 2012 while adoption rights were granted to LGBTQIA+ couples in 2010.
  3. Iceland is frequently referred to as one of the most LGBTQIA+ friendly countries in the world. Same-sex couples have had equal access to adoption and IVF since 2006.
  4. In Switzerland, the statutory amendment that legalizes same-sex marriage and permits married same-sex couples to adopt jointly and access IVF treatments will go into legal effect from July 1, 2022.
  5. In the Netherlands, same-sex adoption was legalized alongside same-sex marriage in 2001, which includes joint and stepchild adoption. The Dutch Parliament also began allowing same-sex couples to adopt children overseas in 2009. Lesbian couples can get access to IVF treatment, as well as parentage rights for their children.
  6. India ranks 136 on the Happiness Index. [9]

Conclusion

The current state of vacuum due to lack of legislation is a massive hurdle that the Indian LGBTQIA+ community continues to face when they approach the courts to enforce their civil rights like the right to adoption. Almost 4% of India’s youth population is comprised of orphaned or abandoned children[10]. One of the many ways this adoption crisis can be addressed is by expanding the ambit of adoption laws to include provisions for adoption by LGBTQIA+ couples.  In a tussle of public morality versus constitutional morality, the LGBTQIA+ community has been deprived of their fundamental rights for far too long. It is therefore crucial for India to take a lead from countries like the Netherlands, Switzerland, Denmark, etc., and pass legislation that will ensure that the fundamental rights of the LGBTQIA+ community are equally enforced and protected, thereby ushering in a new era of social change.  

Authors Name: Vanshika Rajesh Tripathi & Midhushi Shukla (ILS Law College, Pune, Maharashtra)

References:

[1] Krishnan V, “How the LGBTQ Rights Movement in India Gained Momentum” (Return to frontpage December 21, 2018) <https://www.thehindu.com/society/its-been-a-long-long-time-for-the-lgbtq-rights-movement-in-india/article24408262.ece> accessed July 10, 2022

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[3] Desk THN, “Lok Sabha Members Introduce Private Member Bills for the Benefit of the LGBTQIA Community” (Return to frontpage April 4, 2022) <https://www.thehindu.com/news/national/lok-sabha-members-introduce-private-member-bills-for-the-benefit-of-the-lgbtqia-community/article65289606.ece> accessed July 10, 2022

[4] Kurian S, “The Struggles of a Trans Woman to Legally Adopt a Child: Akkai’s Story” (The News Minute October 1, 2019) <https://www.thenewsminute.com/article/struggles-trans-woman-legally-adopt-child-akkai-s-story-109789> accessed July 10, 2022

[5] ILM, “The State of India’s Orphaned Children Crisis” (International Learning Movement September 17, 2021) <https://www.ilmuk.org/news/the-state-of-india-s-orphaned-children-crisis/> accessed July 10, 2022

[6] Fleck A and Richter F, “Infographic: Where Adoption Is Iegal for LGBT+ Couples” (Statista Infographics June 22, 2022) <https://www.statista.com/chart/13179/where-adoption-is-illegal-for-lgbt–couples/> accessed July 10, 2022

[7] Varrella S, “Countries Where Same-Sex Couples Can Jointly Adopt Children 2020” (Statista October 18, 2021) <https://www.statista.com/statistics/1269946/countries-where-same-sex-couples-can-jointly-adopt-children/> accessed July 10, 2022

[8] Bureau USC, “Same-Sex Couples Are More Likely to Adopt or Foster Children” (Census.gov October 8, 2021) < https://www.census.gov/library/stories/2020/09/fifteen-percent-of-same-sex-couples-have-children-in-their-household.html#:~:text=Overall%2C%20same%2Dsex%20couples%20were,opposite%2Dsex%20couples%20with%20children> accessed July 10, 2022

[9] Goshwami S and others, “World Happiness Index 2022 Country Wise Rank & Report” (DMER Haryana: Recruitment, News, Admit card, result March 31, 2022) <https://dmerharyana.org/world-happiness-index/> accessed July 10, 2022

[10] ILM, “The State of India’s Orphaned Children Crisis” (International Learning Movement September 17, 2021) <https://www.ilmuk.org/news/the-state-of-india-s-orphaned-children-crisis/> accessed July 10, 2022