This article has been written by Shohom Roy, from Symbiosis Law School, NOIDA. The article highlights the hurdles faced by same-sex couples while trying to adopt children, even after the revocation of Section 377 in India.
Table of Contents
Adoption is the creation of a parent-child relationship through a legal and social process. It is a procedure mentioned under Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 through which a biological child of one set of parents becomes the child of another set of parents or a single parent. Indian adoption policies have been coloured by social prejudices and a lack of sensitivity towards child welfare. Legislations like Juvenile Justice Act, 2000 have been amended to imbibe the principle of secularity and thereby allow adoptions irrespective of the communal and religious persuasions of the child and the parents. However, the legislation failed to create equality between adopted and biological children. This legislative flaw was cured by the Juvenile Justice (Care and Protection of Children Act) 2006, which allowed an adopted child to be treated as a legitimate biological child of the parents and granted all the rights, privileges and relationships arising out of the relationship. The legislature has however failed to pay heed to the civil rights of same-sex couples who would want to enjoy family life by adopting children.
Some legislations on adoption
The Central Adoption Resource Authority (CARA) is a statutory entity under the Ministry of Women and Child Development. It serves as the main organization for Indian child adoption and is responsible for overseeing and regulating both domestic and international adoptions. In compliance with the requirements of the Hague Convention on Intercountry Adoption, 1993, adopted by the Government of India in 2003, CARA has been recognized as the central authority to deal with inter-country adoptions.
Hindu Adoptions and Maintenance Act, 1956
The Hindu Adoptions and Maintenance Act (HAMA) was enacted in India in 1956. It governs the legal process for Hindu adults to adopt a child and their legal responsibility to support diverse family members. However, according to Sections 7 and 8(c) of the HAMA, if the spouse is insane, has abandoned the world, or has forsaken his or her children, such authorization will not be required. Similarly, this rule permits unmarried men and women to adopt a child if they are of sound mind and have reached the age of majority.
According to Section 2(1) of the Act, a Hindu does not just refer to someone who practises Hinduism but also includes Buddhists, Jains, Sikhs, Virashaiva, Lingayat, and members of the Arya Samaj. Brahmo and Prarthana devotees are also included in the Hindu definition. In effect, the Hindu Adoption and Maintenance Act applies to everyone who is not a Christian, Muslim, Parsi, or Jew and lives in India. The words “spouse” and “wife” are used in Sections 7 and 8 of HAMA, implying that the Act does not recognise adoption by same-sex couples. Furthermore, the ability for adoption is explained for Hindu males and Hindu females, leaving a grey area when it comes to applying such regulations to third-gender couples.
Adoption Regulations, 2017
In terms of restrictions, the Adoption Regulations, 2017 is far more stringent than the HAMA. Similar to HAMA, unmarried men and women are eligible to adopt as long as they are mentally, emotionally, and financially healthy and do not have a life-threatening illness. Apart from that, the Regulations prohibit a single man from adopting a female child, but it does not prohibit a woman from adopting a boy child. This is in contrast to Section 11(iii) of the HAMA, which allows a single male to adopt a girl child if the two are at least twenty years apart in age.
Juvenile Justice (Care and Protection of Children) Act, 2015
This Act was enacted in the year 2015 to unify and revise the laws associated with children who are asserted and found to violate the law. The child requires care and security by taking into account their basic demands through legitimate consideration, assurance, advancement, treatment, and societal re-mix. These must be combined with child-friendly strategies for problem-solving and issue-resolution for the child’s most progressive growth.
Section 57 of the JJ Act covers the eligibility of Prospective Adoptive Parents (“PAPs”). “No kid shall be placed in adoption to a couple unless they have had at least two years of solid marital relationship,” according to one of the requirements. As same-sex marriages are not recognized in India, same-sex couples are unable to establish a two-year stable marital connection, making them unsuitable to be PAPs.
Arun Kumar Sreeja v. Inspector General of Registration (2019)
The judiciary in the Navtej Johar judgment had decriminalized the homophobic legislation and recognised the rights of same-sex couples under Indian law. However, the social stigma of the people remains a major obstacle before the exercise of certain rights by same-sex couples. Even if these rights are recognized, they are not exercisable. While the Supreme Court has dismissed a petition for the recognition of civil rights like adoption and marriage for members of the heterosexual community, the Madras High Court has taken a different stance in the case of Arun Kumar Sreeja v. Inspector General of Registration (2019), in which Arun Kumar got married to Sreeja, a transwoman, on 31 October 2018 at a temple in Tuticorin, as per Hindu rites and customs. When they submitted a memorandum for registration of marriage to the Joint Registrar No. II of Tuticorin, the Registrar refused to register the same. The petitioners challenged this decision before the District Registrar of Tuticorin vides proceedings dated 16 November 2018, who in turn confirmed the Joint Registrar’s decision on 28 December 2018. This decision was challenged before the Madras High Court.
The Court stated that a marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India (2014), which has been reiterated in Justice K. Puttaswamy v Union of India (2018) and again in Navtej Singh Johar v Union of India.
The Court also held that the expression ‘bride’ in the HMA cannot have a static meaning and must be interpreted in light of the legal system as it exists today. The Court then cited Article 16 of the Universal Declaration of Human Rights, which includes the right to marry as a human right as well as Shafin Jahan v Asokan K.M. and Ors (2018), where the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution of India. The Court also went on to cite Justice K. Puttaswamy’s statements, where the Supreme Court referred to the US Supreme Court decision in Obergefell v Hodges (2015), in which the Court had noted that it would be contradictory to recognise a right to privacy concerning other matters of family life and not concerning the decision to enter the relationship, that is the foundation of the family in society. Since the Constitution of India is an enabling document that is inviting transgender persons to join the mainstream, they cannot be denied the benefits of social institutions that are already in place in the mainstream.
The Court, therefore, held that refusal to register the marriage of Ms Sreeja would amount to a violation of her fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India and quashed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin and directed the Joint Registrar No. II to register the marriage of the Petitioners.
The Court also addressed a second issue on sex reassignment surgery (SRS) or Intersex Genital Mutilation (IGM) of intersex children. The Court pointed out that according to the judgement in S. Amutha v C. Manivanna Bhupathy (2019), consent of a parent cannot be considered as the consent of the child and as held in NALSA, no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity. The Court directed the Government of Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children. The Court also noted that since Arun Kumar, the first petitioner was from an SC community, they were entitled to obtain financial incentives under the Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages.
Laxmi Kant Pandey v. Union of India (1984)
In this case, the Court clearly recognized that “every child has the right to a family”. This right could be interpreted to incorporate the right to be adopted. In addition, Article 39(f) requires the government to formulate policies to ensure that children have opportunities and facilities to develop in a healthy, free and dignified way. Therefore, forcing a child to live in an institution and depriving them of their right to family is tantamount to depriving them of their freedom and dignity in life, and therefore violates our national policy guidelines. Also, in the case of the Indian Hotel and Catering Association and Anr. Vs. In Maharashtra (2019), people believe that the country cannot impose its own moral values on society. Depriving a child to be adopted by the LGBTQ+ community is equivalent to the application by the state of its stereotypical morality.
Impediments to adoption by same-sex couples
The Indian legislations create ambiguity by mentioning that marital status is not considered when adopting a child. However, this provision is applicable only for single individuals who want to adopt a child and whenever a couple wants to adopt jointly the law mandates the marital relationship and consent of both spouses. Since same-sex marriages are not legalized in India, these legislations defeat the very intention of decriminalizing homosexuality by limiting various civil liberties of same-sex couples. The oppressive legislations like Hindu Adoption and Maintenance Act, 1956, Juvenile Justice Act, 2015 and the Adoption Regulations which prevents unmarried couples from adopting children are against the fundamental rights guaranteed under Articles 14, 15 and 21 of the Indian Constitution.
Indian adoption legislations fail to clear the classification test of Article 14 since the unjust classification among individuals created by these Acts creates room for discrimination between married and unmarried couples. There are no reasonable objectives that could be achieved through such classification. It violates the constitutional values of equality before the law and equal protection under the law. The adoption laws are in contravention of the fundamental right to protection from discrimination, guaranteed under Article 15. Same-sex couples are guaranteed the right to live with dignity and honour under Article 21 of the Constitution. It includes the right to individual choice, autonomy and self-determination. Marriage depends on individual choice and any laws which are arbitrary and unfair or discriminatory against unmarried people either individually or collectively are ultra vires of the Constitution.
Repercussions of the legislative drawbacks
In India, same-sex marriages are illegal; hence homosexual couples are unable to adopt a child jointly. The law prevents LGBTQ+ couples from adopting children together proving that they are still not treated equally in the eyes of the law. As a result, same-sex couples are restrained from adopting since the child should not be reared in an “inferior family”. What is paradoxical, though, is that the law allows a child to be raised as an orphan without both parents rather than being raised by homosexual and trans couples. While LGBTQIA+ couples are not eligible to adopt, India’s orphan population is growing by the day. According to a new study by an international charity for orphaned and abandoned children, India currently has 20 million orphans, a number that is expected to rise to 24 million by 2021. The majority of orphanages provide abysmally inadequate service in the orphanage. The denial of adoption rights to members of the LBTQ community harms the dignity of these people since these discriminations are based on their sexual orientations and not on their capacity or merit as a parent.
Adoption rights in foreign jurisdictions
Same-sex couples are still deprived of adoption rights in various foreign countries. Indian legislation like the HAMA and JJ Act allows a single individual to adopt a child irrespective of his sexual orientation or gender. However, the law discriminates against same-sex couples by disregarding their adoption rights. However, some of the liberalistic countries in the European Union, the U.S, South Africa have enacted progressive laws concerning the rights of same-sex couples. Even the United Kingdom, which had enacted the legislation criminalizing homosexuality in India, has legalized adoption by same-sex couples jointly in contrast to their Indian counterparts.
A country adopting the law of another country as its legislation might lead to several legal inconsistencies. For example, a same-sex marriage conducted according to the laws of the Netherlands, Belgium or Spain is not recognised in the UK. The spouses are thought to be in a civil partnership in such cases. Therefore the European Court of Human Rights plays a pivotal role in protecting the right to respect for family, life, right to marry and the right to be safeguarded from discrimination based on sexual orientation within the European Union. The European Convention on Human Rights prohibits the Member States from discriminating based on sexual orientation in adoption proceedings. The landmark case of E.B v France (2008), has altered the landscape of parental rights for the LGBTQ community in Europe. By rejecting the stance taken in previous judgments like Salgueiro da Silva Mouta v. Portugal (1999) and Frette v France (2002), where custodial and adoption rights were restricted based on sexual orientation, the ECHR in the case of E.B v France utilized the principle of ‘best interest of the child” to mandate that domestic authorities are prohibited from making distinctions according to sexual orientation in adoption proceedings according to the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Convention on the Adoption of Children envisions a broader concept of family and provides a widespread prohibition on discrimination, thereby further strengthening support for same-sex families
United States of America
The United States of America has been a bastion of the constitutional value of individual liberty. However, same-sex couples were denied several rights under the American Constitution. The judiciary played an active role in eradicating the discrimination faced by same-sex couples due to social non-acceptance and legislative inaction. In the case of De Boer v Snyder (2014), the Law of the Michigan State prohibiting same-sex marriages and joint adoption was declared unconstitutional by the United States Court of Appeals for the Sixth Circuit. In the famous case of Obergefel v Hodges (2015), the U.S Supreme Court declared that discriminating against homosexuals is against the ethos of the Constitution and the value of individual liberty is equal for every individual within the society. This judgment has led to various judicial pronouncements and legislation legitimizing adoption for same-sex couples.
A former colony of the British Empire, South Africa shares several features with Indian law. Despite societal prejudices, South Africa has been one of few common law countries that have recognized the rights of same-sex couples. The Constitutional Court of South Africa in the case of Ministers of Home Affairs vs. Fourie (2005), had rejected the stereotype assumptions prevalent at that time and validated marriage between individuals belonging to the same sex. The criticism of the Court regarding the dehumanizing conditions of life for members of the LGBTQ community had prompted the government to implement the Civil Union Act, 2006 which legalized same-sex marriage in the country. This judicial and legislative action ultimately led to contentions against the discrimination between married and unmarried couples that did not allow joint adoption for unmarried same-sex couples. In the case of Du Tuit and Another v Minister of Welfare and Population Development and Ors (2002), the Court held that the Child Care Act, 1983 was against the principle of the best interest of the child and values of the South African society. It was established that the discriminatory Act must be amended to ensure parity between all members of the community.
The UK had legislations that initially discriminated against same-sex couples by extending adoption rights to married couples and single individuals only. Nevertheless, the Adoption and Children Act, 2002, allowed unmarried same-sex couples to adopt children. The government introduced regulations illegalizing discrimination based on sexual orientation which ultimately led to the enactment of the Equality Act, 2010.
Therefore, in light of the concerns for individual liberty and prohibition on discrimination various countries have disregarded the prejudicial notions of the conservative majority and created a legal framework that protects the interests of the vulnerable minority.
Members of the LGBTQ+ community are also citizens of India, with equal rights in the socio-economic, political, and cultural spheres. Because our society is secular, democratic, and republican, every citizen is treated equally regardless of sexual orientation, gender, or other factors. The case of Navtej Singh Johar v. Union of India decriminalized same-sex couples’ voluntary sexual activity. It puts LGBTQ+ couples on an equal footing with other couples by getting rid of the draconian Section 377 of the Indian Penal Code, 1860. The Juvenile Justice Act and Adoption Regulations passed in 2015 and 2017 failed to evolve with the jurisprudential and societal growth by allowing only heterosexual couples and single individuals to exercise adoption rights. These laws violate Article 14, which guarantees equality to everyone; and Article 15, which outlaws discrimination based on race, gender, or sexual orientation. and also Article 19, which grants freedom of speech and expression. Not only should the state allow same-sex marriages, but it should also alter existing legislation to recognize adoption by same-sex couples. Children who are victimised by this widespread ambivalence would benefit substantially if governments legalized same-sex marriages and parenting.
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