This paper analyses the condition of adoption rights of the LGBTQ+ community in India. It looks upon the various other rights that homosexuals are still denied and identifies what are the root causes of the problem. The main objective of this paper was to identify the standing of India in terms of adoption and many other rights and to analyze what steps have been taken so far and how effective they have been. The paper also touches upon the inequality and injustices faced by queer people and how they are in such a disadvantaged position in society. In the end, it concludes that India has been lacking in various aspects when it comes to adoption rights and a lot of work and efforts are required in this area.
In a country like India, where family is considered as a primary pillar in an individual’s life and is given the utmost importance, it is a shame that a particular section of the society has been denied the right to choose their own family. While heterosexuals enjoy the right of adoption and are even encouraged to adopt a child, homosexuals have to face a lot of issues regarding it.
Many people have the privilege of having a loving family. Unfortunately, there are a lot of people in this world who lose their family members, who are orphans or have been disowned by their family. Especially taking into account the situation of LGBTQ people, many of them are disowned by their parents after they come out and express their true identity to them. Homosexuality is still considered a taboo or a disease, not only in India but all around the world. To such people, finding a new family through adoption is one of the ways in which they can find solace. The mental stability and emotional support that they can get from adopting a child is something that cannot be measured.
When it comes to adoption, the main concern is taken to be the welfare or the ‘best interest’ of a child. Since the sexual orientation of a person does not have anything to do with the welfare of a child or how they are going to raise, homosexuals should be given equal right of adoption similar to heterosexuals.
However, that is not the case in many countries including India.
SECTION 377 AND ITS AFTER EFFECTS
It was Section 377 of the India Penal Code which considered sexual intercourse between homosexuals illegal. It stated that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years. And in this law, homosexuals were included as according to them it was something ‘against the nature’. Such was the life of the people of the LGBTQ+ community before the decriminalization of Section 377.
In July 2009, portions of this section referring to gay sex were declared unconstitutional by the Delhi High Court. However, this achievement was short-lived because it was overturned in the case, Suresh Kumar Koushal vs. Naz Foundation on 11th December 2023 by the court stating that amending or repealing section 377 should be a matter left to the Parliament and not the judiciary. After the law was reinstated, many of the religious leaders came forward supporting this decision of the Supreme court stating that homosexuality is against Indian culture, it is a crime, the scriptures do not permit it, and so on. One of the well-known Yoga Guru, Baba Ramdev went so ahead to say that homosexuality is an addiction and he can cure it with yoga.
Such laws and statements made a mockery of the identity of these people.
Section 377 was actually introduced during the British Rule in 1861 and was modelled on the Buggery Act of 1533. It is surprising that a law established by the Britishers a long time ago was being followed in India when the people who imposed it had themselves given up on it. In the United Kingdom, LGBTQ people not only have the right to have sexual intercourse but many other rights such as same-sex marriage and adoption rights to name a few. Studies have shown that people of the LGBTQ community are more susceptible to Mental health issues. Considering the backlash that they face from society and people constantly questioning their existence, these things would surely affect anyone’s mental health. Being declared a criminal in the eyes of the law and being called something ‘against nature’ simply doesn’t help
Finally, in 2018, in the case of Navtej Singh Johar v. Union of India, the Supreme Court reversed its 2013 judgement and held that sexual acts between adults cannot be a crime, deeming the prior law “irrational, arbitrary and incomprehensible”. Thus, through this landmark judgement, Section 377 was declared unconstitutional. Though it was a big achievement, it failed in establishing all other rights such as marriage and adoption equal for homosexuals. While it was successful in legitimizing homosexuality in general, it remained incomplete in legitimizing other rights of homosexuals.
Even after the decriminalization of the draconian law, the taboo or the stigma against homosexuality still remains. Although the support that the LGBTQ community receive now is far greater than before, they still struggle to get some very basic rights. Marriage and adoption rights being one of them.
ADOPTION RIGHTS IN INDIA
Religion plays an important role when it comes to adoption in India. Hindu Adoption and Maintenance Act of 1956 applies to Hindus, however, on other religious sections such as Christians, Muslims etc, no such type of personal law is applied. According to the Hindu Adoption and Maintenance act of 2005 (HAMA), any Hindu couple or a Hindu married man or woman with their partner’s consent (exemption in cases where the partner has renounced the world, or is of unsound mind or has changed his/her children) is eligible for adoption. Individual/Single people are also eligible for adoption on the condition that they are of sound mind and have reached the age of majority.
There are other laws as well which govern the adoption rights of people and are not particularly based on one religious community. The Juvenile Justice Care and Protection of Children Act of 2015 (JJ Act), in conjunction with the Central Adoption Resource Agency’s adoption regulations of 2017 does not apply to one particular section, but rather it is secular in nature.
However, in terms of regulations, the Adoption Regulation Act is stricter than HAMA since it places certain kind of restrictions on individual/single men when it comes to adopting a girl child. While both men and women who are single are eligible for adoption provided, they are financially and mentally stable and do not suffer from any life-threatening disease, the men candidate can only opt for a boy child for adoption. However, such is not the case with the women candidates, as they are allowed to adopt any gender.
So, all in all, both religious as well as secular laws govern adoption rights in India.
LACUNAES IN THESE LAWS
The main problem with these laws is that there is no specification of the third gender and only men and women have been taken into consideration while framing them. Only a couple with a stable relationship of two years is eligible to adopt a child, according to regulation 5(3) of the Adoption Regulation Act, 2017. Furthermore, the section uses the terms “husband” and “wife,” implying that the right to adoption does not apply to same-sex couples.
Because of the use of such terms suggesting that the law implies only on men and women, its applicability on same-sex couples or trans couples will lead to ambiguity. Thus, due to the lack of clarity regarding the third gender in these laws, adoption is a struggle for the LGBTQ community.
Another explanation why homosexual couples are not permitted to adopt a child together in India is because same-sex marriages are illegal. The Special Marriage Act of 1954 makes it possible for Indian citizens as well as Indian nationals living abroad to marry regardless of their faith, caste, or religion. Thus when it comes to marriage laws, it has been evolving however the provision for the marriage of same-sex couples remains negligent.
Thus in a way, all these rights of the LGBTQ are connected. Since homosexuality was still seen as a crime a few years back, not much could have been done on the aspect of marriage between same-sex couples. After the decriminalization of Section 377, the focus of the activists has now shifted towards marriage rights since it would again play a greater role when it comes to the adoption rights of LGBTQ+.
Hence, the root cause of the problem lies in the non – acceptance of homosexuality and a third gender while framing these laws. Also, no changes or amendments in these laws in terms of the inclusion of a third gender can be seen.
Most of the laws and rights under family law in India, such as those relating to adoption, surrogacy, inheritance, guardianship, and so on, are in some way or another linked to marriage. And, because the LGBTQ+ community has been denied the freedom to marry so far, access to all of these other laws has been limited as well.
Anand Grover, a senior lawyer and well-known HIV and LGBTQ+ rights activist, explained, “Since they [members of the LGBTQ+ community] cannot get married, they are forced to find all sorts of other ways like adopting in one partner’s name instead of together, for example. And then there are also a lot of people who do not want to get married at all. Why should they have to? The option of pacts or recognised agreements should be explored too.”
Since laws do not ensure legal adoption rights to these people, illegal adoption has become a very common practice among transgenders. People who are unable to provide for their children or are not financially capable of raising a child in some parts of Tamil Nadu leave them with the transgender community. Adoption is also very popular in that region. However, such adoptions have no legal standing.
SOLUTION OF THE PROBLEM
Even after several petitions filed by LGBTQ activists and lawyers, the judiciary has still not come to any conclusion when it comes to adoption or marriage rights. A couple of public interest litigations (PILs) for the legalization of homosexual marriage were filed in the Delhi and Kerala high courts in 2020. Despite the fact that little has come of these so far, Anand Grover, ( a senior lawyer and well-known HIV and LGBTQ+ rights activist) is certain that they will come through in the end. “The best solution is to allow marriage. That will change everything from adoption to ART to succession. But some legal provision will still need to be made for those who do not want to get married. They should not have to marry just for the sake of accessing other civil rights,” he explained.
The importance of educating people about LGBT rights cannot be underestimated. Human rights are unalienable, indestructible rights that are bestowed upon everyone from the moment they are born. People must understand that homosexuals are also people like us, that they are not aliens. They need to understand that homosexuality is not a disease and that their sexual preference is completely in line with what nature’s dictates.
Harvey Mill, an LGBTQ Activist once said: “It takes no compromise to give people their rights, it takes no money to respect the individual, it takes no political deal to give people freedom, it takes no survey to remove repression”.
LGBTQ people are one such minority that has been fighting for their rights for a long time. Whether it’s in India or any other country, their problems remain the same. In the eyes of some people, homosexuality is a sin, a crime, a disease and whatnot, but it’s when the laws start supporting such ridiculous notions when these people start losing hope in the justice delivery and our judiciary. Along with fighting the prejudices of society, they have to fight such biased laws. Their daily battles are not only with the people but also with the system which ironically promises that every citizen of the country will be treated equally and will receive justice at all cost. It is a failure on our part as humans that we live in a society where a certain section of people are deprived of some very basic rights and we are still not doing enough.
The court itself has observed in the groundbreaking decision of Navtej Singh Johar v. Union of India that “the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” There is still a long way to go in terms of LGBTQ rights and this gap between equality and equal rights need to be covered not by others, but by the support of the people of this country and its judiciary.
Aastha Verma, Christ University, Bangalore