Parenthood is an emotion attached to both a male and a female i.e a mother or a father. The winds of change are blowing throughout India, breaking all the gender stereotypes. Parenthood makes one long for a child, irrespective of a biological or adopted, accepting the child as his/her own. Until recently, economic independence among many people has now led them to seek for a child on their own, and the change in government regulations has made single parent adoption streamline. In case of India, a couple is eligible to adopt both girl and boy child (with partners consent), even a single female/mother can adopt both, but a single male is only eligible to adopt a boy child. Whereas right to parenthood for the LGBTQ+ community is not yet to be recognized or accepted by law or even society. The discrimination against the single father and the LGBTQ community is not even a part of public conversations. The research paper is focusing to de-link between marriage and wanting to be parents.
Adoption, parenthood, gender neutral, same-sex, child, homosexual, single father, single mother, disparity, family
It is never necessary to be parent by only biological means. Adoption is the process where an adult is willing to take up the responsibility of accepting a child as his/her own through a legalized process, and to form family. Family is a group of persons, all came together via biological bonds or other ways i.e adoption. Adoption was only concerned with couples earlier, but now there is a growing trend of a single parent applying for adoption. It is quite heartening to understand the fact that a child who had no one to care for him/her is now accepted as a son/daughter. The desire of having their own child is a very normal phenomenon, but in many cases, people are not able to have their own child may be because of infertility or some other biological problems. Sometimes unmarried people also desire to have kids, in these circumstances their desire is fulfilled through adoption. In the present scenario, people demand to de-link the concept of marriage from the desire of having a child. But in India it is very difficult for a single male and homosexual couple to adopt and have a family of their own. The Juvenile Justice Act, 2015 and the Central Adoption Resource Authority Regulations, 2017 along with the Guardians of Wards Act, 1890 provide rules for adoption for all the parents. The Hindu Adoptions and Maintenance Act, 1956 provides guidelines exclusively for parents of Hindu, Jains, Sikhs and Buddhists. But homosexual couples are adoption is yet to be recognized.
Why is the reason behind such disparity? The struggle that started with the de- criminalizing Section-377 is not the end, the battle is gained partial victory, the road towards goal is partially done not completely.. Most of the couples feel incomplete without a family of their own, and many queer couples mainly in India want to adopt and raise children, legally but can’t. In India, if we survey about ‘what matters the most’, they are likely to say family. But not all Indians have the right to have one.
According to India’s Adoption Regulations, 2017, as published on the official website for the Central Adoption Resource Authority (CARA), couples married for at least two years, as well as single women, can adopt a both girl/boy child, while a single man is eligible only to adopt a boy child. Couples in live-in relationships, same-sex couples and transgender individuals, stand no where I the guidelines for eligibility criteria almost as if they do not exist. They too have the right to have a family of their own.
When we talk about single fathers in India, it is very difficult for a single male to adopt. When we look from world’s conception motherhood is considered to be superior and more important than single male parenthood is, and it is not considered much due to the assumption that single male does not have the desire of their own to have a kid or are not ready to take the responsibility, unless they are in a relationship with a female. But as time is changing it can be seen bachelors are also having a desire to nurture and raise children. What if they want to have a daughter through adoption and wants to give her the best life. The adoption authority anyway keeps a check on the parent so that the child is safe, so giving girl child for adoption to a single father should be the next step to remove the gender based difference. Nobody can assume the extent of both fatherly and motherly instinct towards their children. If a single father is not considered to be eligible due to safety reasons, the same criteria should be applicable to a single mother of a son. Intentions can’t be judged on the basis of parenthood or parental instinct. If a mother’s love is given priority, then a father’s love should not be left behind. There are many single fathers of sons as well as daughters, working hard to provide a better life for his children. A single woman wanting a boy child and a single man wanting to have a girl child is equal, but the answers are not.
The comparison is creating the difference, which is why fathers questions their ability to nurture their child. Due to societal pressure and the rules laid, single fathers feel they can’t give enough love and care, but who gives the assurance that a single mothers are capable of providing the best life to her children. The doubt that a father will not be able to take care of the child adequately, and a host of other barriers that truly are not based on actual facts. The fear of exploitation of the girl child, or to presuppose every male as a probable rapist is not excusable. Who takes the guarantee of a single mother then? It is about getting equal opportunities as like in other cases every another person is concerned about the equal opportunities in other fields, why equality is not a matter of concern in adoption. It is a bit complicated but not impossible for a single male.
When it comes to the adoption matter for homosexual couples, the Central Adoption Resourse authority (CARA) helpline says “there is no such provision” for same-sex couples to adopt. The rights for single parents mainly single father and live-in couples with children is still a rough road to cross i.e extremely tough battle, and the discrimination against LGBTQ+ parents is not even part of public conversations. It seems like nobody is concerned, like the ones suffering through it. Right to parenthood is nowhere in the scene for LGBTQ community. Here Article 21 plays a vital role, and even in the past Supreme Court judgements interpreted the scope of Article 21 of the Constitution – the right to life and personal liberty to include the right to motherhood (which is an indispensable part) and right to reproductive autonomy, which every individual has the right to but this does not seem to apply equally. Infact, Article 16 of the United Nations’ Universal Declaration of Human Rights (UDHR) states that “men and women of full age… have the right to marry and to found a family.” But still the right to begin a family is only accepted and recognized of heterosexual couple. The status of homosexual couple in the society are clear in pen & paper but in the physical world, they are still struggling to get the acceptance. The future of adoption by homosexual couple is still ambiguous. The taboo is still there about ‘same sex’ parents. Due to lack of awareness, concerns escalate. There is an urgent need not only to be accommodating and open but also need to normalize same sex parenting and single parents parenting.
The main aim of adoption is for children to get a suitable, comfortable and peaceful environment and family, which allows for their emotional and physical growth. The concern should be if the child will get the environment that is healthy for his/her mental and physical growth, and to have loving parent/parents irrespective of any gender or sexuality. When we talk about equality of opportunity, gender neutral rules and regulations, why it is always felt when women is less favored, but when men are given less priority it is suppressed by giving excuses of safety measures.
The research paper is a self-opinionated approach to ascertain the facts, circumstances, state the objectives of this research paper and the reasons important for this research issue. The methodology used is mainly secondary sources which include, journals, articles, bulletin and different websites both governmental and non-governmental published papers.
REVIEW OF LITERATURE
Raga Olga D’Silva  an advertising professional cum author and entrepreneur, got married to her male best friend in the year 1995, and gave birth to her twins, who are now 23-year-old. But their marriage did not last long, and they separated their paths. She was born in India, preciselu in Mumbai and currently settled in London. She raised her twin children with her partner, Nicola Fenton. D’Silva and Fenton have been in a same-sex relationship for over 13 years now. For the children, it’s a different yet comfortable environment, that they are loved by three parents, two mothers and a father which is quite rare to find and get.
But things took topsy-turvy turn for the family when they came to their native land, India. Nicola was not recognised as a legal parent of the kids. D’Silva stated that, It was challenging when they went for school admissions, they allowed Nicola to be on the form as a ‘friend’ or emergency contact. Even in decisions related to health, of the children, she couldn’t legally make decisions on their behalf. Their biological father was only accepted in legal procedures, and Nicola never got the dignified recognition.
According to RTI reports, the number of single men who applied for adoption doubled the number from 21 in 2015-16 to 45 in 2018 to 19. In the year 2019-20 the number was 71 until December. The increase in single men application for adoption is a positive sign that fathers are feeling confident enough to apply for it, and are becoming emotionally and financially ready for having and raising child on their own. On the contrary, government data suggests, and an RTI reply from CARA, the number of applications from single women were not even close to the number of single men, as it was 495 in 2017-2018 and went to 589 in 2018-19.
Delhi resident, Jyoti Swaroop Gupta, 48y/o currently, decided to apply for his first adoption in 2009, when he was 37, and the second time in 2018. According to his own personal experience, he felt it has become a lot more streamlined and gained the popularity but the questions largely remain the same- if he was a gay. CARA however defended it by stating that it is necessary to take thorough information about the applicants to find suitable parent for the child. But the question itself is controversial. ‘If you are gay’ is like making someone who is a gay, feel less deserving and less capable of being a father.
Through Adv. Ashwini Kumar Dubey a PIL was filed , in August last year to decide and declare the “discriminatory grounds” of adoption and guardianship violating articles 14, 15, 21 of the Indian Constitution and to form ‘uniform rules’ for all the citizens. Supreme Court agrees to examine the plea made. The PIL contended that the current practice of adoption is discriminatory.
The main question here is, what is the link between one’s sexuality and the feeling of wanting to be parent and adopt a child? No one can judge or make an assumption regarding the quality of parenting based on the sexuality or that person’s marital status of the guardian/parent. In the course of human existence, a person has different roles in different stages, and to be a partner to someone irrespective of any gender and to be a good parent again irrespective of any gender, vary. What is wrong, in a father wanting to have a girl child, which would probably change her life in a better way. In USA research support that LGBTQ families are showing strength when it comes to parenting children in foster care such as an ability to identify with difficult feelings, feelings of isolation and sense of being ‘different’ because they connect with the tough phases more. The adoption laws varies from country to country. Federally, Gay and Lesbian adoption is legal in all 50 states. Adoption Agencies are starting to come up, in countries which is a LGBT friendly agency, but in India there is no such agency to provide like a help desk.
Marriage is not a compulsory requirement for adoption and it should not be. But in India, the regulations such as Hindu adoption and maintenance act, Guardianship and wards act, provides laws for either married couple or singles, not for homosexual couples. Evident from these regulations that marriage is a pre-requisite in most of the cases. There certain rights are only applicable to heterosexual couples, like adoption. Even after decriminalization of Section 377, anyone denying to follow the norms are ostracized. They are not committing any crime, they shouldn’t be treated as one. Human rights shall not succumb to stigma on same sex love of homosexual couples. The current adoption policies, even after the Navtej Singh’s judgement, are still exclusionary of same sex couples. The struggle for acceptance is still going on which seems endless in matters such as marriage, adoption and other benefits available only to married couples.
There’s no evidence and nobody can prove that same-sex couples are in any way inferior in parenting to heterosexual couples, or are less capable of. On the contrary, recent research has indicated that children raised by same-sex couples outperformed than children of heterosexual couple at academic level.
The APA Lesbian, Gay, and Bisexual Concerns Office has worked on the various studies of the relationships with adults among the children of lesbian and gay parents have also resulted in a generally positive picture eg Harris & Turner, 1985. For example, adolescent relationships with their parents have been described as equally caring, affectionate like any other heterosexual couple.
Differences- Firstly heterosexual parent is more likely to say that children visiting the other parent created problem.
Secondly sometimes children share or communicate more openly with same gender parents.
ADOPTION LAWS IN OTHER COUNTRIES-
Single parent adoption-Women and men are welcome to adopt as single parents in India, but marriage takes precedence, you will be given more priority if you are married. That’s where differentiation starts. Additionally, Single men can adopt only boys.
- China- Single women over 30 years are allowed to adopt only, including special needs children. China’s Special Focus Program deals with this.
- Vietnam- Single parent of both the genders are allowed but married couples are given priority.
- Hungary- Only single women can adopt children below 10 years of age.
- Philippines- It allows only single women of 27 years or above to adopt, and similar to that of Vietnam, gives priority to married couple.
These are the few examples of countries where single man are either not allowed to or are given less priority. In case of homosexual couples-
“Out of the 53 Commonwealth countries – most of them former British colonies, 36 countries criminalize homosexuality”.
The Adoption and Children Act, 2002, in England endured family relationship irrespective of their sex.
Scotland after 2007 act, allowing same-sex couples in north to adopt children jointly. In 2013, Northern Ireland amended laws, allowing same-sex couples to adopt, making it legal..
Canada is one of the first among the commonwealth countries to allow and accept same sex couple adoption.
Since 2002, Australia has been allowing adoption by homosexual couples in some of its territories.
India has to go a long way in matters of adoption by homosexual couples and with that same sex marriage has to be legalized
There are certain rules, which needs to get amended for the betterment and progressive society.
- Any change is possible when it occurs from the grass-root level. So firstly, the people residing in the society should accept the fact that single males are capable of adopting and raising a girl child too, and that a same-sex couple don’t lack any parenting qualities.
- If a single male or a homosexual couple are major, of sound mind, financially independent and according to survey from the society is well mannered then he or they should be allowed to adopt child of any gender like a heterosexual couple or single female is allowed and eligible.
- If a single father has his mother staying with him, then in the initial stages they can consider this as a plus factor for the girl child to adjust herself in the new environment.
- Making stricter norms for women, men, heterosexual couple and homosexual couple will help in providing safer place for the adoptees and will give equal opportunities to the people wanting to be parents.
- Surveys either at a fixed period or random house visit at the initial days from the adoption will give an idea about the family, and then the authorities can decide if the environment is suitable for the son or daughter.
- The step should be taken to ensure aoption rights for same-sex couples in a nation like India, full of customs and culture, would be legalizing same-sex marriage
From this research we have understood that no legislation shall favor or be biased towards any gender. Gender neutrality is serious concern, which is why it is high time to give equal status and rights to every individual, on humanitarian grounds. Parenting doesn’t depend on the ones sexuality or marital status. He can be a capable parent irrespective of his relationship status. These are the areas where government needs to work and make changes upon. It’s time that India gets inspired and amends its. Adoption guidelines. The society is transforming, and nothing should be a taboo anymore. The understanding that same-sex couples can’t raise children properly is absurd, vague and an insult even to single parents. Children have the right to be brought up in a family with utmost love, respect, attention, and have a peaceful and warm environment for the children. It is the right of the children to get a loving family, and it is the right of the parent/parents to have one if not biologically then through adoption, and no one should be deprived of these rights. Hence, the Government needs to make strategies that will break the stereotypes related to adoption and will encourage more single males, females, homosexual and sexual couples(married/unmarried) to opt for adoption and give a child his/her forever home.
SUJAN BEGUM HAZARIKA,
B.A., LL.B, 6TH SEMESTER,
UNIVERSITY LAW COLLEGE, GAUHATI UNIVERSITY
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