ABSTRACT
A legal procedure called adoption creates a parent-child bond between unrelated people. It’s a means for children who are unable to grown surrounded by their biological parents in a secure, loving home. The Guidelines Governing Adoption of Children, 2015 and the Juvenile Justice (Care and Protection of Children) Act, 2015, serve as the primary legal frameworks for adoption in India. Functioning as a legislative body under the Ministry of Women and Child Development is the Central Adoption Resource Authority (CARA) which is in charge of supervising and controlling both domestic and foreign adoptions and acts as the primary organization for Indian child adoption. It is also the primary authority to handle inter – country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, which stands ratified. The Hindu Adoptions and Maintenance Act (HAMA) of 1956, sets down the requirements for Hindu individuals seeking to adopt a child as well as their legal obligation to provide for a diverse family. This research paper primarily focuses on the legal position of same-sex couples with regard to their right to adoption and parental rights as well as controls. Additionally, the challenges faced by same-sex couples even after the Indian Penal Code’s article 377 was repealed. Section 377 has been removed from the BNS, which replaced the role of the IPC.
KEYWORDS – Child Adoption, Parental rights, Same-Sex couples, LGBTQIA+, Juvenile Justice
INTRODUCTION
Adoption means a legal process that allows someone to become the parent of a child, even though the parent and child are not related by blood. But in every other way, adoptive parents are the child’s parents. Adoption provides a chance for children who are unable to reach maturity with their biological parents to receive love, care, and a permanent home. It is essential to ensure that all children who have been orphaned and orphaned due to varied circumstances have access to a stable and nurturing family environment where they’re provided with a secure home, emotional support, and opportunities to develop their full potential. The procedure of a legal adoption has been defined explicitly in section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 stating that the adopted or abandoned child is completely separated from their biological parents and becomes the lawful child of the adoptive parents with all rights and privileges. Additionally, the definition of an “abandoned child” is in section 2(1) which clearly mentions that a child who has been deserted by their biological or adoptive parents or guardians and has been declared by the committee.
RESEARCH METHODOLOGY
This research employs a mixed-methods approach, incorporating both qualitative and quantitative techniques to investigate the topic of adoption by same-sex marriages and their parental controls. The qualitative aspect involved an in-depth analysis of articles, legal frameworks, judicial decisions, and expert opinions, both within the context of India and through a comparative global lens. Concurrently, quantitative studies were conducted, utilizing numerical data to examine trends and patterns pertaining to parental controls within same-sex marriages. This dual methodology ensures a comprehensive exploration of the subject matter, offering insights that are both detailed and nuanced.
LITERATURE REVIEW
This research paper focuses on the position of legal adoption by same sex couples and the hurdles faced by them in India as well as globally. This also focuses on the general procedure of adoption.
LEGAL STATUS OF LGBTQIA+ IN INDIA
The Supreme Court of India has acknowledged the rights of LGBTQ+ individuals and has recognized that they are entitled to equal protection under the law. In a landmark judgment in 2018, the court ruled that the right to sexual orientation is an integral part of the right to privacy and dignity guaranteed by the Indian Constitution. This ruling paved the way for the decriminalization of homosexuality in India under article 377 of the IPC. In October 2023, the court held that it can neither strike down or read words into the Special Marriage Act (SMA) 1954 to include same sex members within the ambit of the SMA 1954.The top court said it is for Parliament and state Legislature to formulate laws on it. Hence, not giving them rights to marital status or adoption rights. Indian adoption policies have been coloured by social prejudices and a lack of sensitivity towards child welfare. There are several legal frameworks that have been created in order to give the abandoned children a fair opportunity. However, the current legal framework in India does not explicitly permit or prohibit homosexual couples from adopting children.
LEGISLATIONS ON ADOPTION IN INDIA
Child Adoption Resource Information
Central Adoption Resource Authority (CARA) is an autonomous and statutory body of Ministry of Women and Child Development in the Government of India that was set up in 1990. CARA is the nodal body that manages within and outside the country adoptions of Indian children. It is also a statutory body under Juvenile Justice ( Care and protection of Children) Act of 2015. It is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the 1993 Hague Convention on Inter-country Adoption, ratified by Government of India in 2003. This convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption protects children and their families against the risks of illegal, irregular, premature or ill-prepared adoptions abroad. It operates through a system of national Central Authorities, reinforces the UN Convention on the Rights of the Child under article 21 and seeks to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights. It also seeks to prevent the abduction, the sale of, or traffic in children.
Hindu Adoption and Maintenance Act, 1956
Adopting a child is regarded as a humane act of kindness. Adoption generally refers to treating a child as one’s own and doing so voluntarily. It governs the legal process for Hindu adults to adopt a child and their legal responsibility to support diverse family members. Different requirements pertaining to adoption are provided by Hindu law; however, in other personal laws, such as Muslim, Christian, or Parsi law, no unique laws are provided. As a result, the Guardians and Wards Act, 1890, must be used when applying for adoption in court. The Guardian shall be either a Natural Guardian or a Guardian appointed by the Court pursuant to the Hindu Minority and Guardianship Act, 1956. The father is the boys’ natural guardian, followed by the mother for the unmarried girls.
As per the provisions of Section 2(1)of the Act, the term “Hindu” include not only adherents of Hinduism. In actuality, everyone who resides in India and is not a Christian, Muslim, Parsi, or Jew is subject to the Hindu Adoption and Maintenance Act. The section 6 of the HAMA, mentions all the essentials of a valid adoption. However, the sections 7 and 8 talk about the capacity of a Hindu male and Hindu female’s capacity to adopt, 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. But, the sections 7 and 8 specifically mention husband and wife which means that this act doesn’t recognise same sex or homosexual couples.
The Adoption Regulations of 2017
The Adoption Regulations, 2017 includes significantly stricter limitations than the HAMA. As with HAMA, unmarried men and women may adopt as long as they are in good mental, emotional, and financial health and do not suffer from a terminal illness. Aside from that, a woman may adopt a boy child; nevertheless, the Regulations forbid a single man from adopting a female child. In contrast, a single guy is permitted to adopt a girl child under Section 11(3) of the HAMA, provided that the two are at least twenty years apart in age.
Juvenile Justice (Protection of Children), 2015
In order to update and harmonize the legislation pertaining to minors who are accused of breaking the law, the 2015 Act was passed. The youngster needs security and care that meets their essential needs through societal re-mixing, advancement, legitimate regard, assurance, and therapy. For the child’s most progressive growth, these must be paired with kid-friendly approaches to problem-solving and issue-resolution. Prospective Adoptive Parents, or “PAPs,” are eligible under Section 57 of the Act. One of the rules states, “No child shall be placed in adoption to a couple unless they have had at least two years of solid marital relationship”. The guidelines do not mention sexual orientation as a factor in determining the suitability of prospective adoptive parents. However, same-sex couples are unable to qualify as same sex marriages have still not acquire a legal status in India.
GLOBAL PERSPECTIVES
Adoption of homosexuals is an issue of debate not just in India but in many other countries as well. Let us examine how Indian adoption laws compare to those of other nations, how various nations see homosexual adoption, and the social and legal repercussions of permitting or forbidding homosexual adoption in various nations.
According to a report by Equaldex, same-sex couples are legally allowed to adopt in 50 countries across the world, with Israel being the only country in entire Asia to permit it. South America, with 50 percent legal equality in terms of same-sex adoption, leads as a continent whilst leaving Asia far behind with just 2 percent equality. Europe stands at the second position with 40 percent legal equality and has the first country, Denmark, to have recognised same-sex partners’ status along with adoption. Soon after this, several European countries took similar steps, and the global ripples continue to reverberate even today, with Slovenia following suit in 2022.
THE UNITED STATES OF AMERICA
The idea of individual liberty as established by the constitution has always been upheld by the United States of America. However, the American Constitution denied numerous rights to same-sex couples. The discrimination that same-sex couples endured as a result of societal rejection and reluctance on the part of the government was actively eliminated by the judiciary.
In the 2014 case of De Boer v. Snyder, the US Court of Appeals for the Sixth Circuit ruled that the Michigan State Law that forbade same-sex marriages and joint adoptions was unconstitutional. The U.S. Supreme Court ruled in the well-known Obergefel v. Hodges (2015) decision that discrimination against same sex couples is against the spirit of the Constitution and that everyone in society has the right to individual liberty. The concept of individual liberty is common in both India and the U.S.A. however in India, social discrimination and cultural distinctions take an upper hand causing a step back for a the queer community in India.
EUROPE UNION
A country adopting the law of another country can cause some legal conflicts. For example, same-sex marriages are not recognized in the UK under the laws of the Netherlands, Belgium or Spain. Spouses are considered to be in a civil partnership in such cases. That is why the European Court of Human Rights plays a key role in protecting the right to respect for family and life, the right to marriage and the right to be protected against discrimination based on sexual orientation in the European Union.
The European Convention on Human Rights prohibits member states from discriminating on the basis of sexual orientation in adoption procedures. The European Convention on the Adoption of Children envisages a broader definition of family and ensures comprehensive non-discrimination, strengthening support for same-sex families.
The landmark E.B. v. France (2008) case altered the parental rights of the LGBTQ population in Europe. The European Court of Human Rights ruled in E.B. v. France, rejecting the position taken in previous rulings like Salgueiro da Silva Mouta v. Portugal (1999) and Frette v. France (2002), where custody and adoption rights were limited based on sexual orientation. The European Court of Human Rights used the “best interests of the child” principle, which states that national authorities are prohibited by the Convention for the Protection of Human Rights and Fundamental Freedoms from discriminating on the basis of sexual orientation in adoption procedures.
Denmark
With the passage of the Domestic Partnership Act in 1989, which enabled same-sex partners to register as spouses, Denmark became the first nation in the world to acknowledge the civil status of its partners. Soon after, the Nordic nations of Norway (1993), Sweden (1994), Iceland (1996), and Finland (2002) all enacted comparable laws.
Netherland
In 2001, the Netherlands became the first country in the world to legalize same-sex marriage, including the right to adopt
UNITED KINGDOM
Adoption rights in the UK were first prohibited to married couples and single people, fostering discrimination against same-sex couples. However, same-sex unmarried couples are now eligible to adopt children as a result of the Adoption and Children Act of 2002. After the government issued regulations making it unlawful to discriminate against someone based solely on their sexual orientation, the Equality Act of 2010 was eventually passed.
Therefore, several nations have ignored the biased ideas of the conservative majority and established a legislative framework that safeguards the rights of the disadvantaged minority in light of the concerns for individual liberty and the prohibition on discrimination.
BARRIERS TO ADOPTION FACED BY SAME SEX COUPLES
The LGBTQIA+ community in India has been striving for a social and legal status for an extended period of time. They have been struggling for equal rights and a restitution of their dignity, which has been eroded over time by violations of their fundamental rights. One of the many battles fought by queer and same sex couples is their legal marital status and right to adoption. Both of which, they haven’t been granted as of today. The most recent judgement by five-judge Bench of the Supreme Court on Tuesday announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family. The Court declined to legalise same-sex marriage, upholding the principle of parliamentary supremacy. However, the court also held that any consensual sexual union between individuals of the same sex is legal and their shall be no legal action against them. All these amends have been a very small step forward but an equal step back as back because the court still doesn’t grant them of the right to a legal adoption.
The Indian legislation, that stipulate that a parent’s marital status is irrelevant in the adoption process, are contradictory. This provision, however, is exclusive to single people who wish to adopt children; if a couple is interested in adopting a child together, the law requires their marital status and the approval of both spouses. These laws undermine the goal of decriminalizing homosexuality by restricting the civil liberties of same-sex couples, while same-sex marriages are illegal in India. Persistent laws such as the Juvenile Justice Act of 2015, the Hindu Adoption and Maintenance Act of 1956, and the Adoption Regulations that prohibit single individuals from adopting children are in violation of the fundamental rights enshrined in Articles 14, 15, and 21 of the Indian Constitution.
PROS AND CONS OF ADOPTION BY SAME SEX COUPLES
Adoption by same sex couples has generated discussion all over the world. Some contend that it gives needy children loving homes, while others counter that it is not in the child’s best interests. Adoption by homosexual couples has a number of benefits and drawbacks in the Indian context.
PROS
Homosexual couples can provide loving and stable homes for children in need of care and protection. They can offer a supportive environment and provide the necessary care, education, and guidance to the orphaned children. Homosexual adoption can help in tackling the problem of orphaned children in India. According to a UNICEF report, India has over 20 million orphaned and abandoned children. Homosexual couples can provide homes to these children who would otherwise have been left without families. Homosexual adoption promotes gender equality and eliminates discrimination on the basis of sexual orientation. It recognizes that homosexual couples can provide the same love and care as heterosexual couples and have the right to form a family.
CONS:
In India, the topic of homosexual adoption is still frowned upon. Many people think that raising a child with a homosexual relationship will expose them to prejudice and societal stigma, which could be harmful to the child’s mental and emotional health. Some claim that children of homosexual couples may experience prejudice and bullying from their classmates, which may have a negative effect on their sense of value and self-esteem. Due to the absence of a defined legal framework in India, adoption agencies and officials may choose to refuse applications from couples who identify as homosexual.
METHOD
SUGGESTIONS
In recent years, there has been growing momentum towards greater acceptance of homosexuality in India. This has led to increased advocacy for the rights of homosexual couples to adopt children.
However, since it is legal in India for single people to adopt children, some homosexuals have found a way around this restriction by adopting as single parents. It is worth noting that while single-parent adoption may be a way around the current restrictions on same-sex adoption in India, it is not a solution to the larger problem of discrimination against same-sex couples seeking adoption.
Some potential future scenarios for homosexual adoption in India, for the Indian government and courts may amend its current adoption laws to allow same-sex couples to legally adopt children. Despite this, same sex couples may still adopt through both informal and unofficial means, such as through foster care or surrogacy. Adoption agencies in India should be trained to be more open-minded and inclusive towards homosexual couples who want to adopt children. Social attitudes towards homosexuality in India need to change so that homosexual couples and their families are treated with respect and dignity.
CONCLUSION
In summary, the issue of homosexuality and adoption in India is a multifaceted matter that involves legal, social engineering, and cultural influences. The current legal framework for adoption in India does not explicitly prohibit adoption by same-sex couples, but there are no provisions specifically allowing it. Consequently, this practice is frequently subjected to social discrimination and prejudice. The case of Navtej Singh Johar v. Union of India decriminalized voluntary sexual acts between same-sex couples. By repealing the draconian Section 377 of the Indian Penal Code, 1860 it means that LGBTQ+ couples will be treated as equals to other couples. Juvenile justice laws and adoption regulations adopted in 2015 and 2017 allowed only heterosexual couples and single individuals to exercise their adoption rights and failed to adapt to legal and social developments. These laws violate Article 14, which guarantees equality for all. Article 15 prohibits discrimination on the basis of race, gender, and sexual orientation. And Article 19, which allows for freedom of speech and expression. States should not only recognize same-sex marriage, but also change current laws to allow same-sex couples to adopt children. Children, the victims of this widespread ambivalence, would greatly benefit if governments legalized same-sex marriage and same-sex parenthood.
Ridhima Gupta
Vivekananda Institute of Professional Studies