PIMPRI LAW REVIEW JOURNAL ISSN: 2583-5947 (Online) VOLUME 3 ISSUE 2 2024
Adoption Rights of the LGBTQ Community in India
1
Asst. Prof. Priya Totla
2
Dr. Rekha P. Pahuja
Abstract
In India the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community is a sextual
minority, which has been facing problem of discrimination in their legal and social identity from a
long time. Due to non-recognition of their legal status, they are unable to exercise parental rights
even by adoption or surrogacy, which are considered fundamental human rights. Similar to the
heterosexual couple the adoption right is equally necessary for LGBTQ individuals so that they can
enjoy family life with children.
There are adoption laws in India, such as the Juvenile Justice (Care and Protection of
Children) Act and the Hindu Adoption and Maintenance Act, but these laws are only applicable to
opposite-sex couples and prevent same-sex couples from exercising their legal right to adoption.
These are based on a binary understanding of gender, which violates Articles 14, 15, and 21 of the
Indian Constitution. This paper explores key legal cases that have shaped LGBTQ adoption rights in
India, including the Navtej Singh Johar case that decriminalized consensual same-sex relations and
subsequent judgements that expanded the scope of non-discrimination and equality. This study also
looks into a comparative analysis of international jurisdictions, including the United States and the
United Kingdom, as well as the laws that other nations have enacted pertaining to same-sex couples.
The researcher in this paper discussed the detriment to LGBTQ individuals in relation to numerous
social facts and behaviors. This study provides information about the legal framework governing
LGBTQ community rights. The paper aims to highlight the importance of continued advocacy and
education to promote understanding and acceptance of LGBTQ adoption rights, ultimately ensuring
that every child has the opportunity to grow up in a safe and loving home, regardless of the sexual
orientation or gender identity of their adoptive parents.
Keywords: Adoption, LGBTQ, Homosexual, Heterosexual
1
Asst. Prof. Priya Totla, SNBP Law College, Morwadi
2
Assoc. Prof. S.S. Maniyar Law College, Jalgaon
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Introduction
An adoption is an act of creating a legal relationship between a child and a parent through a
legal and social process.2 According to Section 2(2) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 “Adoption means the process through which the adopted child is permanently
separated from his biological parents and becomes the lawful child of the adoptive parents with all
the rights, privileges and responsibilities that are attached to a biological child”.3 This process of
adoption has a great impact on the life of a child. Therefore, the main criterion for adoption is the
welfare of the child. It is also universally recognized that adoptions should only happen when it is in
the child's best interest.4
Section 2 (9) of the JJ Act, 2015 states that the best interest of the child must be the basis for
any decision taken regarding the child, to ensure the fulfilment of his basic rights and needs, identity,
social well-being, and physical, emotional, and intellectual development.5 A family environment is
necessary for the development of a child where the child gets love, affection, and understanding.6 A
family is a place where people are connected by marriage, blood, or adoption7 but these rights can
be enjoyed only by heterosexual couples and it is discriminated against homosexual couples.
Although there is no restriction on adoption by one of the two partners of a same-sex couple it
deprives the other partner of any legal right over the child. Hence, there is no provision under the
existing laws on the adoption rights of same-sex couples.8
2
[Link]
3
Juvenile Justice (Care and Protection of Children) Act, 2015, S 2(2)
4
SYED AATIF, Adoption and LGBTQ Community. [Link]
[Link]
5
Juvenile Justice (Care and Protection of Children) Act, 2015, S 2(9)
6
Wendy D. Manning & Marshal Neal Fettro & Esther Lamidi, “Child Well-Being in Same-Sex Parent Families:
Review of Research Prepared for American Sociological Association Amicus Brief”, NCBI, August 1, 2015
[Link]
7
Barnard, A. John, Family, Encyclopaedia Britannica, May 6, 2021. [Link]
8
Shubhangi Singh, ADOPTION BY SAME-SEX COUPLES IN INDIA: A RIGHT LONG OVERDUE, Jan 13, 2021,
[Link]
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In 2018 the Apex Court in its judgment of Navtej Singh Johar v. Union of India9 legalized
homosexuality by amending the portion of Section 377 that makes adult consenting sexual activity
in a private setting unlawful. The Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ)
community's civil rights, however, have not been taken into consideration by the court. The
LGBTQ community has been engaged in a prolonged legal struggle to get fundamental civil rights
such as right to marriage and right to adoption, like others. The equal right to adoption is becoming
more significant for the LGBTQ community because it is the only realistic opportunity for Gay
couples and individuals to raise a family and have children. Additionally, research has shown that
homosexual parents can grow a child just as successfully as their heterosexual counterparts.10 Thus,
excluding the LGBTQ community from adoption rights will deprive children of potential prospective
adoptive parents and thus, cannot be called for the best interest of the child. Giving adoption rights
to the LGBTQ community will surely show a positive effect on the number of Childs adopted per
year. The purpose of this paper is to discuss the necessity of granting adoption rights to the LGBTQ
community in India.
Objectives
1. To explain the concept of adoption.
2. To discuss various laws on adoption rights of LGBTQ.
3. To discuss the judicial approach towards LGBTQ and their rights.
4. To discuss Constitutional protection for LGBTQ Minority people in India.
Indian Laws and Impediments on LGBTQ Adoption Rights
In India adoption is governed by the Hindu Adoptions and Maintenance of Act, of 1956, and
the Juvenile Justice (Care and Protection of Children) Act, of 2015.
❖ Hindu Adoptions and Maintenance of Act, of 1956 Section 711 and Section 812 of HAMA,
deals with the adoption capacity of Hindu male and female. The words “husband” and “wife”
9
(2018) 1 SCC 791
10
Elizabeth Burleson, “International Human Rights Law, Co-parent Adoption, and the Recognition of Gay and
Lesbian Families”, 55 Loy. L. Rev. 791 (2009) [Link]
11
The Hindu Adoption and Maintenance Act 1956, S. 7
12
The Hindu Adoption and Maintenance Act 1956, S. 8
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are used under Sections 713 and 814 of HAMA, implying that the Act does not recognize
adoption by same-sex couples. The Act is also silent on “third gender” adoption right.
Additionally, it is clear from a brief reading of the Act that gender is understood in binary
terms. HAMA permits LGBTQ adoption from a single parent. But, single-parent adoption
has various legal consequences. In a sense, a single parent who adopts a child would have a
legal responsibility to care for the child's needs and this deprives the other spouse of a same-
sex relationship of any legal right over the child. Thus, it is proved that the adoption
provisions under HAMA are discriminatory and it violates the adoption right of LGBTQ.
❖ The Juvenile Justice (Care and Protection of Children) Act, 2015 provides rights of
adoption to any person irrespective of their religion.15 Provisions, rules, and detailed
guidelines for adoption are laid in Adoption Regulations, 2017, framed by the Central
Adoption Resource Authority (“CARA”) under section 68(c)16 of the JJ Act 2015. CARA
is a statutory body in adoption matters under the Ministry of Women and Child Development.
Section 57 of the JJ Act and Regulation 5 of the Adoption Regulations deal with the eligibility
of prospective adoptive parents. One of the prerequisites is that “No kid shall be placed in
adoption to a couple unless they have had at least two years of solid marital relationship”.17
So again same-sex couples are not suitable to be Prospective Adoptive Parents because they
cannot establish two years of a stable marital relationship as their marriages are not yet
legalized in India. New CARA regulation has also made it possible for live-in spouses to
become prospective adoptive parents on an individual basis.18 However, it may be fairly
assumed that the request of same-sex couples would be denied by the authorities in the lack
of a clear directive on whether or not same-sex couples can get the benefit of this circular.
Similar to the HAMA, the JJ Act can also have issues brought on by the sex-reassignment
surgery of the prospective parent. The Law Commission of India strongly advises substituting
the term "parents" in place of "mother and father" in the adoption provisions under the JJ Act
13
Ibid
14
Ibid
15
Juvenile Justice (care and protection of children) Act 2015, S. 58(1)
16
Juvenile Justice (care and protection of children) Act 2015, S. 68 (c)
17
Adoption Regulations, 2017, S. 5(3)
18
Central Adoption Resource Authority, Circular, “Reconsideration of decision to allow single PAPs in live-in-
relationship”, CARA-ICA012/3/2017 (Issued on October11, 2018) [Link] [Link]
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and adopting regulations to ensure that people of all gender identities can make use of the
Act and combat its discriminatory nature.19
❖ Surrogacy Bill, as per section 2 of the Bill a “couple” means a "legally married man and
woman". This therefore suggests that getting married is a must in order to obtain the
surrogacy eligibility certificate. Considering that there is now no law permitting same-sex
marriage, and members of the LGBTQ community are consistent in their gender identity, so
it is not possible for same-sex couples to have a child together. Such denial of surrogacy to
the LGBTQ community is ultimately denial of their basic rights, which is a grave injustice
towards the sexual minorities in the country.
❖ The Transgender Persons (Protection of right) Act, 201920 passed by the Indian
Parliament to protect the rights of the community but this Act also has flaws and lacunas as
it does not recognize the marriage, adoption and parenting rights of the community.
Judicial Approach
Indian judiciary has played an important role in supporting the rights of LGBTQ (the act of
homosexuality) through its landmark judgment in various cases.
In Naz Foundation v. Govt. of NCT of Delhi21, the Delhi High Court held that section 377 of the
Indian Penal Code, imposes unreasonable restrictions over two persons (adults) having private,
consensual sexual relations. As a result, it was a clear infringement of their fundamental rights, which
are guaranteed by Indian Constitutional Articles 14, 15, and 21. Article 14 provides everyone is equal
before the law and the law protects everyone equally.22 Article 15 prohibits discrimination based on
sex, race, caste, religion, and place of birth.23 Article 21 talks about the bout right to life and personal
liberty.24
In Suresh Kumar Kaushal v. Naz Foundation25, In this case the judgment event of the Delhi Court
was overturned by the Supreme Court, and recriminalized homosexuality. A court panel comprised
of Justices GS Singhvi and SJ Mukhopadhaya ruled that because LGBTQ+ people are a "minuscule
19
Ibid
20
The Transgender Persons (Protection of Rights) Act, No. 40, Acts of parliament, 2019 (India)
21
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277
22
The Constitution of India,1950, art.14
23
The Constitution of India,1950, art.15
24
The Constitution of India,1950, art.21
25
Suresh Kumar Kaushal v. Naz Foundation, Civil Appeal No. 10972 OF 2013
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minority," they are not entitled to constitutional protection. The panel also found that Section 377 of
the IPC is not unconstitutional.
In National Legal Service Authority v. Union of India26, The Supreme Court in its land mark
judgment established the "third gender" status for hijras (transgender people). The Court ruled that
third-gender individuals had equal protection rights under the Indian Constitution. The Court further
stated that getting identification must be made based on psychological sex instead of biological sex.
In Justice K.S. Puttaswamy v. Union of India27, The Supreme Court ruled that the right to privacy
is a fundamental aspect of the Indian Constitution and flows naturally from Article 21. It was
determined in this case that everyone, regardless of gender or sex, has a right to privacy. LGBTQ
persons also have the freed-elect whomever they want under the privacy right and this right of the
LGBTQ community should be protected by the state.
In Navtej Singh Johar v. Union of India28, The Court held that section 377 of the Indian Penal
Code, which prohibits sexual behavior between two adults of the same sex, is unconstitutional. The
honorable court further ruled that this IPC provision violates Articles 14 and 15 of the Constitution
by discriminating against LGBT people based on their sexual orientation. Additionally, the court
found that section 377 of IPC restrains the LGBT individuals from realizing their identity and
violates Article 19 (1) (a) of the Constitution. In light of this, the apex court declared Section 377 of
the Indian Penal Code to be unconstitutional and decriminalized consensual sexual activity between
two adults of the same sex.
From the study of the above landmark cases, it is found that the denial of the right to adoption
to the LGBTQ community is a violation of their fundamental rights, which are given to everyone by
the Constitution of the Country. In the NALSA v. Union of India29, Case the court interpreted the
word “person” under Art 14 and held that it also covers Hijaras/transgender. Thus, they are equally
entitled to civil and citizenship rights, as enjoyed by any other citizens of this country such as rights
to marry, right to adopt, etc. In the NALSA case, the apex Court has ruled that the word "sex" under
Article 15(1) includes discrimination based on gender identity and sexual orientation. The
26
NALSA v. Union of India & Others, Writ Petition (civil) No. 604 of 2013
27
Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161
28
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
29
(2014) 5 SCC 438
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discrimination in the adoption laws in India against the LGBTQ community is based on their gender
orientation and sexual orientation. Such discrimination will not survive constitutional scrutiny as it
is grounded in and perpetuates stereotypes about the LGBTQ community constituted by the ground
prohibited under Article 15(1), i.e., “sex”. So, it is a direct violation of Article 15 of the Constitution.
Therefore, it is necessary to amend the adoption laws in India and provide equal rights of adoption
to all gender identities.30
In Justice K.S. Puttaswamy v. Union of India,31 the apex Court held the right to privacy as a
fundamental right under article 21 of the Constitution of India. The Court also states that maintaining
intimate intimacy, the sanctity of marriage, having children, and maintaining one's sexual orientation
are all aspects of privacy. Therefore, excluding the LGBTQ community from the adoption
right would amount to interfering with their right to privacy, and the adoption right is strongly related
to the sanctity of the LGBTQ community's family life. Also, in one of judgment, the Bombay High
Court held that the right to adopt is a facet of the right to life under article 21.32 The explanation
above makes clear that the "right to adopt" is an essential aspect of the right to life, and that denying
the LGBTQ community access to this right would be a violation of Article 21 of the Constitution.
Comparative Study of Foreign Jurisdictions
LGBTQ people have been facing discrimination at the international level, but few countries,
such as the UK and USA, have recognized their right to adoption. Adoption laws in the UK were
originally discriminatory against couples, allowing adoptions only to married couples or singles and
not to same-sex couples. But in 2000, England and Wales passed the Adoption and Children Act 33,
which grants LGBTQ individuals and couples the same rights as heterosexual couples to adopt
children. The Equality Act of 201034 ensures that LGBTQ people are not subjected to prejudice
during the adoption process by outlawing discrimination based on gender identity and sexual
orientation. In the UK, this marked a historic moment for LGBTQ rights. Like the UK, views in the
USA on LGBTQ adoption right have grown with time. The increasing recognition of LGBTQ people
30
Ibid
31
(2017) SC 4161
32
In Re Adoption of Payal @ Sharinee Vinay Pathak, 2010(1) Bom CR434
33
The Adoption and Children Act 2002
34
Find Law, 'Lesbians and Gay couples Rights- Adopting Child'
[Link]
stering/[Link]
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and their adoption rights is a result of the judiciary's active role in bridging legal gaps caused by both
legislative inactivity and societal stigma. In De Boer v. Snyder35 the Supreme Court of the U.S. has
stated Michigan state ban on joint adoption and marriage by the same couple which is
unconstitutional. In Obergefell v. Hodges36 the U.S. Supreme court recognized the rights of
homosexuals and ruled that discrimination against them is illegal under the constitution, which
protects individual liberty and ensures that everyone is treated equally in society, regardless of
gender. It is evident that in the United Kingdom, the legislation actively supported same-sex couples'
rights and removed social stigma. In the United States, the judiciary maintains the principles of the
constitution and supports the rights of same-sex couples, which the legislative fails to acknowledge.
In India also section 377 of IPC abrogated by the Supreme Court but in Supriyo v. Union of India37
the apex court has denied to recognise the adoption right of same sex couples which violates basic
human rights LGBTQ. India is signatory to of the Yogyakarta Principle38 India is a signatory to the
Yogyakarta Principles, which were embraced by global human rights activists in order to increase
awareness of gender identity and sexual orientation worldwide. It also declares that everyone is
entitled to freedom and equality by birth and that the government must repeal any laws that
discriminate against its citizens on the basis of their gender identity or sexual orientation. The idea
of gender equality is widely accepted as desirable and a human right; it is not unique to any one
nation39. So, it is necessary that Indian judiciary should reconsider its judgement in Supra case and
play an active role for recognition of adoption right of same-sex couple like U.S. judiciary did for
the rights of the same-sex couple. The legislative body should also take initiative for legalization of
adoption right of same-sex couple by enacting new laws or modifying the existing laws.
Conclusion
The LGBTQ people are also citizens of India and deserve equal rights in the social, economic,
and political arena. Judicial trends also show that the Hon’ble Courts have played a vital role in
making the status of LBGTQ people equal to that of heterosexuals. So, we can say that right to adopt
is a basic right. The Juvenile Justice Act and Adoption Regulations, which were passed in 2015 and
35
De Boyer v. Snyder 772 F.3d 388, 2014 WL 5748990
36
Obergefell v. Hodges 2015 SCC Online US SC 6
37
Supriyo @Supriya Chakraborty and Anr v. Union of India W.P.C No. 1011 of 2022
38
The Yogyakarta Principles,2017
39
Universal Declaration of Human Rights,1948, Article 1. ‘All human beings are born free and equal in dignity and
rights.
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2017, lagged behind the advancement of the law and society by restricting the use of adoption rights
to heterosexual couples and single individuals. These laws viz, Articles 14, 15, 19, and 21 of the
Constitution of India provides that the right to have a family is part of the right to life. If someone is
capable of caring for children, they should all have an adoption rights option. Such equal rights for
adoption would encourage adoption and give more orphan children a secure environment for their
growth, and as a result, such equal rights would be in the child's best interest. Decisions regarding
adoption should always prioritize the best interests of the child. Research consistently shows that the
sexual orientation or gender identity of parents has no bearing on a child's well-being. Adoption
agencies should focus on the character, stability, and suitability of prospective parents rather than
their sexual orientation. So, now it is need of time to legalize the adoption of the right of the LGBTQ
community. The state should not only legalize same-sex marriages, but it should also amend the
existing laws to provide legal recognition for adoption by same-sex couples.
Suggestions
Adoption rights for LGBTQ individuals and couples have been a topic of significant legal and
social progress in many countries, but challenges and disparities still exist in some regions. Here are
some suggestions on improving adoption rights for LGBTQ individuals:
1. Ensure that adoption laws do not discriminate against LGBTQ individuals and couples. Make
necessary amendments to existing laws, to clearly declare that a person's sexual orientation,
gender identity, or gender expression should not be a barrier to adoption.
2. Ensure that adoption agencies, both public and private, have non-discrimination policies in
place that protect LGBTQ individuals' and couples' rights to adopt. Hold these agencies
accountable for any discriminatory practices.
3. Make legal resources readily available to LGBTQ individuals and couples who face
discrimination during the adoption process. Legal assistance can help protect their rights and
fight against discrimination.
4. Develop and promote educational resources that expose myths about LGBTQ parenting and
emphasize the importance of a loving and supportive environment for children.
5. Develop and execute ideas and policies that support the rights of LGBTQ people and families
during the adoption process in close collaboration with LGBTQ advocacy organizations.
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6. Advocacy and awareness campaigns by LGBTQ organizations are still essential to the
advancement of adoption rights. They work to ensure that all individuals, regardless of their
sexual orientation or gender identity, can access the adoption process without discrimination.
7. Beyond legal recognition, society should actively work to create an inclusive and accepting
environment for LGBTQ individuals and families. This includes challenging stereotypes and
biases and promoting positive representation in media and education.
8. Best Interests of the Child: The primary consideration in adoption cases, regardless of the
sexual orientation or gender identity of the prospective parents, is typically the best interests
of the child. Research has shown that children raised by LGBTQ parents do just as well as
those raised by heterosexual parents in terms of well-being and development.
It's important to recognize that the legal landscape and social attitudes vary widely between countries
and regions. The goal is to create an inclusive and supportive environment where all prospective
parents are assessed based on their ability to provide a loving and stable home, rather than their
sexual orientation or gender identity. Progress in this area depends on a combination of legislative
changes, social acceptance, and advocacy efforts.
References:
Bibliography
1. Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency.
2. K.D. Gaur, Indian Penal Code, Central Law Publications.
3. M.P. Jain, Indian Constitutional Law.
Webliography
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Statutes
1. Juvenile Justice (Care and Protection of Children) Act, 2015
2. Adoption Regulations, 2017
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3. Hindu Adoption and Maintenance Act, 1956
Case Laws
1. Naz Foundation v. Govt. of NCT of Delhi, 2009 Delhi HC
2. Suresh Kumar Kaushal v. Naz Foundation, 2013 Delhi HC
3. National Legal Service Authority v. Union of India, 2014 SC
4. Justice K.S. Puttaswamy v. Union of India, 2017 SC
Navtej Singh Johar v. Union of Irs, they can create a bright tomorrow.