Decriminalised homosexual love, but the journey to endure a family is still a long-drawn dream.
Depending on the legal regulations of different nations, adoption has always been an exhausting topic because of gender.
Extensively, the adoption process is a hope for many families who cannot give birth. It is a surreal relationship with a child by not being biologically related to each other. Creating a family and assuming the responsibilities of biological parents while raising a child who was either abandoned or orphaned by their parents is the true essence of adoption.
Legal recognition of cherishing parenthood or the framework of adoption in India has been majorly governed by three legislative Acts, i.e., the Hindu Adoption and Maintenance Act, 1956 Guardians and Wards Act of 1890, and the Juvenile Justice (Care and Protection of Children) Act of 2015.
Observing the available legal frameworks, only heterosexual couples can adopt a child; no such law favours homosexuals from adopting a child. The present legal framework does not permit or prohibit homosexual couples from adopting a child. The LGBTQ community has observed a long battle for years to receive an acknowledgement of their rights, but they are still fighting for recognition as a married couple and their consequential rights, such as adoption.
Indian Legislative Scheme Concerning Adoption
Hindu Adoption and Maintenance Act 1956
Applicable to all religions such as Hindu, Jain, Buddhist, and Sikh. The adoption process followed via Hindu Adoption and Maintenance Act grants irrevocable adoption and the status of a newborn, allowing the adopted child to inherit property similar to a biological child.
Guardian and Wards Act of 1890
This Act pertains to Muslims, Parsis, Christians, and Jews, wherein adoption merely formulates a relation of a guardian and ward and doesn’t bestow the same status as the Hindu Adoption and Maintenance Act.
Juvenile Justice (Care and Protection of Children) Act 2015
This Act applies to Indian citizens while offering domestic and international adoption. This Act addresses the issues related to children in the age group of 16-18. It also addresses the issues such as adoption process delays, pending cases and other challenges in the existing Act.
Though the Acts mentioned above do not explicitly prohibit same-sex adoption, the terminologies used by not recognising same-sex couples disregard their role. Hindu Adoption and Maintenance Act 1956 uses the term husband and wife, which explicitly implies Hindu males and females and not any third gender.
Another example is the Juvenile Justice Act, which requires the couple to be in a stable relationship for two years. Since same-sex marriage is not yet recognised, the LGBTQ+ community becomes ineligible because of the nonexistence of the fundamental requisite.
Global and Constitutional Perspective Related to Adoption for Homosexual
Homosexual adoption has been controversial because it is not limited to the couple’s interests. But, it also relates to the higher interest of the child being adopted.
Adoption by a heterosexual couple or a single parent has advantages and disadvantages. But homosexuality is still considered a stigma in society that could impact the well-being of children and same-sex couples.
Millions of abandoned and orphaned children need the love and affection of a family, and child adoption by a homosexual could bring them the same. Still, it could also bring society’s potential discrimination against the child.
Global Perspective
Like India, other countries face similar issues concerning the recognition of adoption for homosexual couples. Legal and social consequences restrict the allowance and prohibition of adoption in different countries.
Countries like Belgium, Spain, Canada, and the United Kingdom have legitimised same-sex adoption. In contrast, countries like Russia and China have completely different perspectives on the same having strict policies.
In the overall context, the concept of homosexuality has to evolve to the fullest legally and socially for stringent defining of LGBTQ adoption rights in India and bestowing equal stance to the LGBTQ+ community as other citizens of India.
Constitutional Perspective
It is pertinent to note that fundamental rights such as Articles 14, 15, and 21 are the basic structure of our Constitution, and violating the same is barred. Referring to the above notion and the legislative framework concerning the adoption, discrimination based on gender is evidentiary, reflecting the unfair, unjust, and unreasonable classification.
In several apex courts judgments such as Navtej Singh Johar Vs UOI and K.S. Puttaswamy Vs UOI, it was held that the LGBTQ community owns the same constitutional and fundamental rights as other citizens and they should not be treated unfavourably on the pretext of social morality.
Recently, the National Commission for Protection of Child Rights (NCPCR) approached the Supreme Court and intervened in the ongoing legal proceedings relating to recognising same-sex marriage and its implications. The NCPCR pleaded not to allow the adoption of homosexuals. The application stated, “It is humbly submitted that allowing adoption to same-sex couples is akin to endangering the children. It is further submitted that a proper legislative system needs to be adopted regarding same-sex couples,”
Conclusion
In India, LGBTQ+ rights have been recently recognised, making it crucial for the legislative framework of India to develop according to the changing times and be more inclusive concerning homosexuality and the LGBTQ+ community. Still, gay couples or homosexuals have no legal right to adopt a child in India.
The legal position of the LGBTQ+ community has seen a vast improvement, significantly less the social disgrace they have been receiving. However, several rights still need to be addressed to give them equal stature to other citizens. Same-sex marriage is not allowed in India, so gay couples or homosexuals cannot adopt a child.
The judiciary has, to date, played a major role in uplifting the position of the LGBTQ+ community, and future developments for the community require the same sensitivity from both legislature and the judiciary.
Legalising same-sex marriage would not resolve the issue, but reviewing the existing laws and amending them according to recent times would bring an impactful change in India, for which India is known worldwide.
