“We are lesbian couple, how can we adopt a child in India”
Couples who have been married for at least two years, as well as single women, can adopt a child of either gender, according to India’s Adoption Regulations, 2017, as published on the official website of the Central Adoption Resource Authority (CARA), however a single man can only adopt a male child. Couples in live-in relationships, same-sex couples, and transgender people aren’t mentioned at all, almost as if they don’t exist.
Same-sex couples cannot adopt because there is no such provision. They are unable to adopt because there is no provision for them to do so.
Adoptions by members of the LGBTQ+ community are hindered by more than just government officials. When Maneka Gandhi, the Union minister for women and child development, eased the adoption laws to enable unmarried men and women to adopt in 2015, some adoption agencies were unhappy with the move.
We need more clarity on this because there is now nothing in the legislation that expressly prohibits or encourages adoption by LGBTQ+ people.
Surrogacy and in-vitro
According to polls in the United States, about 70% of same-sex parents are raising their biological children, while about 20% have adopted children. The biological options available to LGBTQ+ couples who want to start a family fall under the umbrella of assisted reproductive technology. Surrogacy and in-vitro fertilisation (IVF) are examples of this.
In India, accessing these services is difficult for the LGBTQ+ community, and it is expected to become even more difficult in the future. Most LGBTQ+ people have no choice but to forget about ever having children until true change occurs, according to the LGBTQ+ community.
In India, same-sex marriages are illegal, hence homosexual couples are unable to adopt a child jointly. The law prevents LGBTQIA+ couples from adopting children together, proving that they are still not treated equally in the eyes of the law. Although the reinstatement of Article 377 has decriminalised homosexuality in India, the Indian mindset continues to stigmatise LGBTQIA+ relationships.
An “inferior couple,” such as gay or lesbian couples, cannot be granted a child. In India, homosexuality is still frowned upon.
While LGBTQIA+ couples are not eligible to adopt, India’s orphan population is growing by the day. Surprisingly, rather than being raised by homosexual and trans couples, the law expects abandoned children to be raised without a family.
The new surrogacy bill also makes it illegal for homosexual couples to have their own children through a surrogate mother. The bill, which was introduced to prevent commercialization of surrogacy and potential exploitation of the surrogate mother and child, restricts surrogacy to married Indian couples, thereby disqualifying others based on their marital status and sexual orientation.
What the law says
Adoption rights for same-sex couples are a utopia in India, despite everything else that is against same-sex love. Unfortunately, India has yet to recognise same-sex marriage, let alone rights to adoption for same-sex couples.
They can cohabit and enjoy the right of companionship in live-in relationships, but they cannot marry, adopt, or have a child through surrogacy.
The traditional definition of ‘family’ is incomplete without these privileges. Even after Section 377 was repealed, anyone who defied heterosexual conventions was shunned. The stigma around same-sex love is so strong that it frequently trumps human rights. No active declaration of rights for same-sex couples has been made.
The battle for legal and societal acceptance continues. This is due to the fact that they do not have access to basic civil rights such as marriage, maintenance, adoption, succession, and other economic benefit schemes that are only available to married couples.
Indian Laws and Demand for Adoption Rights for Same-Sex Couples
The Hindu Adoption and Maintenance Act, 1956, the Guardianship and Wards Act, 1980, and the Juvenile Justice (Care and Protection of Children) Act, 2000 govern adoption in India.
Only married people or single men and women who are bound by Hindu laws can adopt under the Hindu Adoption and Maintenance Act of 1956. The Guardianship and Wards Act of 1980 also allows people of different faiths, such as Muslims, Christians, Parsis, and Jews, to become guardians.
The Juvenile Justice (Care and Protection of Children) Act, 2015, can be adopted by anyone, regardless of religion. Adoption Regulations, 2017, drafted by the Central Adoption Resource Authority (“CARA”), a statutory authority under the Ministry of Women and Child Development, include provisions for this.
This law does not expressly ban same-sex couples from adopting. Nonetheless, it limits adoption to married couples who have been married for at least two years and have a strong marital relationship.
Marriage is, in most situations, a requirement for adoption, as evidenced by these regulations. However, because laws do not address same-sex marriage and the Centre is unwilling to acknowledge same-sex marriage, it is a difficult process for such couples to adopt.
The only other option is for them to adopt under one of their partners’ names. Custody and maintenance issues could get even more complicated as a result of this.
What can possibly be done
Simply decriminalising LGBTQ people would not provide comprehensive justice to the community. Acceptance is required on both a legal and social level, as a result of civil rights.
Legalizing same-sex marriage would be the first step toward establishing adoption rights for same-sex couples in a country like India, which is rich in customs and culture. Marriage, on the other hand, is predominantly viewed as a religious ceremony in India, and is governed mostly by personal laws and customs. As a result, for Indian society to accept same-sex love and marriage, a paradigm shift is required.
Courts are now magnifying the rights of LGBTQ people by adopting a progressive approach. It’s high time for the legislation to grant the LGBTQ people their long-overdue rights. Despite the fact that society is not prepared in this circumstance, the government must intervene to help LGBTQ couples.
Emotions, as well as cultural and societal standards, play a role in marriage. When two individuals get together to form a family and raise children, it is critical that they love and respect each other.
Even single parents find the notion that same-sex couples are incapable of raising children to be ludicrous and insulting. Children have the right to be raised in a loving and caring environment.
The parents must be physically fit, financially sound, intellectually aware, and highly motivated to adopt a kid, according to the Juvenile Justice (Care and Protection of Children) Act, 2000. And that has to be the only thing that comes to mind. The quality of parenting cannot be judged depending on the guardian’s sexuality or marital status. These are the grey areas in which the government must evolve rather than imitate social morals.
In India, homosexuality was decriminalised in 2018, and the rights of LGBTQIA+ people were just recently recognised. It’s worth noting that both acts controlling adoption were enacted at a time when homosexuality was illegal. Since the status has been legally changed, it is now necessary to realise the community’s rights and receive treatment that is equivalent to that of the heterosexual portion of society. Governments should support sensitization efforts to dispel falsehoods and cultural stigmas around community members’ lifestyles and relationships.
The Navtej Singh Johar decision was a significant step forward in improving the community’s place in society, but both the judiciary and the legislature still have a lot of work to do. Not only should the state allow same-sex marriages, but it should also alter existing legislation to recognise adoption by same-sex couples.
Sources:
https://www.google.com/amp/s/theprint.in/opinion/where-are-indias-queer-parents/608267/%3famp
https://www.google.com/amp/s/www.lawctopus.com/academike/adoption-rights-for-same-sex-couples/%3famp=1
https://www.google.com/amp/s/www.iralr.in/amp/adoption-by-same-sex-couples-in-india-a-right-long-overdue
https://nyaaya.org/questions/can-same-sex-couples-adopt-in-india/