22, Jun 2023 | Hansi Jain

We call India a diverse country and preach Unity in Diversity. However we often forget that the meaning of the word diversity is exhaustive and does not just extend to the people from various social and ethnic backgrounds, it does not just extend to people of different religion or caste. The meaning of the word “diversity” as defined by Oxford dictionary is “the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations etc[1]”

The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India[14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15]Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1]https://www.oed.com/

[2]AIR 2018 SC 4321

[3]Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4]https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5]https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6]https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7]Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8]Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9]https://www.equaldex.com/issue/adoption

[10]Hodges – 135 S. Ct. 2584 (2015)

[11]Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12]Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13]Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14]Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15]Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16]Payal Sharinee v. Vinayak Pathak 2010 (1)Bom CR 434

Image:PTI

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