21, Jul 2023 | CJP Team
When section 377 was decriminalised, it was a watershed movement for the country, 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. We look at same sex adoption and why it should be legal in India.
Adoption rights in India
- In India, adoption is governed by two main legislations: the Hindu Adoption and Maintenance Act, 1956 (HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act).
- Both laws forbid same sex adoption in India
- However, a lone parent may adopt an orphan, an abandoned kid, or a child who has been turned up under the JJ Act
- Under HAMA, if a Hindu woman is single, her husband has passed away, her marriage has ended, or her spouse has been determined to be legally incapable, she may adopt.
- Single males cannot adopt female child, they may adopt a male child
- Due to the necessity of a “healthy marriage” for two years under the JJ Act and the fact that same-sex marriages are not legally recognised in India, same-sex couples are also not permitted to adopt.
Jurists on LBGTQ+ Rights-
- Ronald Dworkin emphasizes the ethical foundations of rights, arguing that people have inherent rights based on their moral standing, rather than being awarded or bestowed by the government or society. These rights represent the inherent worth and liberty of people and provide defences against unwarranted intrusion or injury. Dworkin’s idea of “rights as trumps” emphasizes the importance of individual rights in determining legal decisions.
- Dworkin’s perspective argues that the rights of anyone, including same-sex couples, should be recognized and protected when applying this idea to same-sex adoption.
- He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting based on their sexual orientation. Dworkin’s paradigm would prioritize individual rights and the best interests of the child 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, with 128 countries in the process of doing so.
- The US Supreme Court’s Bergefell v. Hodgescase, which has been cited by Indian courts in various cases, has been a significant precedent for India and legalized same-sex marriages and adoption in the US. However, Indian courts have not yet legalized same-sex adoption or marriage, despite their focus on dignity, privacy, and the right to marry.
Indian constitution and same-sex adoption
- Equal legal treatment is guaranteed by Article 14 of the Indian Constitution, which also permits disparities based on outward characteristics that are rationally pertinent to the desired outcome.
- The ability to adopt is one of the fundamental and constitutional rights that the LGBTQ+ community has access to, according to the Supreme Court’s ruling in Navtej Singh Johar v. Union of India.The court found no discernible distinction between those in same-sex partnerships and people in opposite-sex relationships.
- A reading down of Articles 14 and 15 of the Constitution, would suggest that it would be unequal to deny same-sex couples the ability to adopt because of their sexual orientation.
- The right to adopt a child is seen as a crucial component of the right to life, and the right to marry and have a family is regarded an inherent right guaranteed by Article 21 of the Constitution. Denying the ability to adopt to same-sex couples would be discriminatory and go against their basic rights.
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