Adoption Rights Of Same-Sex Couples In India

Currently, the Supreme Court of India is looking at same-sex marriage's legal position in India and this has given rise to other important concerns, i.e. can gay couples adopt a child? Many critics have pondered their views and opinions on this subject on various lines and the adoption of a child by homosexual people has become a contentious issue in recent years. While some countries and states have legalized adoption by same-sex couples, others still do not recognize this right. This has led to debates about the legal implications of allowing or denying such adoptions, as well as discussions about the ethical considerations involved. 

Adoption refers to the legal and social process of creating a parent-child relationship, as outlined in Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Laws related to adoption define this process, as involving a biological child being legally transferred from one set of parents to another or a single parent. Unfortunately, adoption policies in India have been influenced by social prejudices and a lack of consideration for the welfare of children. However, amendments to legislation such as the Juvenile Justice Act, of 2000 have been made to promote the principles of secularism and to facilitate adoptions regardless of the communal or religious backgrounds of the child or the parents involved.

Legal Framework

In India, adoption by same-sex couples is not currently allowed under the law. At present, only a heterosexual married couple is eligible to adopt a child through the Central Adoption Resource Authority (CARA). It is the primary organization in India responsible for regulating and overseeing domestic and international adoptions of children. In adherence to the Hague Convention on Intercountry Adoption of 1993, which was adopted by the Indian government in 2003, CARA has been designated as the central authority to handle inter-country adoptions. This restriction has led to several high-profile court cases, with some individuals and advocacy groups challenging the constitutionality of this law.

In 2018, a High Court in India made a significant statement on the issue of discrimination based on sexual orientation, noting that such discrimination violates the fundamental rights of same-sex couples. The court highlighted the importance of eliminating discrimination and ensuring equality for all, regardless of sexual orientation. The matter was then referred to the Supreme Court for further deliberation and resolution. Many activists and legal experts have emphasized the need for greater inclusivity in adoption policies and have argued that denying same-sex couples the opportunity to adopt a child is a form of discrimination. However, it remains to be seen whether there will be any significant legal changes shortly.

Constitutional provisions on the rights of the LGBTQ+ COMMUNITY

In India, there are no explicit constitutional provisions on the rights of the same-sex couple regarding the adoption of a child. However, the Constitution of India guarantees fundamental rights to all citizens, including the right to equality and the right to life and personal liberty. The Constitution prohibits discrimination based on religion, race, caste, sex, or place of birth.

The right to equality is enshrined in Article 14 of the Constitution, which states that all individuals are equal before the law and are entitled to equal protection of the law. This means that any discrimination based on sexual orientation or gender identity in the context of adoption would be unconstitutional.

Furthermore, Article 21 of the Constitution guarantees the right to life and personal liberty, which has been interpreted by the Indian courts to include the right to dignity, privacy, and autonomy. The right to dignity and privacy includes the right to form intimate relationships, including those that include same-sex couples.

In 2014, the Supreme Court of India recognized the rights of transgender individuals as a third gender and held that they should be granted all rights under the Constitution and directed the government to take steps to ensure the welfare and social inclusion of all transgender persons.

Paradoxically, the law allows for a child to be raised as an orphan without both parents rather than being raised by homosexual and trans couples, as LGBTQIA+ couples are not eligible to adopt. This is a matter of concern as India's orphan population is growing by the day. According to a recent study by an international charity for orphaned and abandoned children, India currently has 20 million orphans, and this number is expected to rise to 24 million by 2021. Unfortunately, the majority of orphanages provide abysmally inadequate services. The denial of adoption rights to members of the LBTQ community is a violation of their dignity since these discriminations are based on their sexual orientations and not on their capacity or merit as a parent.

Global Trends In Adoption By Same-Sex Couples

Can gay couples adopt a child a question that is not only limited to India but to foreign jurisdictions as well? Same-sex couples are still deprived of adoption rights in several foreign countries. In India, legislation such as the Hindu Adoptions and Maintenance Act 1956 and Juvenile Justice (Care and Protection of Children) Act, 2015 permits a single individual to adopt a child, regardless of their sexual orientation or gender. However, same-sex couples are discriminated against as the law overlooks their adoption rights. Conversely, some countries in the European Union, the U.S., and South Africa have passed progressive laws regarding the adoption rights of same-sex couples. Even the United Kingdom, which once criminalized homosexuality in India, has legalized joint adoption by same-sex couples, in contrast to their Indian counterparts.

USA

The legal implications for the adoption of a child by same-sex couples in the United States vary from state to state. In some states, such as California and Massachusetts, same-sex couples are allowed to adopt children without any restrictions or additional requirements. However, other states have more restrictive laws that may require additional steps before an adoption can be finalized. In addition, there is also a federal law that applies when it comes to adoption by same-sex couples.

Europe

In some European countries, such as the UK and France, same-sex couples are allowed to adopt children. However, other countries have more restrictive laws that prohibit or limit the ability of same-sex couples to adopt children. In addition, there may be additional restrictions on who can legally adopt a child depending on their marital status and/or sexual orientation. For example, some countries require married couples to both be present when adopting a child while others do not allow single people or unmarried partners to adopt at all. Finally, it is important to note that even if two individuals are legally able to adopt a child together in one European country they may still face difficulties if they try and move with the adopted child across borders into another European nation due to different regulations regarding cross border adoption between nations within Europe.

Challenges Faced In Adoption By Same-Sex Couples in India

Social Challenges

From a social standpoint, the idea of same-sex couples adopting a child is still a relatively new concept in India and can be met with resistance from family members, society, and even the legal system. There are several prejudices and biases against same-sex couples in India, and these can manifest in discriminatory behavior towards them, including the denial of adoption rights.

Legal Challenges

The current adoption laws in India are biased towards heterosexual couples, as only they are allowed to adopt a child through the Central Adoption Resource Authority (CARA). Same-sex couples are not legally recognized as potential adoptive parents, and this can be a significant barrier for them. Moreover, the legal process of adoption is complicated and time-consuming, and the lack of specific provisions for same-sex couples can create additional hurdles. Some of the other legal issues that same-sex couples may face include guardianship, inheritance, and child custody.

Challenges in the Adoption Process

Gay couples face several challenges during the adoption process in India, both from a social and legal standpoint. Some of these challenges include:

1. Legal barriers: The current adoption laws in India are biased towards heterosexual couples, and only they are allowed to adopt a child through the Central Adoption Resource Authority (CARA). Same-sex couples are not legally recognized as potential adoptive parents, and this can create significant barriers for them.
2. Social stigma: There are still several prejudices and biases against same-sex couples in India, and these can manifest in discriminatory behavior towards them, including the denial of adoption rights. Many people still hold conservative views and believe that children should be raised by heterosexual couples only, which can make it challenging for gay couples to adopt.
3. Limited support: Same-sex couples may face limited support from their family and friends when trying to adopt a child. They may also find it challenging to find a support system for other gay couples who have gone through the adoption process in India.
4. Lack of legal protections: Even if a gay couple is successful in adopting a child, they may face legal challenges, such as guardianship, inheritance, and child custody, due to the lack of specific provisions for same-sex couples.
5. Adoption agency biases: Some adoption agencies in India may be biased against gay couples, making it harder for them to adopt a child. In some cases, agencies may even refuse to consider them as potential adoptive parents.

Conclusion

So, to sum it up, adoption can be quite a complicated process in India. Several laws and policies are in place to ensure are regulated properly, like the Juvenile Justice Act and CARA. However, even with these measures in place, same-sex couples still face a lot of challenges when it comes to adopting due to social stigmas and legal restrictions. It's important to raise awareness and educate people about the rights of the LGBTQ+ community and to make sure that they are not discriminated against based on their sexual orientation. With some changes and reforms to the current adoption laws, same-sex couples can have the same opportunities to adopt and provide a loving home to children in need.