Ideas of Parenthood: Why LGBTQIA+ Couples Should Be Allowed to Adopt?

Why in News?

• Recently, the National Commission for Protection of Child Rights (NCPCR) opposed the granting of adoption rights to same-sex couples as this could endanger the children.
• On the other hand, Delhi Commission for Protection of Child Rights supported the adoption and succession rights of same-sex couples.

 

Adoption law in its current form

• The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act): Allows heterosexual married couples, and single and divorced persons to adopt.
• The Hindu Adoption and Maintenance Act, 1956 (HAMA): Permits any male or female Hindu of sound mind to adopt, and for couples to adopt with the consent of their spouse.

 

Limitations of these laws

• Only a single person who identifies as LGBTQI can adopt a child. But two people in a homosexual relationship cannot "Jointly" adopt a child.
• Both the HAMA and the JJ Act require adoptive couple to be heterosexual and married.
• In a situation where one partner in a non-heterosexual relationship adopts a child as a single parent, the other partner is deprived of legal recognition as an adoptive parent.
• The child too is denied the rights and benefits that arise within a parental relationship and will not be entitled to the property of the other parent.

 

Primary considerations in the adoption process

• The primary consideration required by UN convention on the Rights of Child (1989) is “The best interest of the child”.
• In India, according to JJ act “the best interest of the child” is to make decision concerning child’s adoption after ensuring “basic rights and needs, identity social well-being and physical, emotional and intellectual development”.
• The Adoption Regulations specify “child’s best interests shall be of paramount consideration while processing any development placement.”
• Indian courts have applied the principle “the welfare of the child” in adoption, custody and guardianship cases.

 

Prospective Solutions

• The best interest of the child cannot be exclusive. Other’s human rights should be considered as well.
• Constitutional Court of South Africa said in a case that exclusion of unmarried same-sex couples from jointly adopting children violates the principle of the paramountcy of the best interest of the child, as well as the right to dignity of the parents.
• Merely sexual orientation or marital status cannot be the sole basis for the exclusion from jointly adopting, provided that they should meet the criteria and ensure “the best interest of the child”.
• Lack of legal recognition of same sex marriage should not be used to deny the adoption. Central Adoption Resource Authority (CARA) permits applications from adoptive parents in live-in relationships.

 

Way Forward

• Family units are evolving beyond the conventional norms of heterosexual marriages. These families should not be discriminated against.
• Supreme Court acknowledged this fact in Deepika Singh vs Central Administrative Services (2022) and said “familial relationships may take the form of domestic, unmarried partnerships or queer relationships”.
• These atypical manifestations of familial units need to be protected and given benefits under the law.
• Both the Parliament and the SC should consider the best interest of children, as well as the fundamental rights to equality and non-discrimination of children and couples identifying as LGBTQI.

 

Conclusion

Since family units are evolving beyond the conventional norms of heterosexual marriages, there is a need to reframe the laws keeping the LGBTQ community in mind. The laws should not be exclusive in nature to ensure equality and non-discrimination.

 

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Q1) Can married couples adopt a child?

The consent of both spouses is necessary for the married couple to be considered eligible as prospective adoptive parents?

 

Q2) What does the adoption law say for LGBTq+ community?

A single person belonging to LGBTQ can adopt a child but two people in a homosexual relationship are not eligible to adopt JOINTLY.

 

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Source: The Indian Express