The Right Of Same Sex Couples To Adopt A Child
The right of same-sex couples to adopt a child is a subject of fierce debates
globally. Some countries fully recognize the rights of same-sex couples to adopt
a child, while others are still contemplating it.
Though same-sex marriage has not yet been recognized by the Indian Legislature,
a significant step has been taken in this direction by the Hon'ble Supreme Court
of India in the Judgement namely Navtej Singh V. Union of India, where
Section 377 of the Indian Penal Code (IPC) has been struck down by the Supreme
This was a landmark judgment in India's legal history, as it decriminalized
homosexuality and recognized the rights of the LGBTQ community. The
afore mentioned Judgement struck down the penal consequences of Section 377
India Penal Code, in relation to consensual sex between two adults. It was great
relief to LGBTQ community. But right to adopt a child for such same sex couple
still remains a distance possibility.
As per the Indian law, adoption is governed by the Juvenile Justice (Care and
Protection of Children) Act, 2015, and Hindu Adoption and Maintenance Act, 1956.
Neither of the acts specifically prohibits same-sex couples from adopting a
child. However, there is no mention of same-sex couples either, creating a legal
vacuum that leaves the matter open to interpretation.
Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act,
2015, defines adoption as the process through which the adopted child is
permanently separated from his biological parent or guardian and becomes the
legitimate child of his adoptive parents. In other words, adoption creates a
permanent legal relationship between the adoptive parent and the adopted child.
On the other hand, the Hindu Adoption and Maintenance Act, 1956, governs
adoption rights for Hindus only. Section 8 of the Act provides that any Hindu
male who is of sound mind and is not a minor may adopt a child. However, if the
adoptive parent is a married couple, both should give their consent to the
The lack of clarity regarding same-sex couples' adoption rights in India has led
to a series of court battles. In April 2019, the Madras High Court held that a
lesbian couple could not be denied the right to parent a child merely because of
their sexual orientation.
The court directed the Tamil Nadu State government to consider their application
for adoption as per the guidelines. The case arose from the petition filed by
the couple seeking to adopt a child.
The couple had married in the United States and returned to India to start a
family. The court observed that the Juvenile Justice (Care and Protection of
Children) Act did not bar same-sex couples from adopting a child.
This Judgement came in the year 2019, titled as Arun Kumar v Inspector General
of Registration, Tamil Nadu , where by the Hon'ble High Court of Madras has
interpreted the term bride to include the transwoman also.
However, in another case, the Karnataka High Court held that a gay couple could
not be granted the right to adopt a child. The court refused to consider their
plea, citing that the Indian law did not recognize same-sex marriage.
The case arose when two American men, in a committed relationship, sought to
adopt a child through surrogacy in India. The court observed that the couple
could not be granted the right to adopt the child as the Indian law did not
recognize same-sex marriage.
The contrasting judgements of the Madras High Court and the Karnataka High Court
highlight the conflicting nature of the Indian law regarding same-sex couple's
Internationally, many countries have already granted the right of adoption to
same-sex couples. In the United States, same-sex marriage was legalized in 2015,
granting same-sex couples the legal right to adopt a child.
In Canada, same-sex couples have been legally permitted to adopt a child since
1999. In Germany, same-sex couples have been granted the right to adopt a child
In Australia, the Parliament passed a law in 2017, legalizing same-sex marriage,
granting same-sex couples the right of adoption. Progress has been slower in
some countries like Italy, where same-sex couples are still prohibited from
adopting a child.
Live-in relationships have also become more socially acceptable in India in
recent years, which is a positive development. However, the question remains as
to whether same-sex couples should be allowed to adopt children or not. This
issue has generated a lot of debate and controversy in India, with proponents
and opponents presenting arguments for their respective positions.
The primary argument against same-sex couples adopting children is that children
need both a mother and a father figure to grow up in a balanced and healthy
Opponents of same-sex adoption also argue that it goes against Indian cultural
values and traditions. However, there is no empirical evidence to support these
claims, and they are based on stereotypes and prejudice.
On the other hand, proponents of same-sex adoption argue that every individual,
regardless of their sexual orientation, should have the right to adopt a child
if they can provide a loving and nurturing environment for the child.
There is no evidence to suggest that same-sex parents are any less capable of
raising children than opposite-sex parents. Moreover, denying same-sex couples
the right to adopt is a violation of their fundamental human rights.
The right of same-sex couples to adopt a child remains a contentious issue, with
debates raging on its legality and morality. India's legal system lacks clarity
on this issue, leading to varying interpretations and court battles. While some
courts have upheld the right of same-sex couples to adopt a child, others have
In light of the international trend towards granting the right of adoption to
same-sex couples, India may need to revisit its laws to provide clarity on this
Though India has made significant progress in recent years in recognizing the
rights of the LGBTQ community. However, the societal attitudes towards same-sex
relationships and adoption are still evolving. This is one aspect of matter. The
another aspect of this issue is that making laws is one thing, but changing
societal attitudes is another.
For instance, the Sati system, also known as the practice of widow burning or
self-immolation, was a deeply ingrained and longstanding cultural practice in
India. Raja Ram Mohan Roy's efforts to abolish the Sati system were met with
resistance from various sections of the Indian society.
Through these efforts, Raja Ram Mohan Roy was able to gradually persuade the
Indian society to accept the reform of the Sati system. In 1829, the British
Governor-General Lord William Bentick passed a law banning the practice of Sati,
which was met with widespread protests and violent reactions from the
However, over time, the ban was enforced and gradually accepted by most parts of
the society, leading to the eventual eradication of the Sati system. Before
banning Sati Pratha, Raja Ram Mohan Roy had to make the Indian Society accept
such a reform. Only after that did the ban of the Sati system become successful.
Similarly, in spite of the regulations outlined in India's Dowry Prohibition
Act, passed in 1961, which forbids the giving or receiving by either party of
any money, property, or any other valuable thing, the Dowry system continues to
Other laws, such as the Domestic Violence Act of 2005 and the Protection of
Women Against Sexual Harassment in the Workplace Act 2013, have been put in
place to address aspects of the Dowry system, but they have proved futile in
Until society acknowledges the devastating effects of this tradition and the
need to condemn it, the Dowry system will persist. It ultimately requires a
change in attitudes and beliefs, and it all starts with raising awareness and
standing together to demand a better world where there is no room for dangerous
systems like Dowry.
Therefore, it is essential to make the Indian society accept the rights of
same-sex couples to adopt a child, and merely making laws will not serve the
purpose. It is crucial to start a dialogue and raise awareness about the
positive aspects of same-sex adoption and how it can benefit the child. This can
be achieved through media campaigns, public debates, and community outreach
In the present day scenario same-sex adoption appears to be a complex issue that
requires careful consideration and dialogue. Every individual, regardless of
their sexual orientation, should have the right to adopt a child if they can
provide a loving and nurturing environment for the child.
It is crucial to change societal attitudes towards same-sex adoption through
education, awareness, and dialogue. Only then can we truly create an inclusive
society that respects the rights of all individuals. Without creating the
acceptance and recognition from the Society, the law will remain toothless.
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