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Advocating for the Adoptive Rights of Homosexual Couple

On April 25, 2023, [1]Senior Advocate Menaka Guruswamy remarked before the Supreme Court that adoption is covered by the Juvenile Justice Act, 2015, which happens to be a civil law and which cuts across all communities. The latitude of the Juvenile Justice Act must expand to include different gender roles, in addition to the plurality of religions. She had also previously argued that the question of marriage is not just limited to dignity but it also paves the way for a bouquet of rights like inheritance, insurance, visas, and most importantly, adoption.

This argument is in line with the previous argument of the petitioners that the right to marry a person of their own choice is a fundamental right guaranteed under [2]Article 21, and marriage is a tool that offers societal protection. This has reignited the debate as to why there should be an adoption right for a homosexual couple [3]. In the year 2018, the Supreme Court laid the foundation for the many civil rights that the queer community cannot be deprived of when it decriminalised homosexuality. Justice Indu Malhotra, who happened to be the only female judge on the bench, categorically stated that:
"History owes an apology to the members of the LGBT community and their families". This signifies that the life of the queer community in India must not become a mere animal existence; they deserve a life full of dignity and respect because they are equal citizens of this country. So, to ensure a life full of dignity, the civil rights of the queer community must be recognised.

If the court recognises the right to marriage of a same-sex couple, then it will grant all their civil rights, and everything else, including the dignity of the queer couple, will follow.

What is the journey traversed so far that characterizes adoption as a rudimentary right for queer people?

One of the most fundamental civil rights is that of adoption. Adoption entails the process of taking up a child through a legal process and raising the child as one's own. [4]Heterosexual couples can very easily adopt a child under the provisions of the [5]'Juvenile Justice Act, 2015', and the [6]Hindu Adoption and Maintenance Act, 1956. After 2015, it should have been easier for a gay couple to adopt a child because the Juvenile Justice Act is a civil and secular law. However, a homosexual couple still cannot adopt a child, and they can do so only as a single parent. However, this deprives a gay couple of the opportunity to raise a child who also deserves the love, care, and affection of both parents.

Denying the right of adoption to homosexuals is deeply problematic because, in the case of [7]Naz Foundation vs. Govt. (NCT of Delhi), the Court affirmed that discrimination based on sexual orientation remains inseparable from discrimination based on sex merely because the former is based on stereotypical notions of sex and gender. This falls in line with the recommendation of the J.S. Verma Committee Report, which reiterated that 'sex' under Article 15 must also include 'sexual orientation."

Additionally, not granting the right to a homosexual couple to adopt also deprives the child of various benefits, like acquiring the property of both parents. So, the current paradigm sees inherent discrimination against the queer community in adoption and related matters. [8]

By not granting this right to homosexuals, we are casting doubt upon the purity of the relationship between two queer people because, despite being in a long-term sexual relationship, they nonetheless cannot name their relationship and raise their own child. If the 2018 decision is seen in isolation from these rights, then it would imply that a same-sex relationship is merely narcissistic, meant only for short-term sexual pleasure, and devoid of any moral values. This is so ironic because the ones who advocate for the moral ethos repudiate their moral ideology by indulging in acts that are not so moral. This ideology acts as a serious obstruction to transcending the "second-class" status of homosexuals in India.

Why does the contention that homosexual couples are mentally and psychologically unfit for adoption not hold any water?

[9]Section 5(3) of the HAMA lays down "stable marital relationship" as one of the conditions for adopting a child. This condition of a stable relationship is reiterated again under Section 5(4) of the Adoption Regulations, 2022. [10]The NCPCR [National Commission for Protection of Child Rights], which is the guardian of the children's rights, contends that no homosexual couple can adopt a child under the provisions of either the Juvenile Justice Act or the Hindu Adoption and Maintenance Act.

If such is the case, then it implies that the relationship endured by homosexuals is an unstable relationship, which leads us to classify them as two unstable individuals. However, [11]the definition of "mental illness" provided under the Mental Healthcare Act, 2017 made it unequivocal that not conforming to the social, cultural, or moral values and ethos attached to a community will not come under the purview of "mental illness."

In the case of [12]Navtej Johar v. Union of India, the term "sexual orientation" was defined. It was said that "sexual orientation" is a natural and biological phenomenon. [13]'Sexual orientation' encompasses the tendency to feel sexually attracted to someone of a different gender or of the same gender. This tendency is determined solely by neurological factors. The court acknowledged that the state cannot discriminate against any individual merely based on their 'sexual orientation'. If such discrimination is caused, it will be a grave violation of Article 14 of the Constitution. Besides that, the U.S. Supreme Court in the case of [14]Lawrence et al. vs. Texas held that 'homosexuality is the normal aspect of human sexuality'. This proves beyond doubt that a homosexual couple is mentally and psychologically fit to adopt a child.

What are the empirical studies that suggest the streamlined and full growth of a child under the coparenting of a same-sex couple?

[15] In the Netherlands, the government conducted a study of a child aged between 4 and 11 living in the custody of a homosexual couple. It was empirically proven that in cases where the child suffers mentally and emotionally, it is not due to the family structure. Rather, the disturbance caused to the child is due to the transition process when a child passes into the custody of a homosexual couple from a heterosexual couple.

This disturbance caused to the child can also be found in cases of divorce, remarriage, death of one parent, etc., and is not peculiar to a homosexual couple. So, there is no evidence that suggests that the homo family unit or structure contributes to the mental and psychological disruption of the child, if any disruption is caused[16].

The probable reason why a child does not suffer from mental and emotional agony under the guardianship of a homosexual couple is because of the conditions prior to the adoption of the child. The adoptive parents must live together for at least three years before they start the adoption procedure. Their cohabitation must be established through an agreement from the personal records database [BRP], and before adopting the child, they must raise the child together for a period of one year. This ensures that a child is comfortable with the couple and that no harmful repercussions will be borne by the child once the child is adopted[17].

The recent studies conducted also suggest that there is no notable difference between the psychology of children raised by homosexual and heterosexual couples. In fact, it has been observed that such children are normally raised in a stable social environment. This is because a same-sex relationship promotes a greater sense of deviation from the conventional and orthodox norms of society and grants them the freedom to make their own life decisions. This also helps in raising the compatibility and durability of the relationship between such children and their parents.

In a nutshell, the right to adoption is a quintessential civil right of the queer couple, and there is no reason as to why they must be kept on a different pedestal when it comes to exercising their constitutional rights. These rights can be exercised when the court reads the statute in such a way that they are not excluded from the mainstream of society.

End-Notes:
  1. The Indian Express, https://indianexpress.com/article/explained/supreme-court-same-sex-marriage-hearing-live-updates-8561754/ (last visited Apr 26, 2023).
  2. India Const. art. 21.
  3. The Economic Times, https://m.economictimes.com/news/india/parliament-panel-recommendation-on-adoption-raises-bigger-question-of-recognising-same-sex-union-experts/articleshow/93455670.cms (last visited Apr 25, 2023).
  4. Shubhanghi Singh, Adoption by Same-Sex Couples in India: A Right Long Overdue, IRALR (Apr 25, 2023, 10:07 PM), https://www.iralr.in/amp/adoption-by-same-sex-couples-in-india-a-right-long-overdue.
  5. Juvenile Justice Act, 2015, Section 2 sub clause 2, No.2, Acts of Parliament, 2015 (India).
  6. Hindu Adoption and Maintenance Act, 1956, Sections 5-9, No. 78, Acts of Parliament, 1956 (India).
  7. Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619.
  8. Legal Recognition of Same-Sex Marriage Rights in India, CNLU LJ (9) [2020] 158
  9. Hindu Adoption and Maintenance Act, 1956, Sections 5 sub clause 3, No. 78, Acts of Parliament, 1956(India).
  10. The Times Of India, https://m.timesofindia.com/india/adoption-by-same-sex-couple-should-not-be-allowed-ncpcr-to-sc/amp_articleshow/99567635.cms (last visited Apr 26, 2023).
  11. Mental Healthcare Act, 2017, Section 3(3)(a), No. 10, Acts of Parliament, 2017 (India).
  12. Navtej Singh Johar v. Union of India, (2018) 1 SCC 791
  13. Legal, supra note 8.
  14. Lawrence et al v. Texas, 2003 SCC OnLine US SC 73
  15. Daniel Potter, Same-Sex Parent Families and Children´┐Żs Academic Achievement, 74 Journal of Marriage and Family, 556-571 (2012).


Written by Harshit Lashkari (2nd year student at DNLU Jabalpur) and Prerna Choudhary (2nd year student at DNLU Jabalpur)

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