Why LGBTQIA+ couples should be allowed to adopt

Source: The post is based on the article “Why LGBTQIA+ couples should be allowed to adopt” published in the Indian Express on 20th April 2023.

Syllabus: GS – 2: mechanisms, laws, institutions, and Bodies constituted for the protection and betterment of vulnerable sections.

Relevance: About the process of adoption by LGBTQIA+ couples.

News: Recently, the National Commission for Protection of Child Rights (NCPCR) opposed the granting of adoption rights to same-sex couples and said that the move will endanger the children. On the other hand, the Delhi Commission for Protection of Child Rights (DCPCR) supported the conferral of adoption and succession rights on same-sex couples.

About adoption principles in India

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.

Central Adoption Resource Authority (CARA) permits applications from adoptive parents in live-in relationships, which it examines on a case-to-case basis.

Note: Several countries around the world, including Argentina, Brazil, Cuba, South Africa, the UK and the US have legal provisions to allow unmarried same-sex couples to adopt.

How do adoption principles hamper the adoption by LGBTQIA+ couples?

-Both the HAMA and the JJ Act envisage a forthcoming 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.

What are the various opinions supporting the adoption by LGBTQIA+ couples?

Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice emphasised the need for uniform and comprehensive legislation on adoption applicable to all, irrespective of religion, that should also cover the LGBTQI community.

In Deepika Singh v. Central Administrative Services, (2022) case the Supreme Court observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships”. These units equally deserve protection and benefits under the law.

What are the debates regarding the “best interest of the child”?

United Nations Convention on the Rights of the Child, 1989 requires the best interest of the child to be the primary consideration. Both the JJ Act and the Adoption rules aims to fulfil the best interest of the child. Indian courts have applied the principle of “the welfare of the child” in the context of adoption, custody, and guardianship cases and arrived at decisions on a case-to-case basis.

In Suzanne Du Toit Anna-Marié De Vos v. Minister for Welfare and Population Development and Others, (2002) case, the Constitutional Court of South Africa held that the exclusion of unmarried same-sex couples who are otherwise suitable to adopt, from jointly adopting children violated the principle of the paramountcy of the best interest of the child.

What should be done regarding the adoption by LGBTQIA+ couples?

Relax the criteria: Sexual orientation or marital status cannot be the sole basis for the exclusion of same-sex couples from jointly adopting as long as they meet the suitability criteria and can ensure the best interest of the child.

Remove discrimination: An adopted child being raised by a same-sex couple through single parent adoption should not be discriminated against and deprived of the rights available to an adopted child raised by a heterosexual married couple.

Both the Parliament and the Supreme Court should consider the best interest of children, as well as the fundamental right to equality and non-discrimination of children and couples identifying as LGBTQI while examining the matter.