Parenthood is always a choice, but who can adopt and what gender can they adopt is always a topic abiding by the law of different nations. Many countries have banned gay adoption and have even passed a law forbidding states to recognise gay adoption.
Legal barriers in India
In India, adoption is regulated by the HAMA (Hindu Adoptions and Maintenance Act, 1956) and the JJ Act (Juvenile Justice Act). Under HAMA, Hindus, Jains, Sikhs, and other religions under Hindu Laws can adopt a child, while the JJ act gives the right to adoption irrespective of the religion. HAMA in sections 7 and 8 refer to parents as ‘husband’ and ‘wife’, which automatically fails to recognise same-sex couples as parents.
CARA (Central Adoption Resource Authority) is formulated under the Ministry of Women and Child Development and is the topmost body to regulate the procedures for adoption in the country and inter-country as well. The CARA has laid few eligibility criteria, but they seem to be biased toward homosexual couples.
The decriminalisation of stringent section 377 emerged as a ray of hope for the LGBTQIA+ community, but the right to marry is still in court. The eligibility criteria laid by CARA that ‘No child shall be given to a couple for adoption unless they have at least two years of a stable marriage’ completely barricade the right of homosexual couples to extend their family. The collision between being unable to have a registered marriage and desiring a child prohibits homosexual couples from adopting a child. Although one of the partners can adopt a child as a single mother or father, this will completely sideline the legal rights of another parent on the child.
What does the constitution say?
The above-stated acts violate articles 14, 15, and 21 of the Indian Constitution that can be challenged in court. The ‘Right to equality, ‘Prohibition of discrimination on the ground of religion, race, caste, sex, or place of birth’, ‘Right to Life and Personal Liberty’ are violated as discrimination is happening on the grounds of sexual orientation. Sexual liberty has been portrayed as a hurdle to parenthood, which is draconian on its own.
Hurdles and consequences of adopting
The lack of laws on adoption for LGBTQIA+ and horrific hurdles to adoption have led many Indian LGBTQIA+ couples to migrate to countries having more legal freedom. Not only laws but the stereotypes attached to same-sex parenthood evolved as another unjust reason resulting in creating a false stigma about the same.
There are fewer debates regarding adoption rights for the LGBTQIA+ community because they are already struggling for their marriages to be recognised in India.
Statistics about adoption in India
According to the statistics of the apex body, CARA (Central Adoption Resource Authority) for adoption in India mentioned below has been presenting the fact how graph falls and the number of children adopted decreases. There are an enormous number of children that need to be adopted and deserve to live a happy life.
Equal rights for adoption to the LGBTQIA+ community will not only fulfil their desire to extend their families but also give a ray of hope to lakhs of abandoned children existing and wishing for a family.
Tackling arguments about gay couples and adoption
Society is evolving, and so the idea of the nuclear family with a father and mother should not be prevalent. Few nations, including Austria, Netherland, Spain, Portugal, etc., have been recognising gay adoption, which is appreciable. The argument that comes forward is that children raise in homosexual households are likely to be extra-sensitive. But is it?
Some surveys suggested that gay couples can provide a loving and stable upbringing as heterosexual couples. Someone’s parenting should not be judged based on their sexuality.
Arguments stating that both a male and female will be required in a child’s life to have a normal upbringing can be contradicted by the fact that in the case when one parent or both die, children are usually brought up by their aunts, uncles, or NGOs. In an upbringing, what matters is the values and morals; it doesn’t matter who is introducing them.
Moreover, adoption gives fair legal rights to both parents because both will not be biological but legal parents of the child. It has been presented that a female grown-up by two men will lack female influence in her lifetime but again, what matters is the upbringing, not the gender or sexuality of parents. In fact, children growing up in such an environment are more likely to understand the people who proudly accept their sexuality but still feel suppressed due to the unwanted orthodox of society.
What needs to be done?
Homophobia is one of the biggest diseases the world is dealing with, and it needs to be treated deep-rooted. It should be corrected wherever encountered. Legalising gay adoption will help not only to encounter homophobia but also give gay people equal rights to enjoy as a straight couple.
In its judgment on 25th February 2021, Delhi High Court stated that ‘petitioners cannot seek a fundamental right for same-sex marriage to be recognised as a wedding is a bond between man and woman’, which is tremendously horrific on its own. Adoption is another battle for equality that needs to be fought.
Adoption rights for the LGBTQIA+ community need to be discussed because it is the need of the hour and a step toward establishing an equal platform for homosexual couples. Government should encourage more awareness programs to obliterate the myths and social stigma about the parenthood of homosexual couples. It’s high time to realise the need to lay the foundation of equal rights and treatment for homosexual couples that will run parallel to heterosexual couples.
We should celebrate gay adoption as a choice and conceive the notion of LGBTQIA+ couples as responsible parents, which will actually aid in decreasing homophobia as well. Giving adoption rights to the LGBTQIA+ community will prove to be a major step in providing home and family to abandoned children and developing a sense of equality among homosexual couples. The adoption rights will give them equal privilege as any heterosexual couple to enjoy parenthood. The idea of a family with a father and mother is quaint; we should embrace the idea of two fathers or two mothers as well.
Arushi Dogra was born in 2001 in Delhi, having native roots in Himachal Pradesh, India. She did her schooling in Delhi and is currently pursuing her graduation in Life Sciences from Deshbandhu College, Delhi University. She is working as a student member of the Internal Complaints Committee of Deshbandhu College, formed under the Sexual Harassment of Women at Workplace, Prevention, Prohibition and Redressal Act, 2013. She is quite inquisitive and analytical about societal matters, which makes her valiant about writing and reading. She believes in spreading awareness through her writings which are the result of her observations. Arushi can be found on Twitter.
Featured image source: KTOO