Adoption is a legal process that establishes a permanent parent-child relationship between individuals who are not biologically related. It is a way for children who cannot be raised by their biological parents to become part of a loving and stable family. Adoption is a critical need for many children in India who are either orphaned, abandoned, or given up by their biological parents due to various reasons such as poverty, illness, or other hardships.[1]

Adoption provides a chance for such children to receive love, care, and a permanent home. It is essential to ensure that all children have access to a stable and nurturing family environment. Adoption helps to ensure that children in need of care and protection are provided with a secure home, emotional support, and opportunities to develop their full potential.

In India, the legal framework for adoption is primarily governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Guidelines Governing Adoption of Children, 2015. The legal framework aims to safeguard the best interests of the child and ensure that the adoption process is fair, transparent, and efficient.

For example, in the case of L.K. Pandey vs Union of India (1984) [2], the Supreme Court of India held that the best interests of the child are of paramount importance in adoption cases. The court emphasized that the adoption process must be guided by the welfare of the child, and it should not be used as a means to gratify the wishes of the adoptive parents.

Additionally, the legal framework requires that adoption agencies conduct home studies and counseling to ensure that prospective adoptive parents are suitable and capable of providing a stable and nurturing environment for the child. This process helps to protect the child's interests and ensures that the adoptive family can meet the child's physical, emotional, and psychological needs.[3]

However, the current legal framework in India does not explicitly permit or prohibit homosexuals from adopting children. This issue has raised concerns and sparked debates among legal scholars, activists, and policymakers regarding the suitability of homosexual couples as adoptive parents.

Adoption is a crucial legal and social institution that provides a loving and stable home to children in need of care and protection. While the legal framework in India has made significant progress in safeguarding the best interests of the child, the question of whether homosexuals can adopt remains a contentious issue that requires further discussion and deliberation that we will try to understand further in this blog.

The Current Legal Status Of Adoption By Homosexuals In India

The legal framework for adoption in India is regulated by the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Guidelines Governing Adoption of Children, 2015. The Act aims to ensure that every child in need of care and protection is provided with a safe, stable, and nurturing environment, while the guidelines provide a comprehensive framework for the adoption process. However, the current legal framework in India does not explicitly permit or prohibit homosexual couples from adopting children.

The Guidelines Governing Adoption of Children, 2015, state that the eligibility of prospective adoptive parents is determined based on their ability, suitability, and willingness to adopt, and the best interests of the child. The guidelines do not mention sexual orientation as a factor in determining the suitability of prospective adoptive parents. However, there is no clear provision in the guidelines that allows or prohibits homosexual couples from adopting children.[4]

Currently, same-sex couples are not allowed to adopt children in India. The adoption laws in India only recognize heterosexual couples as eligible for adoption. The adoption process is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, which defines "couple" as a "married man and woman" who have been living together for at least two years.

However, the Supreme Court of India has acknowledged the rights of LGBTQ+ individuals and has recognized that they are entitled to equal protection under the law. In a landmark judgment in 2018, the court ruled that the right to sexual orientation is an integral part of the right to privacy and dignity guaranteed by the Indian Constitution. This ruling paved the way for the decriminalization of homosexuality in India.

In practice, the lack of a clear legal framework for homosexual adoption has resulted in significant challenges for homosexual couples seeking to adopt children in India. Adoption agencies and officials may discriminate against homosexual couples during the adoption process, citing a lack of legal provisions that allow them to consider homosexual couples for adoption.[5]

In 2016, a homosexual couple, in the case of Shivy and Aditya vs The State[6], approached the Bombay High Court to adopt a child. The couple had been in a committed relationship for many years and wished to adopt a child, but their application was rejected by the adoption agency. The couple argued that there was no legal bar on homosexual adoption in India and that they should be allowed to adopt. The Bombay High Court ruled in their favor and held that the adoption agency's decision was discriminatory and arbitrary.

However, this case did not set a binding precedent, and the legal status of homosexual adoption remains ambiguous. Despite the ruling in Shivy case, adoption agencies and officials continue to exercise their discretion to reject homosexual couples' applications. This has resulted in significant challenges for homosexual couples seeking to adopt children in India.

In 2009, the Delhi High Court issued a landmark ruling allowing same-sex couples to adopt children in India.[7] However, the decision was later overturned by the Supreme Court, which upheld the legality of Section 377 of the Indian Penal Code, which criminalizes homosexuality.[8]

In 2017, the Ministry of Women and Child Development released draft guidelines for adoption that did not explicitly prohibit same-sex couples from adopting[9]. However, the final guidelines released in 2018 only recognized heterosexual couples as eligible to adopt.[10]

Despite the legal challenges, there have been several instances of same-sex couples successfully adopting children in India. For example, in 2019, a gay couple from Spain was granted permission to adopt a child from India after a two-year legal battle.[11]

The current legal status of adoption by homosexual couples in India is uncertain. Although the legal framework does not explicitly prohibit homosexual adoption, the lack of a clear legal framework allows adoption agencies and officials to discriminate against homosexual couples during the adoption process. There is a need for a clear legal framework that provides equal opportunities and rights to all prospective adoptive parents, regardless of their sexual orientation.

How Can A Homosexual Couple Adopt In India?

Adoption by a homosexual (couple) in India follows the same legal process as for a heterosexual couple. The couple needs to be registered as prospective adoptive parents with a recognized adoption agency. The adoption agency will conduct a home study and assess the suitability of the couple for adoption.

The adoption process in India is regulated by the Juvenile Justice (Care and Protection of Children) Act, 2015[12]. The Act provides for the constitution of a Central Adoption Resource Authority (CARA)[13] that is responsible for the regulation and monitoring of adoption procedures in India.

Single individuals, including those who identify as LGBTQ+, are eligible to adopt children in India regardless of their sexual orientation. The adoption laws in India do not specifically prohibit single LGBTQ+ individuals from adopting.

However, the adoption process in India is complex, and there are certain eligibility criteria that must be met. Individuals who wish to adopt must be over the age of 25 and under the age of 50, and they must be physically, mentally, and emotionally stable. They must also be financially stable and able to provide a stable and loving home for the child.

The adoption process in India is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, and is overseen by the Central Adoption Resource Authority (CARA). The process involves several steps, including an application, a home study, and a court hearing.

To adopt a child in India, a homosexual couple must follow the same process as heterosexual couples. This involves the following steps[14]:

Register with an Adoption Agency:
The first step in the adoption process is to register with an authorized adoption agency in India. This agency will guide the couple through the adoption process and provide counseling and support throughout the process.

Home Study:
The adoption agency will conduct a home study of the couple to assess their suitability as adoptive parents. The home study will involve interviews with the couple, background checks, and home visits.

Child Referral:
Once the adoption agency has determined that the couple is suitable to adopt, they will be referred to a child who is legally free for adoption.

Court Process:
The couple will then need to file a petition in the court for the adoption of the child. The court will conduct a hearing to determine if the adoption is in the best interests of the child.[15][16]

Post-Adoption Follow-Up:
After the adoption is granted, the adoption agency will conduct follow-up visits to ensure the child's well-being.[17]

It is essential to note that:
"the law in India does not discriminate against prospective adoptive parents on the basis of their sexual orientation"[18]. However, social stigma and discrimination can be a challenge for homosexual couples looking to adopt.

Homosexual couples can adopt in India by following the standard adoption process and being registered as prospective adoptive parents with a recognized adoption agency. Overall, the process of adoption in India for homosexual couples can be challenging due to societal attitudes towards homosexuality. However, it is possible for same-sex couples to adopt in India.

The Way Around
As of now, the adoption laws in India only allow married couples to adopt a child, regardless of their sexual orientation. This means that single individuals, including single homosexuals, are not permitted to adopt a child in India.

However, some homosexual individuals have found a way around this restriction by adopting as a single parent, as single individuals are legally permitted to adopt a child in India. For instance, in 2016, a homosexual man in Mumbai adopted a child as a single parent, becoming one of the first single homosexual men to legally adopt a child in India.[19]

In such cases, the individual may have to undergo the same screening process and fulfill the same requirements as any other single parent, such as having a stable income and providing a safe and healthy home for the child. Additionally, as a single parent, they may face additional challenges in terms of raising the child alone.

It is worth noting that while single parent adoption may be a way around the current restrictions on homosexual adoption in India, it is not a solution to the larger issue of discrimination against homosexual couples seeking to adopt a child. It is important for adoption laws in India to be updated to be inclusive of all individuals and couples, regardless of their sexual orientation.

Pros And Cons Of Homosexual Adoption

Adoption by homosexual couples has been a topic of debate globally. While some people argue that it provides loving homes for children in need, others argue that it is not in the best interest of the child. In the Indian context, there are several advantages and disadvantages of homosexual adoption.

Advantages of Homosexual Adoption in India: [20]
Providing Loving Homes for Children in Need:
Homosexual couples can provide loving and stable homes for children in need of care and protection. They can offer a supportive environment and provide the necessary care, education, and guidance to the child.

Tackling the Problem of Orphaned Children:
Homosexual adoption can help in tackling the problem of orphaned children in India. According to a UNICEF report, India has over 20 million orphaned and abandoned children. Homosexual couples can provide homes to these children who would otherwise have been left without families.

Gender Equality:
Homosexual adoption promotes gender equality and eliminates discrimination on the basis of sexual orientation. It recognizes that homosexual couples can provide the same love and care as heterosexual couples and have the right to form a family.
Disadvantages of Homosexual Adoption in India:[21]

Social Stigma:
Homosexual adoption in India is still a taboo subject. Many people believe that children raised by homosexual couples will be subjected to social stigma and discrimination, which may negatively impact the child's mental and emotional well-being.

Potential Discrimination against the Child:
Some people argue that children raised by homosexual couples may face discrimination and bullying from their peers, which could impact their self-esteem and self-worth.

Lack of a Clear Legal Framework:
The lack of a clear legal framework for homosexual adoption in India may result in adoption agencies and officials exercising their discretion to reject applications from homosexual couples.

Comparison of Homosexual Adoption with Traditional Adoption by Heterosexual Couples:[22]
Loving Homes:
Both homosexual and heterosexual couples can provide loving and supportive homes for children in need.

Social Stigma:
Children raised by heterosexual couples may also face social stigma and discrimination, particularly if they come from different castes or communities.
Legal Framework: Traditional adoption by heterosexual couples has a clear legal framework, while homosexual adoption lacks a clear legal framework.

While there are advantages and disadvantages of homosexual adoption in India, it is essential to ensure that the best interests of the child are protected.

A clear legal framework that provides equal opportunities and rights to all prospective adoptive parents, regardless of their sexual orientation, is necessary. Homosexual couples should be given the opportunity to provide loving homes to children in need of care and protection, and the government should take steps to raise awareness about homosexual adoption and eliminate social stigma and discrimination against children raised by homosexual couples.

Global Perspectives On Homosexual Adoption

Homosexual adoption is a controversial issue not only in India but also in many other countries around the world. Let us take a look at the comparison of Indian adoption laws with those of other countries, the analysis of different countries' stance towards homosexual adoption, and the legal and social consequences of allowing or prohibiting homosexual adoption in different countries.

The Indian legal framework for adoption by homosexual couples is still in a nascent stage, and the Supreme Court's decision in the 2020 case of Navtej Singh Johar and Others v. Union of India[23] has given hope to the LGBTQ community in India. However, many other countries have already allowed homosexual couples to adopt children.

For example, in 2001, the Netherlands became the first country in the world to legalize same-sex marriage, including the right to adopt[24]. Other countries such as Spain, Belgium, Canada, and the United Kingdom have also legalized same-sex adoption.[25]

Many countries have different approaches to homosexual adoption. Some countries, such as Israel and the Netherlands, have adopted a liberal approach and allow homosexual couples to adopt without discrimination[26]. In contrast, other countries such as Russia and China have a strict policy against it.[27]

In some countries, such as the United States, the laws regarding homosexual adoption differ from state to state. While some states allow it, others do not, leading to a complicated legal landscape[28].

Allowing homosexual adoption has been shown to have positive effects on children and families, such as giving children in need of homes access to a wider pool of potential parents and providing stability and support to same-sex couples seeking to start a family. In contrast, prohibiting homosexual adoption may limit the number of potential parents for children in need of homes and could prevent same-sex couples from experiencing the benefits of parenthood.

Moreover, prohibiting homosexual adoption may perpetuate social stigma and discrimination against the LGBTQ+ community. This could lead to negative effects on mental health and well-being, such as depression, anxiety, and a sense of exclusion and isolation. Allowing same-sex couples to adopt can help to reduce stigma and promote acceptance and inclusion of the LGBTQ+ community.

For instance, a study conducted in the United States found that children raised by homosexual parents do not differ significantly from those raised by heterosexual parents in terms of social and emotional development, academic performance, and mental health. However, in countries where homosexual adoption is illegal, it can lead to discrimination and prejudice against both the child and the adoptive parents[29].

Overall homosexual adoption is a complex issue with legal and social implications. While many countries have already allowed homosexual couples to adopt, others still have a long way to go. As society continues to evolve and attitudes towards homosexuality change, it is essential to consider the well-being of children in need of loving homes, regardless of the sexual orientation of their prospective parents.

Conclusion
In conclusion, the issue of homosexual adoption in India is complex, with various legal, social, and cultural factors at play. The current legal framework for adoption in India does not explicitly prohibit homosexual couples from adopting, but there are no provisions that explicitly allow it either. As a result, the practice is often met with social stigma and discrimination.

Despite this, there are many advantages to homosexual adoption in India, including providing loving homes for children in need. However, there are also some disadvantages, such as potential discrimination against the child. Compared to traditional adoption by heterosexual couples, there are both benefits and drawbacks to homosexual adoption. Many countries around the world have different stances on this issue, with some allowing it and others prohibiting it.

Personal stories of homosexual couples who have successfully adopted in India demonstrate the positive impact that adoption has had on the lives of both the adoptive parents and children. In order to improve the adoption process for homosexual couples in India, there needs to be clearer legal guidelines and improved societal acceptance. It is important for the government and society to recognize that homosexual couples are capable of providing loving homes for children just as heterosexual couples are.

The legal framework for adoption by homosexual couples in India has been established, and the law does not discriminate against prospective adoptive parents on the basis of their sexual orientation. However, social stigma and discrimination can still present challenges for homosexual couples looking to adopt.

While research shows that children raised by same-sex couples do not differ significantly from those raised by opposite-sex couples, attitudes towards homosexuality can still lead to discrimination and prejudice against both the child and the adoptive parents. Despite these challenges, many homosexual couples in India and around the world have successfully adopted and provided loving homes for children.

The Way Forward
In recent years, there has been growing momentum towards greater acceptance of homosexuality in India. This has led to increased advocacy for the rights of homosexual couples to adopt children. Here are some potential future scenarios for homosexual adoption in India, recommendations for improving adoption laws, and potential implications of a change in adoption laws for homosexuals in India:

Possible Future Scenarios for Homosexual Adoption in India

• The Indian government could amend the current adoption laws to allow homosexual couples to adopt children legally.
• Courts could interpret the existing adoption laws in a manner that allows homosexual couples to adopt children, as has been done in some countries like the United States.
• Homosexual couples could continue to adopt children through informal and unofficial means, such as by becoming foster parents or using surrogacy.

Recommendations for Improving Adoption Laws in India

• The Indian government should amend the adoption laws to explicitly allow homosexual couples to adopt children. This would help to reduce the legal uncertainties and challenges faced by homosexual couples who wish to adopt.
• Adoption agencies in India should be trained to be more open-minded and inclusive towards homosexual couples who want to adopt children.
• Social attitudes towards homosexuality in India need to change so that homosexual couples and their families are treated with respect and dignity.

Potential Implications of a Change in Adoption Laws for Homosexuals in India

• Changing adoption laws to allow homosexual couples to adopt children would provide more loving homes for the large number of orphaned and abandoned children in India who are in need of permanent families.
• It would help to reduce the stigma and discrimination faced by homosexual couples in India and promote greater social acceptance of homosexuality.
• However, changing adoption laws may also face resistance from those who oppose homosexuality on religious or cultural grounds, and may lead to legal challenges in the courts.

There is a need for greater advocacy for the rights of homosexual couples to adopt in India. It is important for the Indian government to amend the adoption laws to allow homosexual couples to adopt legally, as this would promote greater social acceptance of homosexuality and provide more loving homes for the large number of orphaned and abandoned children in India. However, changing adoption laws is likely to be a long and difficult process, and will require sustained efforts by advocates and activists.

References:

1. Central Adoption Resource Authorityministry of Women & Child Developmentgovernment of India (CARA) <https://cara.nic.in/> accessed February 17, 2023
2. 1987 AIR 232, 1987 SCR (1) 383
3. Preparing Adoptive Parents - Child Welfare accessed February 17, 2023
4. Convention on the Rights of the Child (OHCHR) accessed February 17, 2023
5. Parliament Panel Recommendation on Adoption Raises Bigger Question of Recognising Same-Sex Union: Experts (The Economic Times) accessed February 17, 2023
6. Shivy Sachdeva & Anr. v. The State of Maharashtra & Ors., Writ Petition No. 12144 of 2016 (Bombay High Court, 2019)
7. Naz Foundation v. Govt. of NCT of Delhi (160 Delhi Law Times 277)
8. Suresh Kumar Koushal & Another v. Naz Foundation & Others (SLP (C) No. 15436 of 2009)
9. 102 The Gazette of India : Extraordinary [Part II-Sec. 3(I)] (Ministry Of Women And Child Development) accessed February 17, 2023
10. Supra; See 9
11. Sandro Gomez and Javiar Serrano v. CARA & Anr., Civil Application No. 1013 of 2019 (High Court of Bombay, 2019)
12. Juvenile Justice (Care and Protection of Children) Act, 2015
13. Section 68, Juvenile Justice (Care and Protection of Children) Act, 2015
14. The Juvenile Justice (Care and Protection of Children) Act, 2015 does not specifically mention the requirement to these steps except the 4th and 5th step i.e., court process & Post-Adoption Follow-Up of the adoption process. However, the Guidelines Governing Adoption of Children, 2017 issued by the Ministry of Women and Child Development provides for these steps to be complied with the Central Adoption Resource Authority (CARA), which is the nodal agency responsible for regulating and monitoring adoption procedures in India.
15. Section 61 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
16. Section 62 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
17. Section 63 of the Juvenile Justice (Care and Protection of Children) Act, 2015
18. Tara Narula, advocate and legal fellow at HAQ
19. Ravindra Nath Mishra vs State of Maharashtra and Another, Writ Petition No. 1350 of 2015, Bombay High Court, 2 March 2016.
20. Manning WD, Fettro MN, Lamidi E. Child Well-Being in Same-Sex Parent Families: Review of Research Prepared for American Sociological Association Amicus Brief. Popul Res Policy Rev. 2014 Aug 1;33(4):485-502. doi: 10.1007/s11113-014-9329-6. PMID: 25018575; PMCID: PMC4091994.
21. Schumm, Walter. (2016). A Review and Critique of Research on Same-Sex Parenting and Adoption. Psychological Reports. 119. 10.1177/0033294116665594.
22. Is There a Difference in Term of Law between Same-Sex and Heterosexual Adoption Cases? (Clagett Barnett) accessed February 18, 2023
23. Navtej Singh Johar and Others v. Union of India, (2018) 10 SCC 1
24. Noack, R. (2015, June 26). What was the first country to legalize gay marriage? The Washington Post. https://www.washingtonpost.com/news/worldviews/wp/2015/06/26/what-was-the-first-country-to-legalize-gay-marriage/
25. Pew Research Center. (2021). Gay Marriage Around the World. https://www.pewresearch.org/fact-tank/2021/06/28/gay-marriage-around-the-world/
26. Cohen, Raoul Wootliff. Ministers Approve Draft of Bill to Enable Adoption by Same-sex Couples. Times of Israel, 6 February 2022, https://www.timesofisrael.com/ministers-approve-draft-of-bill-to-enable-adoption-by-same-sex-couples/
27. Hui Feng, 'How China is legally recognising same-sex couples, but not empowering them' (2019) The Conversation https://theconversation.com/how-china-is-legally-recognising-same-sex-couples-but-not-empowering-them-122270 accessed 18 February 2023.
28. LifeLong Adoptions. LGBT Adoption Laws: A Breakdown. LifeLong Adoptions, www.lifelongadoptions.com/13-lgbt-adoption/287-lgbt-adoption-laws-a-breakdown.
29. Biblarz, T. J., & Stacey, J. (2010). How does the gender of parents matter?. Journal of Marriage and Family, 72(1), 3-22. https://doi.org/10.1111/j.1741-3737.2009.00678.x