LEGAL STATUS OF ADOPTION BY SAME SEX COUPLES IN INDIA ANDAROUND THE WORLD: A CRITICAL ANALYSIS by - Shraddha Vemula
Adoption is the legal establishment of a parent-child relationship. In India, it happens through the procedure outlined in Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 20152wherein children who are in need of a family would become the child of a married couple or a single parent. Adoption culture in our country is influenced by various social notions and the lack of care, respect, equal treatment and regard for orphaned and abandoned children who are to be adopted. Moving on to the other aspect, same sex marriage is an institution that binds two men or women together. There have only recently been several instances of homosexual marriages being accepted, and culture is gradually becoming indulgent. This reform is reflected in the case of Navtej Singh V. Union of India3, in which the Supreme Court struck down Section 377 of the IPC4.People who oppose same-sex adoption argue that LGBT parenting has a negative impact on children. Nevertheless, research has consistently demonstrated that same-sex couples as parents are as equally eligible and proficient as their heterosexual counter parts. Research also shows that such adopted kids are mentally fit and normal when compared with kids that have grown up with heterosexual parents. The Supreme Court dismissed a review petition in 2019 seeking to allow people of the LGBTQ+ community to marry, adopt. In this case, the court was of the opinion that cases that involve sensitive relationships like marriage, divorce, adoption, maintenance, etc. either the existing law or family law occupies the field, implying that laws
in such fields must be consistent with societal values and national acceptability, which is a arguable issue when it comes to homosexuality. The Apex Court’s decision grants to homosexual couples, the freedom to live a respectable life with privacy but limits that to the basic right to companionship and not marriage, provided that such a relationship is consensual, free of deceit, or any kind of compulsion and is not in contravention of fundamental rights of any of the partners.
Same-sex couples are entitled to adopt together in twenty-seven countries around the world and numerous sub – national territories and dependent territories. Additionally, for homosexual couples in five other countries, any form of stepchild adoption is legal. Since constitutions and statutes rarely discuss the rights of LGBT people, court pronouncements frequently decide if they should be permitted to adopt as individual parents or together as a partnership. Most countries which allow marriage of same-sex couples also enable them to adopt together. Talking about India, the decriminalisation of Section 377 in 2018 was majorly praised as it was considered as a major win and advancement for improving the section’s position in our society. It was also held that personal laws and codified statutory laws do not recognize the idea of marriage among both two people of the same gender. However, decriminalization of Section 377 of the IPC doesn’t really imply that same-sex couples have a fundamental right to marry.Though it’s been four years since the judgement has been passed, they continue to struggle for the basic rights of marriage and adoption. Though law permits adoption by the people as single parents in the community, it prohibits adoption by same-sex couples together. In a case, if either of the two homosexual partners adopts any child as a single parent, his/her partner is prohibited from exercising their rights over the child. Legislation, such as the Juvenile Justice Act of 2000, has undergone amendments to incorporate the concept of secularity, allowing adoptions regardless of the child’s and parents’ communal and religious beliefs. However, the legislation fell short of achieving equality for adopted and biological children. This shortfall of legislation was covered by the Juvenile Justice (Care and Protection of Children Act) of 2006. It declared that adopted children should be treated as the parents’ biological child, with providing all rights, privileges, and relationships that entail. Following are the laws that govern adoption in the country:
- THE CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)5: It a lawful authority that reports to the Ministry of Women and Child Development. Being the primary organisation for all kinds of children adoption practices, it supervises along with governing both domestic & global adoptions. CARA is labelled as the highest authority to handle cross- adoptions following the terms of the Hague Convention on Inter-country Adoption established in 1993, which was ratified by the parliament in Via its affiliated / recognised adoption branches, CARA majorly deals with the adoption of orphaned and deserted children.
- HINDU ADOPTIONS AND MAINTENANCE ACT, 19566: It regulates the judicial procedure for Hindu grown-ups to adopt children along with their lawful obligation to support various family members. As an exception, under Sections 7 and 8(c) of theact, such authorization is not required in cases where the partner is mentally unstable, has relinquished mankind, or has abandoned their children. Similarly, this rule allows single men and women who with a sane mind and who are adults as per the law to adopt a child.
- ADOPTION REGULATION, 20177: The 2017 Adoption Regulations are far stricter than the Hindu Adoption and maintenance Act. Single women and men are qualified to adopt only if they are mentally, psychologically, and economically stable and do not suffer from any illness that is life-threatening. Another restriction is that the law does not allow a single male to adopt a female unless there is an age gap of at least twenty years between them, as permitted in Section 11(3) of the Hindu Adoption and Maintenance Act, 1956. However, the laws do allow a single female to adopt a male child without any
ADOPTION BY SAME SEX COUPLES IN INDIA
In India, marriages between same-sex couples are not recognised and thus such couples are not entitled to jointly adopt children. The Indian laws do so, demonstrating that they still are not yet treated equally by the law. Another reason is that same-sex couples cannot adopt
because the child must not be raised in an inferior family. However, the above stated laws violate article 14, 15 and 21of the constitution. Article 14 of the constitution provides for equality before law, and since the government officially recognises a third gender apart from male and female, they should be treated equally according to the law and should be allowed to adopt. Article 15 criminalizes discrimination on any basis, including gender-based discrimination but the question arises that why aren’t same homosexual couplesallowed to adopt when men and women are permitted the same. It is pertinent to note that the social stigma that revolves around the community further discourages the authorities to give children for adoption to same-sex couples. Another point of debate is that since same-sex couples cannot conceive naturally, they have no option but to adopt. Every individual has the right to family and since LGBTQ+ is officially recognized, homosexual partners should be permitted to marry and adopt children and grow into a family like any other couple. Since Indian law mandates marriage and the consent of both the spouses to adopt a child, same sex are simply prohibited to adopt a child under the current laws. Simply put, according to government estimates, India is home to 2,500,000 LGBTQIA+ people. Despite the community’s size and strength, it’s always been a target of prejudice, discrimination and harassment. In India, LGBTQ+ people can adopt, but same-sex couples cannot. If you are a same-sex couple, one spouse may adopt and raise a child separately, but the other spouse cannot be a parent of that child according to the prevalent Indian laws. As per a study conducted by a global charity for orphaned and vulnerable kids, our nation is home to twenty million orphaned kids, a figure which might increase to 24 million in the next two years. The main issue here is that no un-codified law or codified formal law recognizes or accepts same- sex marriage and marriage, despite constitutional authorization of the partnership between a biological female and a biological male, is inevitably based on age-old belief systems, ritual practices, activities, ethnic ethos, and social norms8.
LEGISLATIONS OF ADOPTION BY SAME SEX COUPLES AROUND THE WORLD
- THE UNITED STATES9: Individual liberty has long been regarded as a constitutional value in the United States. However, under the American Constitution, homosexual couples did not have to privilege to enjoy several rights. The judicial system actively participated in eradicating discrimination against same-sex couples as a result of social rejection and legislative inaction. The Michigan State Law prohibits same-sex marriage ceremonies and combined adoption. This was declared as against the constitutional provisions by the Circuit Court of appeals for the Sixth Circuit in the case of De Boer v Snyder (2014). In the well- known particular instance of Obergefel v Hodges (2015), the Supreme Court proclaimed discrimination of LGBTQ+ people violates the spirit of the US charter and held that the right to freedom is applicable for everyone in the society. These court decisions made same-sex adoption lawful in all fifty states. As of 2021, each state has the authority to enact its own laws regarding LGBTQ discriminatory practices in foster families, second-parent adoption, and parenting practices in same-sex relationships. Numerous states continue to expressly allow discrimination in the foster care and adoption placement systems, or have no laws in place to prevent Many states do not require foster parents to receive LGBTQ youth training. Many states also prohibit same-sex couples from adopting second parents, irrespective of whether their partnership is legally recognized. Some states do not presume a familial connection exists with any kids born of a same-sex marriage for both parents, as they would for kids born of a heterosexual marriage.
- SOUTH AFRICA10: Amidst socio cultural bias, the African nation is one among the few countries to recognize the rights of homosexual couples. In the case of Ministers of Home Affairs vs. Fourie (2005), the South African Constitutional Court struck down the prejudicial presumptions prevailing back then and held that marriage of individuals of the same sex to be The Court’s disapproval of the inhuman living standards for LGBTQ+ urged the law- makers to enact the Civil Union Act of 2006. The legislation made legal same-sex weddings in the nation. However, this act of the legislative and judiciary eventually resulted in discrimination claims against married as well as single people that did not allow same-sexcouples to adopt as single parents. In the case of Du Tuit and Others v Minister of Welfare and Population Development and Others (2002), it was ruled that the Child Care Act, 1983 opposed the concept of a child’s top interests and society’s values. Also, the need to amend the discrimination Act was recognized to ascertain equality for everyone from the community. The Children’s Act of 2005, that allows adoption by partners and “partners in a lasting family life” irrespective of sexuality, has since replaced the adoption law. The Labor Laws Amendment Act, 2018, presented as an individual member’s bill by African Christian Democratic Party MP Cheryllyn Dudley, and was passed by the National Assembly in November 2017. President Cyril Ramaphosa signed it into law in late 2018. Same-sex spouses, and also adoptive parents and surrogate women, are permitted parental leave, and men are entitled a paternity leave of minimum of ten days of whenever he becomes a father, either through birth of hi child or through adoption. Further, parents who have adopted children under the age of two are also allowed to take a leave of up to two and a half months. In cases where the adoption is done by a couple, one is authorized to adoption leave while another is authorized ten days of parental leave. In a surrogate motherhood agreement, same allowance is made for commissioning parents. The law took effect on January 1, 2019.
- UNITED KINGDOM11: Initially, legislation in the United Kingdom did not treat homo sexual couples as equals since it limited rights of only to couples who are married and individuals who wish to adopt as single parents. Nonetheless, the Adoption and Children Act of 2002 made it possible for unwedded homosexual couples to become parents by adopting The UK administration enacted legislations making sexual orientation discrimination illegal, which resulted in the passage of the Equality Act in 2010. Adoption supporters in Parliament emphasized that the move was not about “gay rights,” but about offering a stable and loving home to as many children as possible rather than leaving them without a family. Groups who opposed the move questioned the consistency of the alliance outside of the marriage and the possibility of this impacting the wellbeing of children.
- AUSTRALIA12: In Australia, child law is frequently dependent on what is deemed to be in the benefit of the child. As of April 2018, all Australian states and territories allow same-sex couples to adopt. South Australia introduced legislation to the South Australian Parliament in September 2016 that permitted homosexual couples to adopt children, and it passed the Parliament in December 2016. A week later, the received assent and went into effect in February 2017. Since the passage of the law in November 2016, same-sex couples in Queensland have been legally permitted to When Western Australia’s legislature introduced the Lesbian and Gay Law Reform (Amendment) Act 2002, which amended the Adoption Act 1994, to become the first Australian state that allows same-sex adoptions. The law in turn enabled homosexual couples to adopt, provided that it confirms to the appropriateness of partners and individuals, irrespective of sexuality, to be parents. As of June 2007, two men made Australia’s first lawful gay adoption in Western Australia.
- CHINA13: LGBTQ+ people of China confront social and legal challenges that non- LGBT residents do not. Same-sex couples are still not allowed to marry or adopt, and their households are disqualified for the same protections as heterosexual couples. China does not protect LGBT people against discrimination, neither it criminalizes offences relying on gender identity. The government’s stance on LGBT rights can be described as erratic, with no approval, no disapproval, and no promotion. Authorities are strongly opposed, as several LGBT incidents have been prohibited in recent years. In recent years, China has prohibited the display of homosexual relationships on television, as well as the display of effeminate men in The Chinese government mandates heterosexual marriages for parents adopting a child from China. Chinese authorities prohibit international same-sex couples and homosexual people from adopting Chinese children.
- PAKISTAN14: In Pakistan, LGBTQ+ people are not granted equal legal rights and encounter social and cultural difficulties as compared to people who do not belong to the Gays and lesbians are required to be highly private about their sexuality and the same persists even in major cities. Such sexual acts are actionable under Pakistani laws. In the guise of protecting moral codes, the Pakistan Penal Code of 1860, originally created during colonial periods, penalizes sodomy with a potential jail term and contains a few more regulations that affect the civil dignity of LGBT Pakistanis. Sexual relationships between the same-sex partners are becoming more common in Lahore, particularly among gay and bisexual men. Special gay gatherings in Lahore are on rise lately, due to globalization, growing liberalization tendency, and better social liberality. Furthermore, an increasing number of people are coming out to their friends, particularly they whose parents were educated in the civilized countries and have some understanding of evolution of sexuality.
- SOUTH KOREA15: In South Korea, neither the Constitution nor the Civil Penal Code specifically mentions homosexuality. The National Human Rights Commission Act contains in Article 31 – “no individual shall be discrimination on the grounds of his or her sexual ” LGBT community is barred from serving in the defense forces, despite the fact that the Highest Court recently decriminalized sodomy in the military. While same-sex sexual activity between men and women is legal in South Korea, same-sex partners cannot marry or enter into other types of legal partnership. In 2014, the government supported a United Nations settlement that called for combating LGBT discrimination around the world. Hence, same sex couples in South Korea are prohibited to adopt children.
- AFGHANISTAN16: LGBT people are forced to conceal their sexual orientation and sexual orientation for fear of repercussions, harassment, persecution, and death.  The religious environment of a country has restricted any opportunities for greater debate, withany reference of homosexuality or related terms considered taboo. Hence, same-sex marriages and adoption of children are not possible.
- NORTH KOREA17: In North Korea, LGBTQ+ rights are still undefined. According to the Korea Times, the country hanged a lesbian couple simply for being inspired by individualism and corrupting societal ethics. Article 193 prohibits the formation, issuance, or custody of decadent culture, whereas Article 194 prohibits both sexually definite media and decadent behavior. According to the Voice of America’s Korean Service, open talk of homosexuality is not allowed in the
- EUROPIAN UNION18: The ban of discriminatory practices and the respect for human rights are critical components of the legal order of the European Nonetheless, stereotyping against LGBTI people continues in there, taking various forms such as verbal abuse and physical violence. The European Parliament has raised the issue of LGBTI privileges on numerous occasions, beginning with the adaptation of a resolution on homosexual rights as early as 1984. Legal recognition of LGBT adoption varies by country in Europe. Out of all the European nations and all the relying nations, only in 23 countries allow legal adoption. Austria, Portugal, Finland, Germany, Iceland, Denmark, Malta, the Netherlands, Belgium, Luxembourg, Andorra, Norway, Spain, Croatia, Sweden, Ireland, France, Switzerland, and the UK are the countries that allow complete joint adoption by homosexual couples. Greece permits same-sex couples to become foster parents but not adoptive parents. Joint adoption is legal in the following dependent territories: Guernsey, Ascension and Tristan da Cunha, Greenland, Falkland Islands, the Isle of Man, Cayman Islands, the Faroe Islands, Saint Helena, Gibraltar, and Jersey. Switzerland is the latest country to pass a bill that legalized same sex marriages along with adoption, on July 1st 2022. However, a majority of the people are against adoption by same sex couples in Austria, Bulgaria, Cyprus, Estonia, Greece, Latvia, Luthuania, Malta, Poland, Portugal, Russia, Serbia, Slovakia, Solvenia, and Ukraine.
- Belgium19: Belgium is regarded as among the most liberal countries in terms of LGBT In 2003, it became the world’s second country to decriminalize same-sex marriages, and it allowed same-sex adoption in 2006. Amidst those very legal provisions, many obstacles remain. The rate of same adoptions is low even eleven years after the legislation granting same-sex couples the privilege to adopt was passed.
- France21: Legality of homosexuality is a relatively new decision in The parliament passed a law in 2013 to pass the Taubira Bill, legalizing same-sex marriage and adoption. The introduction of this ordinance sparked heated debate in the public sphere. According to Girard (2013), between 340 thousand and 1 million French demonstrators took to the streets to protest against the law and “defend traditional family values.” In fact, prior topassage of the Taubira Bill, same-sex couples circumvented the legal barriers by pursuing international adoption as single parents.
Spain20: Spain was the first nation in all over the world to grant complete impartiality in marital laws regardless of sexuality. In Spain, homosexual marriages and adoptions are legal in 2005. There are no formal official statistics of same-sex adopted children in Spain as of
Denmark22: As for Denmark, homosexual activities were legalized in 1933, and the age at which people were eligible for sexual consent was fifteen, irrespective of gender since In 1989, Denmark became the first nation in the world to recognize same-sex unions as registered partnerships. The law was repealed on June 7, 2012, and a new marriage-regulating law was enacted on June 15, 2012. Denmark permitted same-sex couples to adopt together,whilst also enabling stepchild adoptions and narrow co-guardianship privileges for non- biological parents since 2010. Person’s belonging to the LGBT community are allowed to serve publicly in the armed services, thus making Denmark one of the world’s most socially progressive nations. The Country’s first LGBT Organization, was founded in 1948 as Circle of 1948. The Danish Parliament passed a law on June 2, 2006 and revoked a legislation that prohibited lesbian couples from trying to access synthetic insemination. A gay male couple has become the first gay couple to adopt an international child on July 20, 2014, by adopting a girl aged nine months from Africa. In 2013, 84 households had same-sex parents, according to Danish Broadcasting Corporation statistics. By mid-2018, the figure had risen to 659. The number increased from 42 to 293 in the Capital Region.
Switzerland23: In Switzerland, combined adoption was illegal for homosexual couples and it was only permitted for straight couples. The statutory ordinance legalized homosexual companionship and allowed wedded homosexual couples to adopt collectively along with permitting them to receive fertilization surgery beginning July 1, The Protestant Women of Switzerland declared its assistance for same-sex marriage and artificial insemination for lesbian couples in June 2019 and the legislation was met with positive responses. The Swiss Union of Catholic Women also voiced assistance and help for homosexual marriage and artificial insemination for lesbian couples in June 2019. In November 2019, the Protestant Church of Switzerland favored allowing same-sex couples to marry civilly. The Old Catholic Church in Switzerland was positive in conducting homosexual marriages in August 2020.
ANALYSIS AND CONCLUSION
The adoption of kids by same-sex couples should be made legal all over the world. Gender is something the people cannot be held responsible for, since they’re just born with that sexual orientation.All those who are assigned male or female at birth, find it very difficult to come out and reveal their originality to the world. Even if disclose this, they find it very difficult to find support from their loved ones, even if it their family sometimes. Reverend John Kuiper of the Metropolitan Community Church along with is partner became the first American gay couple to be granted permission for adoption in 1979. The adoption of kids by
LGBTQ+ individuals is a hotly debated topic. Before 1973, courts frequently prohibited gay and lesbian people from becoming parents, particularly via adoption. Manyaccomplished bodies have issued declarations supporting homosexual adoption. The American Psychological Association ihas backed the demand, stating social restrictions and stereotypes as harming lesbians and gays’ psychological health and mentionedthat there exists no proof that the parenting causes any psychological disorders in the children.
Adoption by LGBT families is supported by the following arguments:
- A child’s right to get a home and parents who can look after him or her and the right of parents to want a
- The children of same-sex and straight couples are not different on any
- As a result, the sexuality of the parents is almost irrelevant in the up-bringing up a
- Contrary to the arguments of those who oppose LGBT+ parent – child relationship, there is evidence that homosexual couples can also provide adequate living situations for raising
- Adoption is an improved option for children than
- There are lesser legalities for step-parents in daily
Adoption by LGBT families is refuted by the following arguments:
- Many adoption services are faith-based, and supporting LGBTQ+ parents may be against their
- They believe that a child requires both mother and a father, instead of just one or the other (non-binary) and also believe that one gender can educate their children things that other gender
- Some believe children brought up in same-sex parenting environment are more prone to developing sexual and gender
There exist many ideas about gender stereotypes like what a mom and dad should be doing in the house and how women should “domesticate” men
1Second Year law student at Symbiosis Law School, Hyderabad 2Juvenile Justice(Care and Protection of Children) Act 2015, s 2 3Navtej Singh v. Union of India (2018) AIR 2018 SC 4321
4Indian Penal Code 1872, s 377
5Wikipedia, the free Encyclopedia, ‘Central Adoption Resource authority’ (Wikipedia, 25January 2022)
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6Hindu Adoptions And Maintenance Act 1956
8Shohom Roy, ‘Adoption by same sex couples’, (blog.ipleaders, 7October 2021)
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