Parenthood and the LQBTQI+ Community: A Basic Human Right

RAINBOW CORNER

Ask any Indian as to what matters to them the most. And the most likely answer will be to have a family and start a family. But, how many queer couples do we find in parents- teacher meets, annual sports day at school, annual school function, having ice cream and shopping in the malls or eating in restaurants.

Our Indian society still has to come out of the stigma towards the queer couples. Although section 377 of India Penal Code decriminalized consensual sex between the queer couples, but the country is yet to give legal recognition to their marriages. In 2019, the Supreme Court of India rejected a review petition that sought to provide right to marriage, adoption and surrogation to the community. As such, adopting and raising a child is out of question for anyone from this community who wishes to start a family.

In India, adoption is governed by the Hindu Adoptions and Maintenance Act (HAMA), 1956 and the Juvenile Justice Act (JJ), 2015. According to Section 2(2) of the Juvenile Justice (Care and Protection) Act, 2015 "Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of the adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child."

The Hindu Adoptions and maintenance Act, 1956 further clarifies on the legal procedures of adoption. According to this act, people who practice Hinduism, Buddhism, Jainism, Sikhism or any religion governed by the Hindu law are eligible for adoption. Moreover, in this Act, the words "husband" and "wife" are used to describe the capacity for adoption, suggesting that the act does not recognize adoption by same-sex couples. Further, there is uncertainty about the application of such rules to third-gender couples because the potential for adoption is explained for both Hindu men and Hindu females in this Act.

Contrary to HAMA, the Juvenile Justice Act makes adoption available to anyone, regardless of faith, as long as they meet the requirements set forth by the Central Adoption Resource Authority (CARA).The Adoption Regulations, 2017 (also known as the AR), which establishes the norms and regulations for adoption programmes across the nation, were drafted by CARA, the Ministry of Women and Child Development's top controlling body in adoption matters. The prospective to adopt a child by parents is discussed under Section 57 of the JJ Act and Regulation 5 of AR. And one such requirement is "no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship". This regulation completely creates a barrier for the same sex couple, as their marriage is not legalized and it is not possible for them to establish two years of stable marriage. This renders them ineligible to apply for adoption. The social stigma associated with such couples also discourages the authorities from granting adoption to such couples.

If we look from the constitutional perspective, the above-mentioned regulations violate Article 14, 15 and 21 of the Indian Constitution. Article 14 guarantees that every Indian is equal before law and that everyone has equal protection from the law. This is a fundamental right of every citizen of India, but the distinction between married and unmarried couples for adoption is unjust, unfair and unreasonable in nature. While there is no proof that same-sex couples are in any way less capable of parenting than different-sex couples, there is also no rational connection that can be made by discriminating between different-sex and same-sex couples based on their sexual orientation.

Article 15 prohibits discrimination on the basis of "sex" which includes discrimination on grounds of sexual orientation. As a result, Article 15 protects the adoption rights of same-sex couples because they cannot be subjected to discrimination based on their sexual orientation and must be given the same opportunities for adoption as heterosexual couples. Article 21 protects the individual's life and liberty, which includes the right to live in dignity. Since the rights of the LGBTQI+ community are inalienable to natural and human rights, they are equal to those of other citizens and should not be treated like second-class citizens under the guise of social morality. The fact that same-sex couples are not entitled to adoption damages the dignity of the community members because it is based on their sexual orientation, which has nothing to do with their suitability or worth as prospective parents.

Raising a child is a very rewarding and joyful experience in a person's life, but in India if a child is raised by same sex couple it is regarded as a taboo and people look down upon them. The people in our society consider it unnatural for a same sex couple, just because two people are in love and want to have a family. People in our society fail to recognize the basic human rights of the people. LGBTQI+ parents are not even taken into consideration in a society like India, where single parents and live-in couples have so many difficulties. Even though a single parent can opt for adoption, it is not the same for the same- sex community as they can adopt as a single parent but the other partner is deprived of the legal rights over the child. In countries like Spain, Belgium, U.S, adoption is allowed by the same – sex couples, but in India this has yet to see the light of the day.

It is an irony that in India, the law would prefer children to be orphans and have them grow up without a family, than raised by homosexual couples. They are now not even permitted to become parents through surrogacy, as the new Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy Regulation Bill permits only Indian married couple to use surrogates. It is very unfortunate for the same sex couples, that they are denied the basic right to have a family and raise a child because of their gender identity and sexuality. The Indian Government must support programmes that debunk myths and remove social stigma associated with the way of life and interpersonal interactions of members of the LQBTQI+ community and discuss more on their adoption rights to provide equal opportunities to all.

Giving the LGBTQI+ community adoption rights will go a long way toward giving abandoned children a home and family and creating a sense of equality among homosexual couples.We should embrace the idea of two fathers or two mothers as well since the concept of a family with a mother and father is archaic.

Also Read: LGBTQ – Still Battling for Acceptance

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