In India, people belonging to the lesbian, gay, bisexual, transgender, queer (LGBTQ) community face many legal and social difficulties that are not experienced by others. Though the country has repealed its colonial-era laws that directly discriminated against gay sex and transgender identification, even then many legal protections have not been provided for which includes adoption rights as well. The Central Adoption Resource Authority (CARA) guidelines prevent foreigners in same-sex relationships from adopting children in India. CARA is a statutory body of the Ministry of Women and Child Development that regulates the adoption of children by foreigners and Indian residents through inter-country and in-country adoption, regulations respectfully.
The Union Cabinet had decided to stop same-sex couples from adopting children in 2014. This would have also prevented the lesbian, gay, bisexual and transgender (LGBT) community from becoming adoptive parents. The cabinet took this decision while considering the amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000. However, the draft bill which talks about rehabilitation and adoption of children does not mention disallowing same-sex couples from adopting.
According to the current laws, single LGBT Indians are not specifically barred from adopting. Adopted in 2019, the Transgender Persons (Protection of Rights) Bill 2019 bars discrimination against transgender people in areas such as private employment, education and healthcare.
In the case of Navtej Singh Johar vs. Union of India, the Supreme Court ruled that the Indian Constitution bans discrimination on sexual orientation and sex, and declared such discrimination to be unconstitutional. Similarly, in the case of National Legal Services Authority vs. Union of India, the SC ruled that discrimination on the basis of gender identity is constitutionally prohibited. K.S. Panicker Radhakrishnan, Supreme Court Judge, said that “gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as the third gender. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of transposing equality by the law or the equal protection of the law guaranteed under our Constitution.”
Did The 2018 Judgment Render Full Justice To The LGBTQ Community?
With changes and positive approaches towards bringing legal changes according to the changing demands and need of the society, India has now been witnessing positive achievements. But even today, it hasn’t been able to change the approach and thought process of people, and hence the LGBT community has to suffer. At first, the fight was for an identity, and now that they have achieved it, the fight is to gain other legal rights which they should get like every other citizen of the society gets.
The question that deserves attention right now is whether justice has been actually served to the LGBT community in every way? The answer to this no. What conditions are necessary for a parent to adopt a child? CARA mentions eight (8) heads for the eligibility criteria for prospective adoptive parents.
It clearly details that a parent is required to be physically, mentally and emotionally stable, financially capable and not have a life-threatening medical condition. Also, the prospective age difference between the child and the parent or either parent should not be less than twenty-five years.
None of the conditions mentioned in the eight heads of CARA talk about LGBTQ parents. There is nothing wrong for the community to expect a normal life that every other person gets to lead. Rearing a child, raising them up and doing everything that a normal couple and a parent do should be rightfully made legal.
If this amendment is made in CARA, it will help in bringing a radical change for the whole LGBT community, since they are still finding it practically difficult to secure their place in the mainstream society and its outlook towards what is ethically right and what is ethically wrong. Even though they are now allowed to live together and stay as a couple legally, they are still not allowed to adopt a child and feel happy as all other parents feel do.
Law is dynamic; it changes according to the needs and demands of time. The fight for the LGBT community is not over. They are still struggling to get the privileges and rights that other members of society enjoy. It is very essential for the legal body to review its provisions and amend it to give adoption rights to the LGBT community.
Article by: Mukti Heliwal in Human Rights, LGBTQ