Adoption Law Raises Question Of Recognising Same-Sex Union: Experts

While homosexuality in India was decriminalised in 2018, same-sex marriages are still not recognised.

An LGBTQ person can apply for adoption to CARA as a single parent only. 

(Photo: PTI)

The law does not prohibit adoption based on sexual orientation but LGBTQ members will be able adopt as a couple if same-sex union gets legalised in India as live-in couples are not yet permitted to adopt a child in the country, experts have said.

They were reacting after a parliamentary standing committee on Law and Personnel said there was a need to harmonise the Hindu Adoptions and Maintenance Act and the Juvenile Justice Act to bring out a uniform and comprehensive legislation on adoption that should cover all religions and the LGBTQ (lesbian, gay, bisexual, transgender and queer) community.

While the recommendations are progressive, experts and activists have pointed out that the issue of recognising LGBT marriages and civil unions as well allowing live-in couples to adopt have to be dealt with for a uniform law.

Homosexuality in India was decriminalised in 2018 but same-sex marriages are still not recognised. Also under the Juvenile Justice Act, either single persons or a couple in a stable marital relationship can adopt.

Tara Narula, advocate and legal fellow at 'HAQ: Centre for Child Rights' said the law does not permit or prohibit adoption based on sexual orientation, so any person can adopt under either the Juvenile Justice Act or Hindu Adoptions and Maintenance Act (HAMA).

But "there is no law which accommodates either same-sex marriage or live-in relationships for the purpose of adoption," she told PTI.

Therefore an LGBTQ person can apply to Central Adoption Review Authority (CARA) for adoption as a single parent only.

'Legalisation of Same-Sex Union Will End Discrimination Against LGBTQ Members'

If same-sex union gets legalised in India, lawyers and child rights activists said it will end the "discrimination" against LGBTQ+ members who will be able to adopt as a married couple.

Narula said the bundle of social rights that LGBTQ persons are entitled to has not yet been realised by the State. When these come together holistically, then only will non-normative relationships be able to avail a full, legally recognised, right to family.

As of date, an LGBTQ person can apply to CARA to adopt as a single parent under the regime of the Juvenile Justice Act, 2015, and can also enter into an adoption deed under the Hindu Adoption and Maintenance Act,

Tara Narula, advocate and legal fellow at HAQ: Centre for Child Rights

"As of date, an LGBTQ person can apply to CARA to adopt as a single parent under the regime of the Juvenile Justice Act, 2015, and can also enter into an adoption deed under the Hindu Adoption and Maintenance Act," she said.

"Therefore, the discrimination is against LGBTQ persons who may wish to adopt as a couple," she said. Narula added that people from the community have been legally adopting children in India for several years now, albeit without explicit recognition.

"We need to reach a stage where not just the rights of LGBTQ persons are recognised, but same-sex unions also receive equal treatment under the law," she said.

Child rights activist Enakshi Ganguly said she is glad that people are speaking about it because it will have a far-reaching impact on adopted children.

"So what are they going to do next to recognise co-habitation of two people - will they bring in a marriage law or will they allow for marriage what will they do is my question.

"... it means children will be entitled to property rights from both people and the whole dimension changes from a single parent to couple parenthood so what are we going to do to recognise LGBTQ relationship in a legal framework is important," she told PTI.

The parliamentary panel report recommended that the new law may prescribe separate adoption procedures for institutionalised children and children living with families.

"As regards adoption by relatives, the adoption process should be more flexible and simplified and involve less documentation ...The Committee feels that the new legislation should cover the LGBTQ community," the panel said.

Anindit Roy Chowdhury, chief programme officer, Save the Children - India lauded the parliamentary panel's recommendation for a uniform civil code on the adoption of children.

'Progressive Attempt To Harmonise HAMA'

"This is a very progressive attempt to harmonise the Hindu Adoptions and Maintenance Act (HAMA) and Juvenile Justice Act, which will not just bring the best of both legislation but also promote secular, unbiased benchmarks for adoption.

"The government is already doing exemplary work in managing the adoption process in the country through CARAand we strongly support the government if the uniform law on adoption is passed," he said