1. .
SAME SEX ADOPTION IN INDIA
WHETHER ABOLITION OF SECTION 377 IPC WILL PAVE
WAY FOR ADOPTION RIGHTS OF SAME -SEX COUPLES IN
INDIA?
The homosexuals are unfairly discriminated in every aspect of legal and social
identity and their rights are not recognised as par with the other communities of the
state such as in family and adoption laws. All the laws on adoption or family are
discriminatory or either tilted to religion and India is constitutional democracy not a
majoritarian democracy where every citizen has equal right irrespective of their
gender or sex lies at the core of fundamental right guaranteed by Articles 14, 15, and
21 of the constitution.
.
2. INTRODUCTION
A tussle is now taking place between old draconian criminal law which shackles LGBT lives
for adoptions or many other rights and the new constitutional interpretations which seek to
confirm the innate dignity to which the LGBT persons are entitled. Following the recent
decision of supreme court of India in Navtej Singh Johor vs Union of India decriminalised
section 377 IPC,1 which is colonial old draconian law that discriminates on the basis of
gender and sexual orientation. Supreme court of India ruled in favour of the LGBT
community as this section is against the spirit of constitutional democracy where everyone
have equal rights regardless of their sexual identity. And these principles are embodied in the
fundamental rights such as Article 14,19, and 21 of the constitution. This paper argues that
decriminalizing is the section is not enough because same-sex relationship couple are also the
citizen of India, as there is no such law for same-sex couple regarding marriage, adoption, or
family etc. If there are laws then they all are discriminatory and tilted to particular religion.
The concept of equality of sexes is not a special characteristic of particular society, it is
universally cherished ideal and has been recognised as a human right. 23India is pluralist
country having different religion and different communities have their own culture and they
all are united in the one thread of secularism where every person is treated equal but still
there exist a discrimination in our country the same-sex couples like LGBT have no rights or
law in our country. So, in this paper I will explain the current situation pf this community in
our country especially my focus is on the family and adoption laws. As there are so many
laws in country regarding Marriage, Adoption, Family, Special marriage Act and Surrogacy
Act and so on. But they all are tilted towards the particular religion or mainly on the
Heterosexual couples and there is no provision for Homosexual couples. The Warren
Hastings plan of 17723 expressly stated that the Hindus and Muslim of India would be
governed by their personal laws in family matters and I will discuss the five emblematic
cases which makes base for the struggle of their rights which are two from times that is
Queen v. Khairati and Nowshriwan v. Emperor and three are contemporary. So, we can say
that these laws are embodied in our country by colonial regime. And if we take example of
beloved saint and Indian poet Kabir of 15th century his birth and upbringing has long
1
(2018) SSC 10 1
2 Universal Declaration of Human Rights 1948 Article 1. ‘All human beings are born free and equal in dignity and rights
3Act 11 of 1772, adopted as Regulation of 17th April 1780, S, 27
4 Rohit Mehta, krishanamurti and saint Kabir a study in depth (1st
edn, Motilal Banarasidass Publishers 1990) 1.
5 https://yogyakartaprinciples.org/
3. remained mystery. Revered by Hindus, Muslims, and Sikhs, it is rumoured that he was born
to unwed Brahman Woman who abandoned him at birth. Found by lake in Varanasi, he was
adopted and raised by Muslim weavers.4 So, we can say that there were no laws in ancient
India which are anti-discriminatory in nature. And in this paper, I will explain one by one
about laws that are discriminatory for same -sex couples and creates impediment in the
development of this community in our country as there no such law exist as we compare to
many other foreign nations that have laws for same- sex couples. And in this paper, I will
also discuss about the Yogyakarta Principle5 on the Issues of Sexual Orientation and gender
identity as India is also signatories to the additional Principle and State obligations.
FAMILY AND ADOPTION LAWS IN INDIA
Family Laws only recognise heterosexual union, depriving same -sex couples of the all the
benefits as well as the social and legal recognition by the that married person enjoyed.4 As we
see in our society there are multiples of schemes are run by the state or central government
but their eligibility is the somewhat or mostly for the married couples or who have family,
like pension or ration card benefits. In Hindu Marriage and Adoption Act 1956, it is clearly
mention that the only Hindu, Buddhist, Jain, and Sikh can adopt, hereafter HAMA forbids the
such interreligious or same -sex couples’ adoption in India. These religious and contemporary
laws fail to reflect the realities of the Indian people and their desires. Islamic adoption has
been excluded from this research as it is conceptually recognized to be limited guardianship
and is not covered under the HAMA5. And Muslim adoption and Christian adoption is
governed by different law, So all the laws are anti secular and discriminatory towards the
same sex couples as in all these all it is clearly mention certain terms such as Male and
Female or Bride or Groom it clearly discriminates same-sex couples as in these all there is no
mention of Homosexual . It would be unfeasible to seek amendments of personal laws to
obtain such recognition since it would encounter strong opposition invoking religious
freedoms. It concludes that the most viable manner of attaining legislative recognition of
same-sex marriages would be an amendment of the Special Marriage Act6. As Special
Marriage Act is secular in nature but it unfairly discriminates the LGBT community
members. Government must seek amendment to the act and add new provision so that they
get social and legal recognition. The struggle against social and legal discrimination of the
4
NayantaraRavichandran, 'Legal Recognition of Same-Sex Relationships in India' (2014) 5 J INDIAN L & SOC'Y 95
5
Harneel K Lally, 'Divided Dharma and Adoption Laws in India' (2017) 4 SOAS LJ 133
6 The Special Marriage Act, 1954
4. lesbian, gay, bisexual and transgendered community ('LGBT) has been long and arduous. The
initial objective of decriminalising private and consensual same-sex acts has been achieved in
most countries either by legislation or by courts overturning such laws, though seventy-six
countries, largely in Africa and West Asia, still retain such laws.7 It is not sufficient to merely
decriminalise the section 377 IPC but should examine the various method through which
they can get legal recognition of their rights. In India, where along with rapid modernisation,
there has been growth of conservative and revivalist ideas,8 this opposition in the name of
tradition, culture and religion, however misguided, will be strong and will act as an
impediment to liberal legislation.9 In a country like India where family is considered as the
microcosm of society, One cannot live without family or seek to achieve radical changes in
society while seeking acceptance into its traditional family norms. Both inside and outside the
LGBT communities, there are differing views about the desirability of marriage-either in any
given individual's personal life or as to government policies that use marriage as a condition
for a wide range of benefits.10 After the Central Adoption Resource Authority (CARA) issued
guidelines for adoption, single persons and unmarried couples have found it increasingly
difficult to adopt.11 In Central Adoption And Regulation Authority of India mention only
statistics of only Male and Female child and nowhere in the website mention of Homosexual
couples 12and CARA allows unmarried men and women above the age of 30 to adopt. Single
LGBT Indians are not specifically barred from adopting. The Central Adoption Resource
Authority (CARA) guidelines prevent foreigners in same-sex relationships from adopting
children in India. Many Indian LGBT persons in same-sex relationships have adopted
children as single parents, but their partners have no legal rights over the child.
“This is the first time that the government has openly taken an anti-same-sex couple stand,"
said Poornima (name changed), a 33-year-old Delhi-based activist who has initiated the
process of adopting a child. Even without the proposed Bill, there are stumbling blocks—one
of the documents Poornima must submit is a recommendation letter from a family member.
However, her family is not supportive of her sexuality or her decision to adopt. Her partner,
7 UN HumanRights Council, Report of the UnitedNations HighCommissioner for Human Rights on Discriminatorylaws and
practices andacts of violence against individuals basedon their sexual orientation and gender identity, (November 17,
zon), <http://www.refworld.org/docid/ 4 efo9 zozz.html.>
8 SUNIL KHILNANI, THE IDEA OF INDIA IO (2004).
9 Suresh Kumar Koushal, supra note I, at paras 4-5.
10 MaryL. Bonauto, Goodridge inContext, 40 HARV. C.R.-C.L. L. REV. I (2005).
11 SiddharthNarrain & Birsha Ohdedar, A legal perspective onSame-Sex Marriage andother Queer relationships inIndia,
ORINAM, http://orinam.net/resources-for/law-and-enforcement/ same-sex-marriage-in-indial
12‘Ministryof Women and ChidDevelopment’ <http://cara.nic.in/resource/adoption_Stattistics.html> accessedon 30 Aug
2019
5. whose family is in favour of both—the planned adoption and her relationship with
Poornima—is 28 years old, and needs to wait two more years before she can legally adopt.
13
A further utilitarian argument made after a detailed survey of social science research on the
subject is that same-sex and heterosexual relationships do not differ in their essential
psychosocial dimensions, that marriage bestows substantial psychological, social, and health
benefits and that same-sex couples and their children are likely to benefit in numerous ways
from a legal recognition of the relationship as marriage.14 Many people think that the children
adopted by the same-sex couples will not able nurture properly but this is not true15, the child
get many advantages from couple.
CIVIL UNION: A FAIR APPROACH
One alternative is to seek the legal recognition of same-sex couples not through marriages but
as civil unions or partnerships. Legislations recognising civil unions have been enacted in
many states in the United States of America, several Latin American and European countries,
Australia and New Zealand.16 Different models implemented in their countries some have
fully recognised their rights or some have semi-recognised their rights. Other models, like
that enacted in Vermont following a direction of Supreme Court of Vermont,17 provide
partners with the same legal benefits as those who are joined in marriage.18 This type of civil
union is good alternative to country like India where people are conservative or have deep
faith in religion and consider that only heterosexual can marry. If a civil union model were to
be adopted in India, it would be necessary not only to enact a new law governing civil unions
but also amend relevant legislations like the Indian Succession Act, 1925, Guardians and
Wards Act, 1890, Workmen's Compensation Act, 1923 and a host of other legislations
relating to succession, adoption, pensions etc.19
13
Dhamani Ratnam, ‘Adoption by same sex couple may be
barred’<https://www.livemint.com/Politics/J3opALtv29XMrLV6keC2lO/Adoption-by-samesex-couples-may-be-
barred.html> accessed on 29 Aug. 2019
14
Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective,
61(6) AMER. PSYCHO. 607-6zi (zoo6
15
Dada Ra ‘Same Sex Marriage Adoption is Healthy’<https://guardianlv.com/2013/12/same-sex-marriage-adoption-is-
healthy-studies-show/> accessed on 29 Aug. 2019
16
NICOLA BARKER, NOT THEMARRYING KIND - A FEMINIST CRITIQUEOF SAME-SEX
MARRIAGE48 (2012).
17
Baker v. Vermont, 744 A zd 864 (Vt 1999).
18
NICOLA BARKER, supranote 30
19
NayantaraRavichandran, 'Legal Recognition of Same-Sex Relationships in India' (2014) 5 J INDIAN L & SOC'Y 95
6. SURROGACYAND ITS PITFALLS
India has been major hub from the past two decades for especially the foreigners to have
child through surrogacy.20 In case of Israeli gay couple Yonatan and Omer Gher, India
permitted the surrogacy arrangement which was fathered with the sperm of Yonatan, the
genetic or biological father of the child. And in the Baby Manji Yamada v Union of India and
Another21 judgement of Supreme court of India held:
‘Alternatively, the intended male parent may be a single male or male homosexual couple’.
As per Supreme Court judgement the court supported the rights of same-sex couples in
surrogacy. But still in present scenario after criminalising the section 377 IPC, there is no law
for same-sex couples for adoption. And government is acting conversely for the right of
homosexuals as in the ‘The Surrogacy (Regulation) Bill, 2016’ mentions that homosexuals
and single parent are not allowed to have children via surrogacy in India.
CONCLUSION
The same-sex couples are also the citizen of India and they are also entitled to the equal
rights in socio, economic and political arena. As our country is Secular, Socialistic,
Democratic, and Republic22 where every citizen is equal in terms of sexual orientation or
gender etc. It clear from the judgement of Supreme Court of India in Navtej Singh v. Union
of India that LGBT community have equal rights in every aspect and govt. should enact a law
for same-sex couple adoption or either through judicial activism. There should be a uniform
law in the arena of family law but this act will have strong opposition because every religion
has different code of family but as I mentioned alternative that is civil union. And Surrogacy
is also wonderful option for same-sex couples who want to expand their families and this will
fulfil the parenting dreams of LGBT community. And in Florida appellate court in Florida
Department of Children and Families v. Adoption of XXG ruled that statute banning
homosexual was unconstitutional and held that this law violated the equal protection clause
under Florida Constitution and allowed to adopt. Some states are progressing and some are
still on their old beliefs. There numerous children are living in foster care system it will be
lifeline for them and homosexuals. So, India should also take this progressive step for their
rights either through judiciary or legislations.23
20
Admin Lawn ‘Surrogacy Law In India’< https://www.lawnn.com/article-surrogacy-law-india/> accessed on 30 Aug. 2019
21
MANU/SC/8083/2008
22
Preamble of the Indian Constitution
23 Nichele Marks, 'Same-Sex Couple Adoption' (2012) 32 CHILD LEGAL RTS J 78
