LGBTQ’s ADOPTION RIGHTS

LGBTQ’s ADOPTION RIGHTS

 

Author:- Aakanksha Yadav, a 4th year B.B.A LL.B(hons), BabaSaheb BhimRao Ambedkar University, Lucknow 

LGBTQ+ is an acronym term that stands for Lesbian, Gay, Bisexual, Transgender and Queer, are  those people who are not heterosexual and/or cisgender but a class of homosexual people i.e. sexual attraction, or sexual behaviour between members of the same sex or gender. A community that has faced not only societal discrimination due to their identity but also have faced legal discrimination which operates throughout the criminal and civil law systems.  Community is struggling to claim their rights as a citizen of India since its independence. The civil rights of the LGBTQ community like the right to adopt, right to marriage, etc. Are also not being recognized at par with their heterosexual counterparts. 

Adoption Rights are mainly mended and secured to heterosexual individual. Though for adoption marital status and sexual orientation doesn’t prohibit any person to adopt under either the Juvenile Justice Act or Hindu Adoptions and Maintenance Act (HAMA) but still the laws of India regarding Adoption are biased and discriminatory in many senses. In 2018 the Apex Court in its landmark judgement of Navtej Singh Johar v. Union of India  has decriminalized homosexuality by reading down part of Section 377 which criminalizes the consensual sexual act of adults in private. However, the court has not paid heed to the civil rights of LGBTQ like the right to marriage, the right to adoption, etc.

If we through light on the adoption regulations such as The Hindu Adoption And Maintenance Act, 1956 and Juvenile Justice (Care And Protection Of Children) Act , they are discriminatory nature as they specifically use words like husband’ and ‘wife’ or couple, representing their heterosexual nature. The acts is silent on adoption rights of “third gender”. It is also evident from a bare reading of the Act that it is made on a binary understanding of gender. Another disability LGBTQ community faces is not having the right to marriage which in turn neglects their right to adopt. Even after the landmark Navtej Singh Johar case which authorizes and validates same-sex relationships but doesn’t further give any hint about other rights of LGBTQ community. Post the decision in Navtej Johar; the rights of this community have been deliberately ignored. By denying their “right to adopt”, it’s a violation of their fundamental rights under article 14,15 and 21. Equal right to adoption gains importance for the LGBTQ community as that is the only possible way through which LGBTQ couples and individual can live a family life with children, as the method of IVF is very expensive and as they are barred by law from surrogacy.  Many social and economic injustices have surrounded the adoption of children by the LGBTQ community. 

There  is need for amending the Hindu Adoptions and Maintenance Act, Hindu Marriage Act, Surrogacy Act and Hindu Marriage Act for providing rights with protection to the homosexual class of people same as to level of heterosexual people. There should be “amendment to the Special Marriage Act of 1954” to allow same-sex weddings. The word “sex” must have a broader interpretation which includes distinction based on gender identity and sexual orientation.