There has been a long debate about whether the Parenting Rights should be
given to LGBTQ Community or not. LGBTQ Community, which still in the times of
modernization, is considered as backward and are still fighting for their
rights. Various Jurisdictions have enacted various laws for protection of rights
of people belonging to this community. But only few countries have enacted such
laws that guarantee parenting rights to LGBTQ Community. People belonging to
LGBTQ community still struggle for acquiring parenting rights legally due to the
widespread ignorance of their sexual identity, sexual preference and the
incommunicable complexities inherent in transitioning.
Parenting refers to intricacies of raising a child not exclusively for a
biological relationship. Biology is not always the determining factor for
finding who are the legal parents. For determination of psychological parent,
biology is not the only factor. American Civil Liberties Union conducted a
research in which it found out no evidence that suggests that people from LGTBQ
community are unfit to raise a child, rather it is more likely for a child to
grow up with good values and such parenting helps in child’s development as
those with heterosexual parents. Good Parenting is influenced by parent’s
ability to take a good care and impart good values to a child, parenting has
nothing to do with sexual orientation.
India recently introduced Transgender Bill, 2019 so as to Guarantee rights to
the people from the Transgender community. But the bill is not greeted by the
community in a welcoming way as the bill has been hastily drafted.
The Bill has many lacunas in it and has failed to cover essential needs of the
community one of which is to provide the Transgender Community the Adoption
Rights. In fact, The Bill does not even provide for an appropriate mechanism to
determine one’s gender, it provides a person to go through proper screening by
District Magistrate, Chief Medical Officer and Psychologist under Section 7 for
issue of certificate to identify him as transgender after the application is
made under Section 5 by the person to the District Magistrate. This is a very
time consuming and a dehumanizing process because identifying the gender of a
person based on his physical traits is not correct.
Justice Radhakrishnan in National Legal Services Authority v. Union of India elaborated
the principle of self-identification and said:
“Gender identity lies at the core of one’s personal identity, gender expression
and presentation and therefore, it will have to be protected under Article
19(1)(a) of the Constitution. A transgender person’s personality could be
expressed by his behaviour and presentation. State cannot prohibit, restrict or
interfere with their expression of such personality, which reflects that
The procedure provided by the Bill to identify a person’s gender deviates from
what was said in the NALSA Judgment.
India is one such country that is still developing its society to accept people
from LGBTQ community. Various steps that have been taken in country include the
Landmark Judgment of Navtej Johar in which the Constitutional Bench of Supreme
Court strike down Section 377 of Indian Penal Code which criminalized
homosexuality. But in today’s world India still lags behind when it comes to
grant certain rights such as adoption and parenting rights.
Although India has taken steps for serving justice to the LGBTQ community but
granting parenting and adoption rights to the people of this community is very
important. In India, adoption laws are governed by the Hindu Adoption and
Maintenance Act, 1956 which provides for the mechanism and procedure for
adopting a child in India by any Hindu , which till date is silent when it comes
to the adoption by same sex couples. Section 8 of the act states that an
unmarried female can adopt a child but according to Section 7 of the Act a male
can only adopt if he has a ‘wife living’.
Personal law of Muslims, Christians, Parsis and Jews does not recognize complete
adoption. As non-Hindus do not have an enabling law to adopt a child legally,
those desirous of adopting a child can only take the child in 'guardianship'
under the provisions of The Guardian and Wards Act, 1890. Even this act does not
talk about adoption rights to LGBTQ community.
As said by Justice KS Radhakrishnan:
The spirit of the Constitution is to provide equal opportunity to every citizen
to grow and attain their potential, irrespective of caste, religion or gender.
The Supreme Court has already recognized LGBTQ community as the third gender.
The dimensions and perspectives of the meaning and content of fundamental rights
are in a process of constant evolution as is bound to happen in a vibrant
democracy where the mind is always free, Now is the high time they should be
treated as the third gender in real sense by giving them all those benefits
which the other two genders have.
All these impel us to take the view that the present is an appropriate time and
stage where the right to adopt and the right to be adopted can also be raised to
the status of a fundamental right and/or to understand such a right to be
encompassed by Article 21 of the Constitution as was sought in the case of Shabnam
Hashmi v. Union of India.
Parenting Rights to people belonging to LGBTQ community have been granted in
many countries. In Sweden, discrimination on the basis of sexual orientation
and gender identity and expression has been banned since 1987.
Gay and lesbian couples can adopt children since 2003 and lesbian couples have
had equal access to IVF and assisted insemination since 2005. South Africa is
one such country and the only African Country which has allowed joint adoption
by the same sex couples.
After the case of Du Toit v Minister of Welfare and Population
Development the Constitutional Court Amended the Child Care Act, 1983 and
enacted Children’s Act, 2005 that enables same sex couple to adopt a child.
Similarly, in England The Adoption and Children Act, 2002 enabled the unmarried
same sex couples to adopt a child. For adopting child, the couple just needs to
prove that they are living together and just need to show that they are having
an enduring relationship.
Why should a child be denied a caring family because some people backed by
religious extremist object to LGBT people? The community had long suffered from
discrimination and ignorance in the traditionally conservative country.
Presently, there are no laws in the country which talks about adoption and
parenting rights to the LGBTQ community. India as a country is in a ‘knee point’
regarding LGBT child adoption rights right now. It just needs a push in the
right direction. Nothing is better than that push coming from the legal system
of the country. It’s high time the legislators need to make the relevant
amendments in the Adoption Laws of the country.
Anyone who is able to provide a child with a safe, secure and loving home should
be entitled to adopt a child.
Written By: Animesh Upadhyay & Aakash Kumar - 4th year BA.LLB (Hons.)
students at Dr. Ram Manohar Lohiya National Law University, Lucknow