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Adoption And LGBTQ Community

Adoption is a process that impacts the life of a child and changes it completely. It has great implications. Hence, while dealing with the process of adoption, the sole criteria should be the welfare of the child. In India, adoption is governed by personal laws and thus, every religion has its own rules and regulations.

It is a universally acceptable norm that adoptions should take place only when they are in the best interest of the child.

Best Interest

Despite being clear on the need to uphold the best interest of the child, there is lack of consensus as to what these interests are. International standards themselves do not specify any criteria at all as to how and by whom should these interests be determined or who should be held responsible for their final decision.[1]

Hence, what constitutes 'best interest' has varied over the years and still does. It was only after the CRC i.e. the Convention on the Rights of the Child came into force in the year 1990 that the Committee on the Rights of the Child made an attempt to fill this void through General Comment No. 14[2] issued in 2013 which set out how the best interests of the child should be taken into consideration in implementing the Convention.

The notion of best interests pre-dates the development of internationally accepted norms of human rights. Nonetheless, when decisions based on best interests are grounded predominantly in contemporary thinking among decision-makers the results are not solely based on child's rights but many other circumstances like religion and region.

This is unacceptable in the case of any child, and particularly those who might be adopted to another country; vulnerable children should not be part of an 'experiment' that will determine their future. Article 21(b) [3] of the CRC states that inter-country adoption must be resorted to only in certain specific circumstances. This is for the adoption agencies in various signatory countries to take note of.

Section 377

This provision[4] was intended to punish individuals for a specific kind of sexual offence. The offence consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural way with a woman or by a man or woman in any manner with an animal. The peculiar ingredient in this provision was against the order of nature.

Against The Order Of Nature

Section 377 used a very peculiar term for punishing individuals and that was against the order of nature.
However, what does it really mean? What is natural about sexual relations? God has made human beings for various purposes and establishing sexual relations also has a purpose. That purpose according to every religion and every belief across the world is to procreate, to have children. Thus, any such physical relation that will not ultimately lead to legitimate children is condemned by all religions unanimously. Hence, obviously since homosexual relations or bestiality in no way can naturally lead to procreation of children, all such relations fall under the ambit of against the order of nature.

Now the next question which arises is why was this punishable? Every single religion or community or society in this world, irrespective of how liberal it may become, has not given up on its core principles. And all religions irrespective of how different they are, unanimously condemn, oppose and criminalise such relations between individuals.

This was the basis of Section 377 as well that nobody could have imagined back in the 1860s that people in the future will develop such kind of a sexual orientation as well. Even in 1950 when we got our Constitution and we got Article 21 and the right of life and personal liberty, nobody could have imagined that establishing such sexual relations will become a part of that liberty as well. This is exactly the reason why Section 377 remained in existence without any change for so long.

The Case Of Suresh Kumar Koushal And The Begining Of Recongising Rights Of Homosexuals

The Universal Declaration of Human Rights (hereinafter, 'the UDHR') adopted on December 10, 1948 states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.[5]

December 10th is celebrated as Human Rights Day. Ironically, on 11th December, 2013, a liberating and internationally acclaimed judgment of the Delhi High Court was reversed by the Honorable Supreme Court of India after 4 years. The judgment by the Delhi High Court delivered on 2nd July, 2009[6], though welcomed by the public at large, was much criticized by the legal fraternity, claiming that it was unlawful vide Section 377. The Supreme Court on appeal reversed the decision saying that it was against the erstwhile provision under the Indian Penal Code.[7]

However, the problem with the judgment of the Delhi High Court was the defunct provision under Section 377. The Supreme Court in its judgment categorically specified that this matter shall be decided by the Parliament.
There was much hue and cry about this for many years which was finally put to rest in the year 2018.

The Case Of Navtej Singh Johar

Recently, in Navtej Singh Johar v. Union of India[8], a Bench of the Honorable Supreme Court of India, headed by the former Chief Justice, Honorable Justice Dipak Misra, read down the colonial law to the extent to which it hampered individual freedoms and rights of homosexuals in this country.

Sexual orientation varies from one individual to the other. A general rule can never be laid down. It's not always that a man is attracted to a woman or a woman is attracted to a man. When Michael Kirby, a former judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was 'Sexual Orientation and Gender Identity – a new province of law for India'. In 1999, Justice Kirby had made it public that he was homosexual.

Homosexuality though attracts a unique sexual orientation but is certainly not an offence. While most religions condemn it, a secular country is not expected to be driven by religious bindings while making secular laws. Thus, finally the Honorable Supreme Court in September 2018 vide its judgment in Navtej Singh Johar v. Union of India[9] struck down portions of Section 377 that criminalized consensual sexual relations between same-sex couples. Thus, the present law under Section 377 doesn't punish individuals for establishing consensual homosexual relations.

Issue Of Adoption And Homosexual Couples

The Honorable Supreme Court of India through its judgment in Navtej Singh Johar has succeeded in breaking through the glass ceiling and upheld individual freedoms to a great extent. However, this judgment has its own flaws. In my view it was an incomplete judgment.

The Honorable Supreme Court while legitimizing homosexual relations, failed to recognize and legitimize all such rights that heterosexual couples enjoy. One such was the right of taking a child in adoption.

The law of adoption in India is governed by the personal laws and there are secular laws as well that guarantee this right to individuals. However, none of these laws recognize the right of homosexual couples to take a child in adoption. Since the 'best interest' of the child is the prime concern while dealing with adoption, the sexual orientation of the couple shouldn't bother adoption agencies provided it will not have a negative impact on the development of the child.

Hence, this is an area which now needs to be taken care of and the judiciary or the legislature must vide an order or direction or some legislation, respectively, recognize this right of homosexual couples.

End-Notes:
  1. The United Nations Convention on the Rights of the Child specifies 'best interests' at many places however, nowhere has it been defined. Hence, it shall differ from case to case.
  2. United Nations Committee on the Rights of the Child: General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art. 3, para. 1), CRC/C/GC/14.
  3. Article 21- States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
    (b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if
    the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
  4. 377. Unnatural offences. – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [4][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
    Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  5. The Universal Declaration of Human Rights, 1948, art. 1.
  6. Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
  7. Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1.
  8. (2018) 10 SCC 1.
  9. Ibid.

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