Adoption of Child by Same Sex Couples


Abstract

The day 6th September, 2018, is considered a milestone in the Indian history. The Supreme Court judgement[1], decriminalized the part of Section 377 of the Indian Penal code, 1860, giving rights to the LGBTQ community to have personal relations in private with consent. While the community has gained the right to recognition and right to equality, the validity of same sex marriage has yet to be granted by the legislature. Other than the right of marriage, the issue of succession or rather forming a familial bond is always important for these couples. Since, the lesbian, gay or transgender couples cannot reproduce the children of their own they go for different options like fostering, adoption, surrogacy or any methods available. Adoption, here being the first and most flexible option available to them but, the laws are not in the favour of the same sex couples.

Contemporary Issues

 Though the world has become more open, accepting, there are still taboos in the society that are not as welcoming to the people opening up or exploring themselves. Often gay or lesbian couples are countered at each step of their decisions as to why? Is  it  necessary? Are you sure? And whatnot. These are few of the issues faced by them which will be discussed in further of the article.

  1. Religious beliefs
  2. Legal insecurities
  3. Lack of support from birth parents
  4. Possibility of discrimination
  5. Placement stability

Introduction

The basic unit in society is a family. The succession of family comes with children. After a longer await, if the  couple happens to be childless, they would opt for adoption. Thus, the adoption is a process, whereby, a person assumes the parenting of others child. Adoption exists across the world, in India also it existed in many forms from ancient times and continued in the modern day also. The main ideology behind adoption is to continue the progeny.

According to Hindu jurisprudence, right from the Vedic age to the modern day, adoption in some form or the other have been recognized. Predominantly, adoption was considered as sacramental act and with the passing of, the Hindu Maintenance and Adoption Act, 1956, it has clearly done away with all the religious and sacramental aspects and made the adoption a secular institution and secular act.

Adoption is one of those fictions of law which have been marshalled for furtherance of the individual interest. Generally, when we think of adoption, it is always a heterosexual couple, but, as people are becoming more advance and understanding about the situations around and also the nature of their own selves, they are becoming more and more aware of themselves, without the fear of society. A family bond need not necessarily be with those who share our blood. While, the marriage of the same sex couples is still not allowed in many States of the country, most of them are still living together forming a marriage like bond. Where the next step of marriage is to spread the love between them to their children. As the traditional methods of reproduction are not applicable for same sex couple, they prefer to adopt.

History of Adoption by Same Sex Couples

The history of adoption by same sex couples is brief, and that is because in the past, same sex couples were not considered, if someone said they were gay or lesbian, they were seen as if they were suffering from a mental disorder. The only way these couples lived was in secrecy from the society. This the case till today in few countries across the world. Having attractions towards the same sex was considered as crime in eyes of law and even considered evil in religious terms.

Europe: Denmark was the first country to allow adoption by same sex couples in the world in the year 1989. It gave a legal recognition, to same sex couples, who could register as domestic partners. In 1990’s civil unions were formed in Sweden, Norway Iceland and France legalizing adoptions for homosexual couples. By 2001, Germany had civil unions. By 2010 Denmark had passed a legislation for adoption by same sex couples and in 2012 a legislation on same sex marriage. But, the first same sex marriage took place in England and Wales in 2014[2]. France was the last country to pass legislation legalizing marriage and adoption by same sex couples[3].

United States: It was not until after the end of World War II, in 1970’s and 80’s[4], the gay adoption and gay civil rights movements started. In 1980’s and 90’s, single gay or lesbians started adopting children.

The first individual state to legalize gay couple adoption was Massachusetts in 2003. However, it was not until the landmark judgement was in the case of Obergefell v. Hodges[5], the Federal court, held that the Constitution guarantees the right to marry for same sex couples and their adoption rights under the 14th amendment[6], which guarantees citizenship and equal rights of law to everyone, and making it legal across all 50 states allowing marriage and adoption by same sex couples.

Another judgement which changed the fate of homosexual couples was striking down the law banning adoption by same sex couples in Mississippi by the Federal court in 2016. This federal decision blocked one of the last legal obstructions to same-sex couples hoping to adopt.

Forms of Adoption

Same sex couples go for adoption through private or public agencies or through open and independent adoption. There are different types of adoptions available to them, such as:

Second Parent Adoption: He second-parent adoption or co-parent adoption is a process by which a marriage partner can adopt her or his partner’s biological or adoptive child without terminating the first legal parent’s rights. This issue is of significant importance in the context of the LGBT adoption.

X and others v. Austria[7], where second parent adoption was not considered by the Government of Austria because the wording of the Austrian Civil Code did not permit unmarried same-sex couples access to legally granted second-parent adoptions, whereas it was available to unmarried heterosexual couples. The European Court on Human Rights, considered that the ruling built on discrimination protections that have been established as part of the body of LGBT rights in Europe.

Step- Parent Adoption: For LGBT parents who are married, Step-Parent adoption is the solution. The parent who did not give birth to the child or did not adopt the child (the “step-parent”) is given full parental rights. And the other parent does not lose any legal rights in a step-parent adoption. The end result is beautiful: the child now has two legal, forever parents. But, for the process to happen a petition must be filed in the concerned jurisdiction court, giving the consideration by the biological parents.

Full Joint Adoption: Here, the same sex couple adopt a child of their choice through any agency or independent process of adoption. After you the partners have committed to a joint parenting relationship, the first thing that they both should do is sit down and draw up a parenting agreement. This document should reflect that, although only one of them might be the true, legal parent of the child, both consider themselves and each other to be the parents of the child. They should both also indicate that they know the rights and responsibilities that come with parenting the child. Lastly, the agreement should also include a clause that they both wish to continue parenting even if your relationship ends.

Issues Faced

  1. Religious Beliefs: It is often observed that public opinion towards gay sexual relationship is more strongly related to religious practices and theological conservatism compared to attitudes regarding same sex marriages and adoption. Despite, enormous support given to the same sex couples, it is often even the adoption centres whose institution is based of religion, discriminate the same sex couples more often, shutting them out of the procedure in their trial of adopting children. While it is unconstitutional for married same-sex couples to be denied the right to adopt by a state agency, unfortunately, there are several states which have passed laws against gay adoption based on religious freedom.
  2. Legal Securities: Same sex adoption laws have come a long way across the world. For many years, same sex couples couldn’t adopt together due to discrimination and adoption requirements that they could not legally meet. In 2016, March, precedent was made from the case Obergrfell v.  Hodges, where Mississippi law overturned gay adoption. This changed the whole scenario in the United States and made adoption legal for same sex couples.
  3. Lack of Support from Birth Parents: A parent’s first reaction after hearing their child’s sexuality either lesbian or gay, is denial. They not only refuse to accept the fact but also ask their children to get tested psychologically and physically. The denial maybe because of the society or religious pressures or of the notion that once the child is gay or lesbian they won’t have any future. Either they convince or threaten their children to come to their senses and force them to be normal or they renounce them. Because of which the same sex couples have no personal support when in times of need making it difficult. But now, the parents are understanding and extending their support to children and also to their family, making the adopted child have a complete family on both the sides and not feeling left out.
  4. Possibility of Discrimination: The same sex couples face day to day basis of discrimination either on lifestyle, conjugal roles, societal roles. The discrimination not only limits to the couples but also to their children. The child of a homosexual couple is often discriminated by his fellow mates at school, home or any social gathering making it difficult for him or her.
  5. Placement Stability: It is well established that when couples turn into parents, their relation changes and also they undergo lots of stress. With the same sex couples, it is a bit more difficult to assign with the gender roles, the responsibilities taken, etc.

Parenting by Same-Sex Couples

‘No Differences’ theory[8], by American Psychological Association, declared that ‘there is no scientific evidence that parenting effectiveness is related to parent sexual orientation.’ There are many taboos in the society that if same sex couple raise children, the children will become like them or what are the gender roles will they play, etc.,. Well parenting by same sex couple is same as the parenting done by a normal couple. Studies[9] have shown that children whose parents were of same sex, are psychologically stable, do good in in their academics and are emotionally stable. Gay parents “tend to be more motivated, more committed than heterosexual parents on average, because they chose to be parents,” said Abbie Goldberg, a psychologist[10]. Role playing is not a problem, as same sex couples, are likely to share more responsibilities than hetero-sexual couples. The same sex couples, after facing many hurdles whether in society or their own family to marry, and then when they want to form a family, many agencies at least not at first sight, give children in adoption to same sex couples. After, all the processes they face, when they finally form a family, they put their whole heart in raising the children and give them their best in all facilities to make their children happy. With everyone against them, when they finally have a child, to will go to any bounds to see their child happy. Though sometimes, they may have problems like, if lesbians adopt, they can’t provide a fatherly hand or if gays adopt, they can’t provide motherly love. But, that problem is also now diminishing because as friends and family are accepting them, the adopted child is also a part of the family making no issue at all.

Adoption by Same Sex Couples with Reference to Personal Laws

Hindu Law: In Hindu law, according to Hindu Adoptions and Maintenance Act, 1956, the sections 7 and 8 explain the capacity of male and female to take in adoption respectively.

 Section 7- Capacity of a male Hindu to take in adoption:

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption.

Section 8- Capacity of a female Hindu to take in adoption:

Any female Hindu-

  1. Who is of sound mind,
  2. Who is not a minor, and
  3. Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be of unsound mind has the capacity to take in a son or daughter in adoption.

Islam Law: According to Islam, adoption was not recognized till late. Acknowledgment of paternity under Muslim law is the nearest approach to adoption. However, an adoption can be made from an orphanage by obtaining permission from the court under Guardians and Wards Act.

According to Islamic Adoption of Children Act, under section 9 (a) discussed about an adoption order shall not be made if  the applicant is a male and the child in respect of whom the application is made is a female, or the applicant is a female and the child is male, unless the child have connections by nasab[11] under which they are haram[12] to marry forever.

Christian Law: Christians in their personal laws do not have any rights of adoption, but can take in adoption with the permission of court. Christians in India can adopt children by resort to section 41 of the Juvenile Justice (Care and Protection) Act, 2006, read with the guidelines and rules issued by various State Governments.

According to the above understanding of the sections and scenarios under various personal laws, irrespective of a person being a heterosexual or homosexual, if they are single, they can go for adoption, but there is no provision for same sex couples to take in adoption.

Scenario in India

The law is clear on the stand of personal relations in private of the same sex relationships on the grounds of right to equality[13], right against discrimination[14] and right to life and liberty[15]. But, yet the government is not ready to recognize nor formulate legislations to validate issues such as marriage, divorce, maintenance, adoption and other issues of matrimonial nature[16]. Though the laws do not encourage or rather give right to same sex couples for adoption, an individual irrespective of their orientation and sexual preference can adopt under the Juvenile Justice Act, 2000[17]. It grants right for any individual to adopt a child and having a minimum of 18 years gap between the person and such child and the person being of sound mind, financial stability, good character can apply, and the application will be decided by the Child Welfare Committee[18]. But, often the hinderance is faced by the same sex couples or those from the LGBTQ community individuals who want to adopt because of the psychological and unnecessary or rather irrational fears of the society. Even if such adoption is granted, the children are ridiculed for their parent’s orientation and preference causing childhood trauma and psychological illness. Even if same sex couple are allowed to adopt, only one of them is recognized as the legal parent and has all the rights pertaining to the child, while the significant other no matter, how important he or she has played a role in child’s life, are not legally recognized and left with no rights or remedies.

The example of London based couple who settled in India is perfect to explain this situation. While the same sex couple have been living together for thirteen years and have raised the children together, only Raga Olga D’Silva, the biological mother has been recognized as legal parent while her significant other is not and will not be considered a parent and be given any rights and rather considered an emergency contact[19].

Conclusion

The decriminalization of Section 377 opened path for many individuals to come out of the closet and live their lives as they wish to be, the government is still not ready to recognize and grant all the civic rights. While, the live in relations continue and most of them after many hurdles are being able to adopt to share the traditional family bond, on the legal stand, they are not given the rights and remedies available to the traditional couples. The government should overcome the society’s perception and grant basic human rights to everyone regardless of their personal conventions. Spread of awareness that the same sex couples are more or less same, equal and most importantly a bond of love in the society and rid the society of the homophobic notions and perceptions. It has been almost three years since the landmark judgement recognizing rights of LGBTQ community, and it is time for giving the full fledged rights.


[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] Marriage (Same Sex Couples) Act, 2013

[3] 18th may, 2013.

[4] Civil Rights movement.

[5] 135 S. Ct. 2584 (2015).

[6] July 9, 1868.

[7] 53 ILM 64; year 2013

[8] 2004 Endorsement.

[9] Michigan University Survey.

[10] Clark University, Massachusetts.

[11] Meaning: genealogy, family, lineage.

[12] Meaning: forbidden or proscribed by Islamic law.

[13] INDIA CONST. art. 14.

[14] INDIA CONST. art. 15, cl. 1.

[15] INDIA CONST. art. 21.

[16] Samanwaya Rautray, Same Sex Marriages Cannot be given legal Sanction: Government, ECONOMIC TIMES, https://economictimes.indiatimes.com/news/politics-and-nation/same-sex-partners-not-comparable-with-indian-concept-government/articleshow/81209328.cms.

[17] Juvenile Justice (Care and Protection) Act, 2000, S. 41, Acts by Parliament (2000).

[18] Juvenile Justice (Care and Protection) Act, 2000, S. 29, Acts by Parliament (2000).

[19] Tarini Mehta, Where are India’s queer parents? Having a family is not even an option for many Indians, THE PRINT, https://theprint.in/opinion/where-are-indias-queer-parents/608267/.

Author- Lingamaneni Meghana (ICFAI University (Hyd))

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