The Queer Question of Same-Sex Adoptions in India

By Gopika G and Debangshi Biswas

Adoption, often trivialised as the process of taking in another’s child as one’s own, carries with it, larger legal implications. As defined by the Juvenile Justice Act of 2015 (JJ Act), the legislation governing adoptions in India, it is “the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to biological child”. This being said, the prevailing legal regime however fails to recognize the right of same-sex couples and queer individuals to adopt.

Judicial decisions over the past decade reflect a trend in favour of recognition and protection of the rights of sexual minorities, most notably with the recognition of the third gender and abrogation of Section 377. In a recent Supreme Court verdict concerning marriage equality, this progressive trajectory appears to have come to a halt, with the matter being redirected to Parliament. Although refusing a fundamental right to marriage, the Court acknowledged that queer couples were just as entitled to civil rights, which we argue should be inclusive of adoption. This acknowledgement, however, does not seem to have been transferred into practice.

Assumptions and Hesitations surrounding Queer Parenting

Adoption by queer couples is subject to far greater scrutiny as opposed to the heterosexual counterpart, owing to socially constructed and deeply entrenched notions of the ‘ideal’ marital family and home, as well as unfounded concerns about the welfare of the adopted child.

Social intolerance, aided by conservative thinking, runs rampant in India. The socially accepted and proliferated idea of family is a heteronormative one – composing mother, father, and child. Operating within this binary of ‘mother-father’, it is difficult to imagine ‘two mothers’ or ‘two fathers’ raising a child.

Common prevailing assumptions concerning children adopted by queer couples include worries regarding their parenting abilities, and its consequent psychological and social impact on the child.

The stigma begins prior to the actual adoption of the child and continues throughout the child’s upbringing. One such assumption is that for a child to develop appropriately, have proper morals and values, and to be socially accepted, it needs to be raised by a female mother and male father. This however, has been disproved time and again. Even before consulting statistical data, the very JJ Act in itself makes provisions for single parents to adopt children in their individual capacity showcasing the legislative assumption of absence of one parental figure in raising children rendering no differential outcome. Extensive research has been conducted as to whether the sexual orientation of parents have any impact on the outcomes of their child. For instance, Prof. Farr, in her longitudinal study, comparing outcomes of children with same-sex parents against those with heterosexual ones at two critical time points, during pre-school and middle childhood, emphasizes through the findings, that family processes are more important than family structure for child development outcomes and overall family functioning, a view consistent with other scholarly research on this field. Research and analysis by BMJ Global Health on disparities in family outcomes between homosexual and heterosexual relationships conclude that the former portrayed more supportive and loving relationships between parent and child.

Furthermore, several statistics consulted in a decade long study by the Medical Journal of Australia, reveal how a 2010 meta-analysis of gender and sexuality intersecting with child wellbeing, a 2014 review by the American Sociological Association of over 40 studies on children raised by same-sex couples, and a 2016 fact sheet of the 2013 review by the Australian Institute of Family Studies, all derive the same conclusion on how there is no differing effect on a child’s emotional, social, behavioural and cognitive functioning and development, by virtue of the sexuality of the parents involved in their upbringing. Similarly, there is prevalence of the belief that a child placed in the hands of a queer family, will turn out queer themselves; that placing a child with a homosexual parent affects the child’s sexual orientation. Sexual orientation remains a unique aspect of one’s identity, regardless of upbringing and environment.

Homosexuality is as much ingrained, inherent and innate to one’s person, as heterosexuality; most people experience little or no sense of choice with regards to their sexual orientation; it is natural, not artificially implemented or imposed. Moreover, there is a plethora of research, confuting this belief. Prof. Schumm and Prof. Crawford, in their assessment of contemporary literature reviews pertaining to LGBTQ+ parenting, reaffirmed the observation that children of same-sex parents are no more likely to identify as LGBTQ+, than those of heterosexual parents. This was in conformation with previous research on how outcomes of children raised by parents of different sexual orientations were seen to have ‘no difference’. Next, the notion that a child raised by such a union would be subject to stigmatization and social ostracization by virtue of their parentage raises a larger issue with society rather than with samesex couples. Societal perceptions create such stigmas and abandoning the need for traditional parental roles of a ‘female’ mother and ‘male’ father. Educating children about diverse unions and not discriminating against children basis their parents’ sexual orientations, would instead serve as a countermeasure to the same. Ultimately, the hesitation towards placing children with homosexual couples boils down to the traditional notion of a family. Homosexual couples are precluded by marriage restrictions from adopting and starting a family in the traditional sense, thereby making it more preferable to entrust a child to a heterosexual couple.

While the pool of prospective parents is continuously restricted, the number of children requiring homes and families is ever-increasing, as many helpless youngsters languish in institutional care, further aggravated by the exhaustive adoption procedure. Limiting the number of prospective caring homes directly contradicts the best interest of these children and further strains the overworked adoption system. Moreover, alternate means of raising a child, such as through IVF or surrogacy, may not be physically or economically feasible for same-sex couples, leaving adoption as their most viable option as a family.

On the Field: In Conversation with Indian Adoption Authorities

In our telephonic conversations with officers from both Central and State Adoption Resource Authorities (CARA & SARA), it was revealed to us how deeply entrenched heteronormative assumptions remain within India’s adoption process. The officials explained to us a process undertaken mandatorily as part of evaluation called the “home study” to check parents’ social as well as psychological stability, and implied that queer couples were automatically ineligible due to the absence of marriage recognition. CARA stated a “lack of stability” in same-sex relationships, while SARA deferred discussing such cases entirely. Although the JJ Act’s gender neutral language seems to welcome all prospective parents, the officials mentioned that gender disclosure is mandatory, effectively nullifying any scope of inclusivity. These interactions highlight how bureaucratic attitudes, rooted in traditional notions of family, continue to impede legal equality. In this slow evolution of family law, diverse identities are yet to be accommodated.

However, social change is gradual, and one would like to believe it is underway. A recent survey showed that 56% urban Indians admitted to viewing homosexuality differently from five years ago. Furthermore, 66% of the respondents believe same-sex couples should have the right to adopt children and almost 62% trust in the ability of same-sex couples to raise children as competently as heterosexual couples.

Concluding Thoughts

Legal recognition of same-sex unions and/or the granting of adoption rights is conducive to family stability and security. This would guarantee rights and benefits in the best interest of the child, at both central and state levels. It would deter same-sex couples from resorting to informal or illegal means of raising children. The tangible benefits flowing from legal family ties are numerous, encompassing several important financial and material benefits in the interest of the child. Non-legal parents lack power of attorney for their child in educational and healthcare contexts, essentially impairing them from representing or accompanying their child in pertinent situations.

Society should move beyond the traditional heterosexual conjugal family model and instead recognize non-normative relationships. Although single parents can legally adopt, primacy is given to heterosexual individuals over queers, since theoretically, the former could marry and create a legally recognized family. Only if a homosexual married someone of the opposite sex, choosing to be incongruent with their sexual orientation, could they create a traditional family unit. Thus, queer individuals are theoretically only capable of adopting in their individual capacity – a provision that bears no fruit in practice.

To impose archaic heteronormative standards on adoption deprives both the child and the parent of a chance at starting or being part of a family. The State has a constitutional mandate to guarantee formal and substantive equality to everyone under Articles 14 and 15 of the Indian Constitution, irrespective of their personal characteristics, including their sexual orientation. Denying a couple the right to adopt and determining their parental capacity simply on the grounds of their sexual orientation is discriminatory and violative of constitutional guarantees, as well as principles of natural justice. Such classification is arbitrary and baseless, lacking any intelligible differentia or rational nexus to the objective sought to be achieved. It is instead a classification premised upon stereotypes, a skewed sense of morality, and social prejudice, owing to which, thousands of children in need of a loving home are repeatedly denied their chance at joining a family. When confronted with a process as sensitive as adoption, which affects the rights of an unsuspecting child and allows them a chance to enter a loving home, the State must reconsider its restrictions pertaining to who can adopt and instead welcome all prospective parents.

Key Words: Adoption, LGBTQ+ Rights, Queer Parenting, Family Law