Shivangi Pandia, Content Writer, Nyayshastram

Introduction

Should an individual be denied the right of becoming a parent and of adopting a child merely because his gender identity is ‘deviant’ according to society? The ‘religious extremist’ behaviour of the society against the LGBTQ community has caused them to be discriminated against and immune to stereotypical gazes for a long time now, and it is still continuing. People all around the world have been vying for their recognition and equal rights; but is that enough? We gave recognition to them, we made a law to secure their rights; but the law is ambiguous when it comes to adoption rights, and there is no other ancillary law or provision providing them with this right. This situation puts them at the vulnerable end with no provision to their rescue; they have been left hanging out to dry when it comes to the protection of their gender identity and the right to starting a family. It is even more sexist and unfortunate that our laws have been failing to recognize their legal rights over the adoption of a child. It is like placing a novice at the wheel of the ship without telling him how to go about it. Further regulation through enactments and amendments is a must; otherwise, the idea of having a Constitution that vouches for equality and freedom to all is a moot point.

What are Parental Rights?

Parenting rights can be said to be out-turn of the right to marry. India has been a country where the society and the culture have accepted and even promoted the union of two souls by marriage. Marriage has been, in our culture, represented as the ideal institution of connection and commitment, and a legally and socially accepted way to start a family and raise children. The social status that is conferred by marriage is as important to same-sex couples as it is to heterosexual couples.[1] Many same-sex couples, and of other genders, wish to marry simply because they have been a part of this culture and this society and thus, via marriage, they wish to start their own family further.

As far as parenting rights go, we have the Hindu Adoptions and Maintenance Act, 1956, which is though commendable legislation. However, it lacks righteousness since it does not provide an equivalent right of parenthood to the LGBTQ+ community. We also have the Guardians and Wards Act, 1890, which also does not provide equal rights of parenthood to this community.[2]

There has been much advancement in the parenting regime; we have access to Assisted Reproductive Technology (ART), we have the option of biological children, we have donor arrangements, we have the option of surrogacy, and much more. All this proves that the straight counterparts of the LGBTQ community do not have to face as complicated legal landscapes as by them.[3] The argument is that if two people want to make a commitment to marriage and raise a family, then they should be permitted to do so, notwithstanding their gender identity. Excluding one class of citizens from such rights demeans them and insults their dignity.[4] Even the Supreme Court of United States in its judgment of Obergefell v. Hodges ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th amendment to the United States Constitution.[5] The European Court of Human Rights has also, through its innumerable cases, upheld the humane rights of same-sex couples.

Since all this has always been provided to the heterosexual couples and since now “consensual sexual conduct between adults of the same sex” has been legalized[6], there seems to be no legit reason in denying the right to parenthood and to adopting children. There have been many incidents where members of the LGBTQ community have been known to marry amongst each other,[7] thus, yet again reiterated that there seems no legit reason in denying parental rights to the LGBTQ Community. Also, the issue will not be solved by just legalizing LGBTQ parenthood; due enactments have to be had in order to safeguard these rights and provide them with a doorway that leads to access to this right.

How is the Law Discriminatory?

The Indian adoption regime does not confer equal marriage rights and responsibilities to the LGBTQ+ community that are otherwise provided to the heterosexual counterparts. Marriage has two facets, firstly; it is an ideal institution of connection and commitment, secondly; there are various rights and responsibilities associated with marriage, like the maintenance of the spouse, inheritance rights and, primarily under consideration here: adoption.

In heterosexual marriages, the debate for adoption rights is settled as such ‘rights and responsibilities’ come with the package of ‘being a heterosexual’. However, the same is not the truth in case of marriage amongst the LGBTQ fraternity.[8] Though there have been debates going on for years and the communities, have been individually addressing their issues, but sadly there is no law in the country that comes to the rescue of the LGBTQ community.

The new Surrogacy Bill[9] has also not taken the LGBTQ community under its ambit. The bill was introduced in order to prevent the exploitation of the surrogate mother and child. The bill allows for the commercialization of surrogacy and extends the right to exercise it to the married heterosexual couples only, disqualifying other individuals belonging to the LGBTQ+ community because of their sexual orientation and ‘unrecognized’ marital status.

Legal Framework

Many countries allow same-sex adoption without any discrimination.[10] It has been recognized that children around the world can be benefitted if countries legally recognized same-sex marriages and parenting.[11] The European Court of Human Rights (ECHR) protects the right not to be discriminated against on the basis of sex.[12] The Best Interest of the Child Standard, adopted by UNICEF, also frowns upon the legal regimes that discriminate on the basis of sex.[13] Even the United Nations recognizes that discrimination based on sexual orientation or gender identity is against the international regime of human rights.[14] It is also a tenet of the UDHR, the right to equality and non-discrimination. The opening words of the UDHR are unequivocal: “All human beings are born free and equal in dignity and rights.”

As far as the Indian Legal regime goes, the discrimination against the LGBTQ community owing to their gender identity and sexual orientation is obvious from the many enactments, including the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, and even the Special Marriage Act, 1954 and the Hindu Minority and Guardianship Act, 1956. Even the Bench book for adoptions by the Central Adoption Resource Authority, the statutory body of the Ministry of Women & Child Development, does not mention the rights of the LGBTQ community.[15] The Transgender Persons (Protection of Rights) Act, 2019, which was enacted in a bid to recognize their rights, somehow skips the part which [could] provide them with parenting rights. The rights of this community have though been demarcated but yet not been incorporated into these legislations, which is important in a country like India where contradicting the age-old customary practices, that stigmatize against the third genders, is not so easy.

The Supreme Court, in its neoteric endeavour, to become the guardian of equality, through its judgment in NALSA[16] declared transgender people to be a third gender, and has affirmed that they are granted the fundamental rights under the Constitution. Even the case in Navtej Singh Johar[17] was a major step towards recognizing the same consensual sex as ‘not-criminal’. Though these judgments are a major step towards gender equality in India, they are only intelligible to those who can read, and a majority of the nation still considers this community as taboo. It will not be willing to recognize them and their rights so easily.

The Ensuing Struggle

Recently a gay couple from Thrissur has moved the Kerala High Court challenging the provisions of Special Marriage Act, 1954, in order to get permission to register their marriage. The Special Marriage Act, though quite futuristic in allowing inter-religion marriages, lacks righteousness in not allowing same-sex marriages. The taboo pertaining to marriage in the LGBTQ community has been well engraved in the Indian mindset. Even though the stats of adoption let along with adoption by LGBTQ couples, are ridiculously shaming.[18] As per UNICEF, there are about 29.6 million orphaned and abandoned children in India. With such a high number of children whose future and rightful consideration is at stake, the non-approval of adoption by the LGBTQ community adds to the misery.[19]

Fighting their battle against the archaic ideology pertaining to LGBTQ rights, Nikesh and Sonu are aware that there are about 30 countries that have enacted national legislation allowing homosexual people to marry. Despite the increasing universal acceptance of same-sex marriage and other LGBTQ rights, homosexual couples in India do not have any legal rights such as registration of marriage, inheritance, succession, and adoption, maintenance of the spouse and children, and guardianship among others.[20]

The decriminalization of Section 377 has not yet ensured equal rights of marriage to the LGBTQ+ community. This is not enough; without a law to provide for the protection of and legality to such processes, it is difficult to get married in an LGBTQ+ community.

Conclusion

The Constitution of India in its Article 14 ensures a ‘right’ to equality to all without any discrimination of any form. Further, the Constitution and the Supreme Courts have kept equity at a higher pedestal than equality. We have special legislation for protecting the rights of women, people belonging to Scheduled Castes and Scheduled Tribes, the aged and the elderly, children, and many more. We have been successful in putting an end to many archaic forms of social discrimination such as the sati pratha, allowing widow-remarriage, inter alia. Nevertheless, with all this wisdom being imparted into our minds and conscience, and with a majority of the world recognizing the rights of the LGBTQ community, why is it not possible for us to fathom that, after all, the LGBTQ community comprises of humans, who have been bestowed with equal rights and protection thereof at the international level. Though many people accept and acknowledge that this community has equal rights. However, in order for these rights to be made accessible to them, it is pertinent for the government to enact laws that safeguard these rights for them. With the Constitution of India and the whole international community, being completely against any form of discrimination, there seems to be no legit reason why these communities should be denied an equal right as those available to the heterosexual community. The taboo pertaining to the LGBTQ community has to be eradicated, for despite giving equal rights to humans, we are still discriminating them on the basis of their sexual orientation and gender identity, which is not at all the idea of equality. Choosing a partner is a fundamental right recognized by the Supreme Court in Shakti Vahini,[21] and there is no reason for not extending it to the homosexual couples – apart from the blind prejudice and lack of understanding of the homosexual community.

[1] Jeffrey A. Redding, Queer Theory – Law, Culture and Empire, Robert Leckey & Kim Brooks Eds., Glass House Book (2010). [2] Animesh Upadhyay & Aakash Kumar, International Transgender Parenting Rights and How India lags behind it, Legal Services India (2020), http://www.legalserviceindia.com/legal/article-1878-international-transgender-parenting-rights-and-how-india-lags-behind-it.html. [3] David Dodge, Legal Basics for LGBTQ Parents, The New York Times (2020), https://www.nytimes.com/article/legal-basics-for-lgbtq-parents.html. [4] Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, Dissent Magazine (2009), https://www.dissentmagazine.org/article/a-right-to-marry-same-sex-marriage-and-constitutional-law. [5] 576 U.S. 644. [6] Navtej Singh Johar v. Union of India, W.P. (Cri.) No. 76 of 2016. [7] Vikram Doctor, A Civil Contract: Same Sex relationships and marriage, The Economic Times (2020), https://economictimes.indiatimes.com/industry/media/entertainment/a-civil-contract-same-sex-relationships-and-marriage/articleshow/74408022.cms?from=mdr. [8] Jessica E. Brown, International Human Rights Law and Same-Sex Marriage, Fl. J. Int. L. (2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988145. [9] The Surrogacy (Regulation) Bill, 2019, Ministry of Health and Family Welfare (2019), https://www.prsindia.org/sites/default/files/bill_files/Bill%20text%20as%20passed%20by%20LS-%20Surrogacy%20bill%2C%202019.pdf. [10] LGBT International Adoption: Is it Possible?, Considering Adoption, https://consideringadoption.com/adopting/can-same-sex-couples-adopt/international-gay-adoption. [11] Elizabeth Burleson, International Human Rights Law, Co-parent Adoption, and the Recognition of Gay and Lesian Families, 55 Loy. L. Rev. 791 (2009), https://core.ac.uk/download/pdf/46714073.pdf. [12] European Convention on Human Rights, Council of Europe, https://www.echr.coe.int/Documents/Convention_ENG.pdf. [13] UNICEF, UNICEF’s Position on Inter-Country Adoption, https://core.ac.uk/download/pdf/46714073.pdf. [14] International Human Rights Law and Sexual Orientation & Gender Identity, UN Human Rights (2017), https://www.unfe.org/wp-content/uploads/2017/05/International-Human-Rights-Law.pdf. [15] Bench Book for Adoptions, Central Adoptions Resources Authority, http://cara.nic.in/PDF/Bench%20Book%20For%20Adoptions.pdf. [16] National Legal Services Authority v. Union of India, W.P. (Civil) No. 400 of 2012. [17] Navtej Singh Johar v. Union of India, W.P. (Cri.) No. 76 of 2016. [18] Prashasti Awasthi Awasthi, India’s Adoption Policy discriminative against LGBTQIA+, 20 million kid remain without family, The Logical Indian (2019), https://thelogicalindian.com/exclusive/adoption-policy-discriminative-against-lqbtqia/. [19] Shreya Kalra, Why India’s adoption rate is abysmal despite its 30 million abandoned kids, Business Standard (2018), https://www.business-standard.com/article/current-affairs/why-india-s-adoption-rate-is-abysmal-despite-its-30-million-abandoned-kids-118103000218_1.html#:~:text=According%20to%20United%20Nations%20Children's,million%20orphaned%20and%20abandoned%20children.. [20] Nishant Sirohi, LGBTQ+: Petition for marriage equality filed in Kerala High Court, The Leaflet (2020), http://theleaflet.in/lgbtq-petition-for-marriage-equality-filed-in-kerala-high-court-2/. [21] Shakti Vahini v. Union of India, W. P. (Civil) No. 231 of 2010.