Same-Sex Couples Denied Right To Adopt, But Single Homosexuals Can: What India's Adoption Laws Say

In the case of same-sex marriages in India, the Supreme Court, on October 17, 2023, delivered a 3:2 split verdict stating that there cannot be legal recognition for same-sex marriages and left policy matters to the legislature.

The verdict also stated that non-heterosexual couples cannot be granted the right to adopt jointly.

This verdict on adoption confused many and brought up once more the contradiction in Indian laws, which allow single individuals (which may include gay individuals) to adopt a child, but the same right is not allowed for gay couples.

Which is the body that regulates adoption in India?

Adoption in India is regulated by the Central Adoption Resource Authority (CARA), a statutory body of Ministry of Women & Child Development, Government of India.

CARA is mandated to monitor and regulate in-country and inter-country adoptions and primarily deals with adoption of orphan, abandoned and surrendered children through its associated/ recognised adoption agencies.

Central Adoption Resource Authority/ X

It is the CARA that lays down the rules for adopting children in India.

What is the eligibility to legally adopt a child in India?

Three acts govern adoption in India: The Hindu Adoption and Maintenance Act, 1956; The Guardianship and Wards Act, 1980; The Juvenile Justice (Care and Protection of Children) Act, 2000.

While there are many criteria that prospective adoptive parents must comply with in order to be eligible for adopting a child in India legally, the specific criterias that are important in light of the same-sex verdict are:

- A single female is eligible to adopt a male or female child.

- A single male is not eligible to adopt a female child.

- In the case of a couple adopting, the consent of both partners is necessary. Also, they should have completed at least two years of a stable marital relationship.

Central Adoption Resource Authority/ X

The current legal framework in India thus does not explicitly permit or prohibit homosexual couples from adopting children but includes such provisions that exclude them from adopting since same-sex marriage itself is not recognised.

What did the SC same-sex verdict say on adoption by same-sex couples?

The Supreme Court, in its same-sex verdict in October 2023, refused to grant gay couples the right to adopt.

However, the Chief Justice of India (CJI) DY Chandrachud stated that regulation 5(3) of CARA states that - "No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption" - discriminates between partners in atypical unions.

He added that while the law does not specifically exclude unmarried couples from adopting, this particular regulation prevents them by stating the couple must be in a stable marital relationship for 2 years.

Justice SK Kaul supported Chadrachud in this view, saying that gay and unmarried couples should be given adoption rights. But the other three judges ¨C justices Ravindra Bhat, Hima Kohli, and PS Narasimha ¨C disagreed with the decision.

How do child welfare bodies in India view adoption by same-sex couples?

The National Commission for Protection of Child Rights (NCPCR) is India's apex body for safeguarding children's rights, established under the Commission for Protection of Child Rights Act, 2005.

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The NCPCR had opposed adoption rights of same-sex couples, arguing that children raised by same-sex parents may have a limited exposure to the traditional gender role models.

On the other hand, the Delhi Commission for Protection of Child Rights (DCPCR), the statutory watchdog of the Government of Delhi on matters of child rights, had supported legalisation of same-sex marriages and conferred adoption and succession rights for same-sex couples.

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