Sandeep (name changed) is a 35-year-old, Hindu, gay man in a stable relationship and a job. He desperately wants to become a parent and has the support of his parents and partner in raising a child. However, with the recent marriage equality verdict, where the Supreme Court denied LGBTQIA+ individuals the right to marriage, Sandeep cannot adopt unless he conceals his gender identity from agencies and adopts as a single, heterosexual, cis-gendered person. While single people can adopt in India, there are some restrictions — single men cannot adopt female children. While the number of single women adopting has risen, for LGBTQIA+ couples, there is limited social support or legally enshrined rights to adopt.
In April, against the backdrop of the marriage equality petitions, the National Commission for Protection of Child Rights claimed, without any scientific evidence, that allowing same-sex couples to adopt would endanger the psychological safety and well-being of children. In response, the Delhi Commission for Protection of Child Rights (DCPCR) and the Indian Psychiatric Association argued that disallowing same-sex couples the right to adopt is a violation of children’s rights to a family and queer people’s rights to have a family.
The argument that children raised in same-sex families experience stigma and discrimination has more to do with the treatment of such children than the home environment. In a recent online poll I conducted with a self-selecting group of adoptive and potential parents, 94 per cent of 91 parents voted to support the rights of LGBTQIA+ families to adopt. A few are worried about the social stigma for children in queer families, considering adopted children already face a high burden of stigma in a country where biological ties are still prized.
Evidence from the Netherlands, the first country to legalise same-sex marriages, found that children, both biological and adopted, raised in same-sex families perform better educationally than children raised by heterosexual parents. The researchers conjectured that this may be due to the higher age, education, and incomes of these families.
This scenario is also likely among those LGBTQIA+ parents seeking to adopt in India. The process is long, expensive, requires immense patience, and jumping through multiple bureaucratic hoops. Given these constraints, adoptive parents face a much higher burden of scrutiny in terms of their ability to raise a child than biological parents.
According to recent figures from the Central Adoption Resource Agency (CARA), in 2021-2022, there were 2,991 in-country and 414 inter-country adoptions. During the same period, 9,263 home studies were conducted by CARA-associated agencies. Home studies, where social workers visit prospective parents’ homes to assess their suitability to become a parent (based on income, physical and mental health, conflict resolution abilities, and other parameters), are critical eligibility steps. The disparity between the numbers adopted and the home study reports is indicative of the number of parents who are waiting to adopt and children declared free for adoption.
For the marriage equality petitions, CARA was asked to furnish statistics on adoption — it reported that there were over 30,477 prospective parents (April 2023), of which 94 per cent were heterosexual couples. Of the 2,131 children legally free to be adopted, two-thirds were children classified as “special needs”, constituting a range of mental and physical health conditions; over half of these were girls. Of the remaining children, there were only 185 in the preferred 0-2 years age group, further reinforcing the disparities between the numbers of available children and prospective adoptive parents.
In a country with so many orphaned and destitute children, why do so few formally enter the system? The process for declaring a child free for adoption is thorough but time-consuming. When biological mothers surrender a child to a recognised agency, the process is relatively straightforward since no legal claims are expected. However, when children are abandoned, the state makes a serious attempt to trace the child’s biological family through various means. If these efforts do not result in a claimant, only then can a child welfare committee declare them free for adoption. The child of an institutionalised or incarcerated parent cannot be declared free for adoption, even if the parent is unlikely to return.
While these processes should not be weakened, they do need to be sped up so that children do not spend a long time languishing in overcrowded institutions. Secondly, there must be a formal and robust fostering system so that children can be placed in a caring family, especially if their parents are unlikely to return from institutions. Thirdly, every individual who wants to nurture a child and be a parent should be given that chance, regardless of their sexual orientation or gender identity.
Every child has a right to a family and every family or individual that wants to nurture a child should equally have the right to parent one.
The writer is a parent through adoption and an Associate Professor at FLAME University, Pune. She thanks Abha Rao for her suggestions
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