International Transgender Parenting Rights: Indian Context


The Authors are Animesh Upadhyay Aakash Kumar, who are pursuing their B.A. LL.B. (Hons.) currently in their 4th year of study, from Dr. Ram Manohar Lohiya National Law University, Lucknow. 

There has been a long debate about whether the Parenting Rights should be given to LGBTQ Community or not. LGBTQ Community, which still in the times of modernization, is considered as backward and are still fighting for their rights. Various Jurisdictions have enacted various laws for protection of rights of people belonging to this community. But only few countries have enacted such laws that guarantee parenting rights to LGBTQ Community. People belonging to LGBTQ community still struggle for acquiring parenting rights legally due to the widespread ignorance of their sexual identity, sexual preference and the incommunicable complexities inherent in transitioning.

Parenting refers to intricacies of raising a child not exclusively for a biological relationship. Biology is not always the determining factor for finding who are the legal parents. For determination of psychological parent, biology is not the only factor. American Civil Liberties Union conducted a research in which it found out no evidence that suggests that people from LGTBQ community are unfit to raise a child, rather it is more likely for a child to grow up with good values and such parenting helps in child’s development as those with heterosexual parents. Good Parenting is influenced by parent’s ability to take a good care and impart good values to a child, parenting has nothing to do with sexual orientation.

Indian Scenario
 India recently introduced Transgender Bill, 2019 so as to safeguard the social rights to the people from the Transgender community. But the bill is not met by the community in a welcoming way as the bill has been hastily drafted. The Bill has many lacunas in it and has failed to cover essential needs of the community one of which is to provide the Transgender Community the Adoption Rights. In fact, The Bill does not even provide for an appropriate mechanism to determine one’s gender, it provides a person to go through proper screening by District Magistrate, Chief Medical Officer and Psychologist under Section 7 for issue of certificate to identify him as transgender after the application is made under Section 5 by the person to the District Magistrate. This is a very time consuming and a dehumanizing process because identifying the gender of a person based on his physical traits is not correct. Justice Radhakrishnan in National Legal Services Authority v. Union of India elaborated the principle of self-identification and said “Gender identity lies at the core of one’s personal identity, gender expression and presentation and therefore, it will have to be protected under Article 19(1)(a) of the Constitution. A transgender person’s personality could be expressed by his behaviour and presentation. State cannot prohibit, restrict or interfere with their expression of such personality, which reflects that inherent personality.” The procedure provided by the Bill to identify a person’s gender deviates from what was said in the NALSA Judgment.

India is one such country that is still developing its society to accept people from LGBTQ community. Various steps that have been taken in the Country, including the Landmark Judgment of Navtej Johar in which the Constitutional Bench of Supreme Court strike down Section 377 of Indian Penal Code which criminalized homosexuality. But in today’s world India still lags behind when it comes to granting certain rights such as adoption and parenting rights. Although India has taken steps for serving justice to the LGBTQ community but granting parenting and adoption rights to the people of this community is very important. In India, adoption laws are governed by the Hindu Adoption and Maintenance Act, 1956 which provides for the mechanism and procedure for adopting a child in India by any Hindu , which till date is silent when it comes to the adoption by same sex couples. Section 8 of the act states that an unmarried female can adopt a child but according to Section 7 of the Act a male can only adopt if he has a ‘wife living’.
Personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in 'guardianship' under the provisions of The Guardian and Wards Act, 1890, Even this act does not talk about adoption rights to LGBTQ community.

As said by Justice KS Radhakrishnan, "The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender”. The Supreme Court has already recognized LGBTQ community as the third gender. The dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, Now is the high time they should be treated as the third gender in real sense by giving them all those benefits which the other two genders have.

Global Scenario
Parenting Rights to people belonging to LGBTQ community have been granted in many countries.  In Sweden, discrimination on the basis of sexual orientation and gender identity and expression has been banned since 1987. Gay and lesbian couples can adopt children since 2003 and lesbian couples have had equal access to IVF and assisted insemination since 2005. South Africa is one such country and the only African Country which has allowed joint adoption by the same sex couples. After the case of Du Toit v Minister of Welfare and Population Development the Constitutional Court Amended the Child Care Act, 1983 and enacted Children’s Act, 2005 that enables same sex couple to adopt a child. Similarly, in England The Adoption and Children Act, 2002 enabled the unmarried same sex couples to adopt a child. For adopting child, the couple just needs to prove that they are living together and just need to show that they are having an enduring relationship.

Concluding Remarks:
 The community has faced hardships for a very long time from discrimination and ignorance in the traditionally conservative country. Presently, there are no laws in the country which talks about adoption and parenting rights to the LGBTQ community. India as a country is in a ‘knee point’ regarding LGBT child adoption rights, right now. It just needs a push in the right direction. Nothing is better than that push coming from the legal system of the country. It’s high time that the legislators need to make the relevant amendments in the Adoption Laws of the country.

In light of all the above-mentioned facts and arguments the Authors are of the opinion that anyone who is able to provide a child with a safe, secure and loving home should be able to adopt a child. As by not providing the Parenting Rights the Government is only depriving the Community of their personal liberty which they are entitled by the virtue of Article 21 of the Constitution. Therefore, personal laws should not remain confined to binary genders of the society there is need to bring Amendments in the time of modernization.