PROJECT REPORT ON

“Rights and challenges of the

LGBTQ+ community in
adoption and parenting”

University Institute of Legal Studies

Panjab University
Chandigarh

Submitted to: Submitted

by:

Prof. Nehmat Bajwa Udbhav

UILS B.A LL.B (H)
Panjab University Section B,
120/21

ACKNOWLEDGEMENT

I would like to convey my heartfelt gratitude to

Prof. Nehmat Bajwa for her tremendous
support and assistance in the completion of my
project. I would also like to thank you for
providing me with this wonderful opportunity to
work on a project with the topic “Rights and
challenges of the LGBTQ+ community in
adoption and parenting”. The completion of
the project would not have been possible without
your help and insights.
I would like to express my special thanks to our
mentor Mrs. Nehmat Bajwa for the time and
efforts she provided throughout the semester.
Your useful advice and suggestions were really
helpful to me during the project’s completion. In
this aspect, I am eternally grateful to you.
I would like to acknowledge that this project was
completed entirely by me and not by someone
else.

Udbhav
 B.A LL.B (H)
Semester 5th
Section B
120/21
INTRODUCTION

The LGBTQ+ community, also known as the

LGBTQ+ or LGBTQIA+ (Lesbian, Gay, Bisexual,
Transgender, Queer/Questioning, Intersex,
Asexual/Ally, and other identities) community, is
a diverse group of people who identify as lesbian,
gay, bisexual, transgender, queer, or with any
other non-heteronormative sexual orientation or
gender identity. This community is characterized
by its inclusivity and support for individuals who
do not conform to traditional heterosexual and
cisgender norms.
Key components of the LGBTQ+ community
include:

1.Lesbian: Women who are attracted to other

women.
2.Gay: Men who are attracted to other men.
This term is also used as a general term to
refer to all individuals attracted to the same
sex.
3.Bisexual: People who are attracted to both
their own gender and other genders.
4.Transgender: Individuals whose gender
identity differs from the sex assigned to them
at birth. They may identify as a different
gender, such as a trans man (assigned
female at birth but identifies as a man) or a
trans woman (assigned male at birth but
identifies as a woman).
5.Queer: An umbrella term that can encompass
various non-heteronormative sexual
orientations and gender identities. Some
people use this term to describe themselves
when other labels don't feel quite right.
6.Questioning: People who are unsure about
their sexual orientation or gender identity
and are exploring their feelings and identity.
7.Intersex: Individuals who are born with
variations in their physical sex characteristics
that do not fit typical definitions of male or
female.
 8.Asexual: People who experience little or no
sexual attraction to others. Allies are
supportive individuals who may not identify
as LGBTQ+ but actively support and
advocate for LGBTQ+ rights.

The LGBTQ+ community has a rich history of

activism, fighting for equal rights and
acceptance. Over the years, there have been
significant advancements in LGBTQ+ rights,
including legal recognition of same-sex marriage,
anti-discrimination laws, and greater visibility
and representation in society.

It's important to note that the LGBTQ+

community is not monolithic, and individuals
within this community may have different
experiences and challenges. The community is
built on the principles of respect, inclusivity, and
the belief that everyone should have the right to
love who they choose and express their gender
identity freely. Support and acceptance of
LGBTQ+ individuals are essential in fostering a
more inclusive and diverse society.
 Brief history of LGBTQ+
community

The history of the LGBTQ+ community is a

complex and diverse story that has evolved over
centuries. It involves the struggles,
achievements, and milestones of individuals and
movements seeking recognition, acceptance, and
equal rights. Here is a brief overview of the
history of the LGBTQ+ community:

1.Ancient History: Same-sex relationships and

gender diversity have been a part of human
history since ancient times. In some cultures,
such as ancient Greece and Rome, same-sex
relationships were accepted and celebrated.
Other cultures, such as many Indigenous
societies, had recognized two-spirit or similar
gender roles.
2.Early Activism: The modern LGBTQ+ rights
movement began to take shape in the late
19th and early 20th centuries. The early
activism primarily focused on issues related
to sexuality, with organizations and
individuals advocating for greater
understanding and acceptance.

3.The Stonewall Riots: One of the most

significant events in LGBTQ+ history
occurred in June 1969 when patrons of the
Stonewall Inn, a gay bar in New York City,
resisted a police raid. The ensuing protests,
known as the Stonewall Riots, are considered
a catalyst for the modern LGBTQ+ rights
movement.

4.The Birth of Pride: In June 1970, the first

Pride parades were organized in various
cities to commemorate the Stonewall Riots
and celebrate LGBTQ+ identity. Pride events
have since become annual celebrations
worldwide, fostering visibility and solidarity
within the community.

5.Legal Advances: Throughout the late 20th

century and early 21st century, there were
numerous legal advances for LGBTQ+ rights.
 These included the decriminalization of
homosexuality, anti-discrimination laws, and,
in some countries, the legalization of same-
sex marriage.

6.Transgender Rights: The struggle for

transgender rights and recognition has been
a prominent part of the LGBTQ+ movement.
Efforts to combat discrimination and violence
against transgender individuals have gained
momentum in recent years.

7.International Progress: The LGBTQ+ rights

movement is a global phenomenon, with
progress and setbacks occurring in different
parts of the world. Some countries have
made significant strides in recognizing
LGBTQ+ rights, while others continue to
criminalize or discriminate against LGBTQ+
individuals.

8.Ongoing Struggles: Despite many victories,

challenges remain. Discrimination, violence,
and stigma against LGBTQ+ individuals
continue to be issues in various parts of the
world. Activism and advocacy are ongoing
efforts to address these challenges.
The history of the LGBTQ+ community is marked
by a continuous fight for recognition, equal
rights, and acceptance. It reflects the resilience
and strength of individuals who have worked to
make a more inclusive and diverse society for all.
While significant progress has been made, there
is still work to be done to achieve full equality
and acceptance for LGBTQ+ people around the
world.

LGBTQ+ rights
Why They
Matter
Imagine having a
secret so terrrible
that if you were to
tell it to the
society, the
society would abandon you.
It is a fight to be recognised as normal as well as
a fight to be allowed to live and love and be
loved without the state watching and judging.
In recent times, there has been a lot of
discussion about how the role of government
should be limited to governing instead of telling
how people live their lives.
Section 377 of IPC is a legal provision that allows
authorities to interfere with the way an Indian
citizen lives his or her life. By saying that people
of the LGBTQ+ community somehow against
society and order of nature, section 377 makes it
legal for them to be treated differently by the law
and the society.
However In September, 2018, a five-judge bench
of the Supreme Court unanimously
decriminalized consensual sex between two
adults irrespective of their gender and partially
struck down Section 377 of the IPC. The court
also noted that Section 377 was used as a
weapon to harass members of the LGBTQ
community, resulting in their discrimination.

When one individual’s freedom’s are

violated, everyone’s rights are threatened.
If we allow the state to discriminate against
citizens on the basis of their sexual orientation
we are basically paving the way for the state to
discriminate on other fronts too.
LGBTQ+ rights are everyone’s rights.

ADOPTION AND
PARENTING RIGHTS

Adoption by LGBTQ+ individuals and couples

is a topic of growing importance and acceptance
in many countries. LGBTQ+ people have the
same
Legal rights to adopt as anyone else, and their
ability to provide loving and stable homes for
Children have been recognized by numerous
courts, organizations, and governments.

Best Interests of the Child: The primary focus

of adoption agencies and family courts is the best
interests of the child. Agencies assess
prospective parents' ability to provide a loving,
stable, and nurturing home. Numerous studies
have shown that LGBTQ+ parents are as capable
of providing these qualities as heterosexual
parents.
Foster Care and Adoption Agencies: Many
foster care and adoption agencies are now
LGBTQ+ affirming and work to recruit and
support LGBTQ+ individuals and couples who
wish to become adoptive parents.
Joint Adoption and Second-Parent Adoption:
In cases where a same-sex couple wishes to
adopt, some jurisdictions permit joint adoption,
allowing both partners to be legal parents of the
adopted child from the beginning. In other cases,
second-parent adoption may be necessary, which
legally establishes both partners as parents.
The Child's Perspective: Research and
anecdotal evidence have shown that children
adopted by LGBTQ+ parents fare as well as
children adopted by heterosexual parents in
terms of emotional, social, and psychological
well-being.

Situation in India

Adoption rights for LGBTQ+ individuals and

couples in India have seen significant changes
and improvements. India has made legal
advancements in recognizing the rights of
LGBTQ+ individuals, and these changes have
also had implications for adoption rights.
1.Decriminalization of Homosexuality: In
September 2018, India's Supreme Court
decriminalized homosexuality by striking
down Section 377 of the Indian Penal Code,
which criminalized consensual same-sex
relations. This was a landmark decision that
recognized the rights and dignity of LGBTQ+
individuals.
 2.Adoption Rights: The decriminalization of
homosexuality has had a positive impact on
adoption rights for LGBTQ+ individuals and
couples. The Juvenile Justice (Care and
Protection of Children) Act, 2015, which
governs adoption in India, does not explicitly
discriminate against LGBTQ+ individuals or
couples. Adoption agencies are expected to
focus on the best interests of the child in the
adoption process.

3.Supreme Court Rulings: The Indian Supreme

Court has issued several rulings emphasizing
that the sexual orientation or gender identity
of an individual should not be a barrier to
adopting a child, provided that the
prospective parents can provide a safe and
loving home.

No adoption rights for queer

people: Supreme Court in 3:2
verdict

The five-judge bench headed by CJI Chandrachud

differed on certain aspects of the same-sex
marriage verdict, especially on the applicability
of adoption rules for unmarried queer couples.
The Supreme Court of India, while pronouncing
its verdict on a series of petitions seeking
regularisation of same-sex marriage, denied
adoption rights to queer unmarried couples on
17th October 2023.

The five-judge bench passed a 3:2 verdict against

adoption rights for the LGBTQIA community.
While Chief Justice DY Chandrachud and Justice
Sanjay Kishan Kaul asserted that queer couples
should be given adoption rights, Justices
Ravindra Bhat, Hima Kohli, and PS Narasimha
disagreed.

"Law cannot assume that only heterosexual

couples can be good parents," Justice DY
Chandrachud observed while pronouncing the
verdict on same-sex marriage, adding that the
current "adoption regulations are violative
of the constitution for discrimination
against queer couples".

He said that the Central Adoption Resource

Authority (CARA) circular, which denies adoption
rights to queer couples, is "violative of Article
15 of the Constitution".
Justice Bhat, disagreeing with the CJI, said though
he agrees that unmarried queer couples can be
as good at parenting as heterosexual couples,
there are certain concerns that need to be
addressed.
"We voice certain concerns. This is not to
say that unmarried or non-heterosexual
couples can't be good parents... given the
objective of section 57, the State as parens
patriae has to explore all areas and to
ensure all benefits reach the children at
large in need of stable homes," Justice Bhat
said.

Justices Hima Kohli and PS Narasimha also

disagreed with CJI Chandrachud, leading to the
3:2 verdict.

Comparison to Other
Commonwealth Countries
In contrast, the rest have recognised the rights of
LGBTQ persons, and the right to a family is also a
recognised right.

In England, the Adoption and Children Act,

passed in November 2002,interpreted ‘couples’
as two people living as partners in an enduring
family relationship irrespective of their sex.

In Scotland, the Adoption and Children (Scotland)

Act 2007,received royal assent in January 2007,
allowing same-sex couples north of the border to
adopt children jointly. Finally, In 2013, Northern
Ireland laws got amended, allowing same-sex
couples to adopt, making it legal nationwide in
United Kingdoms.

If the country which per se introduced

these stringent laws in the first place can
adopt progressive legislation, why can’t
India?

Being one of the commonwealth countries,

Canada introduced its first provision in 1996,
allowing the adoption of children by same-sex
couples in British Columbia and later made it
prevalent in all provinces by 2011.

Many countries worldwide have circumvented

their archaic beliefs to provide their citizens with
the human rights they deserve. But considering
India’s situation, it looks like we have a long way
to go as even same-sex marriage isn’t yet
recognised.
What are the
challenges
faced by
LGBTQ+
community in
adoption and
parenting?

There are many misconceptions surrounding

adoption in general and LGBTQ adoption, in
particular that can prevent loving families from
realizing their dreams of parenthood. For
example, some people mistakenly believe that
same-sex parents will have a negative impact on
a child’s development or that children raised by
LGBTQ individuals are more likely to be LGBTQ
themselves. These beliefs are not backed up by
research and are simply untrue.

Another common misconception is that LGBTQ

individuals are not fit to be parents. This belief is
rooted in discrimination and bias against the
LGBTQ community and has no basis in reality.
Studies have shown that children raised by
LGBTQ parents are just as happy, healthy, and
well-adjusted as those raised by heterosexual
parents. In fact, LGBTQ individuals often face
additional scrutiny and barriers when trying to
adopt, which can make them even more
committed and dedicated parents.
Some of the major challenges faced by them are
as follows:

1. Discrimination and Bias: LGBTQ+ prospective

adoptive parents can encounter discrimination and
bias from adoption agencies, social workers, or
birth parents. Prejudices against LGBTQ+
individuals and couples may lead to delays or
denials in the adoption process.

2. Legal Hurdles: In some places, there may be legal

barriers to LGBTQ+ adoption, or there may be
ambiguities in the law. For example, in some
jurisdictions, same-sex couples may have to go
through second-parent adoption procedures to
secure both partners' parental rights.

3. Lack of Legal Protections: In regions without clear

legal protections for LGBTQ+ individuals or couples
in the adoption process, there may be uncertainty
or the potential for discrimination. It's important to
have robust legal protections to ensure fair
treatment in the adoption process.

4. Limited Access to Information: LGBTQ+ individuals

and couples may have limited access to
 information and resources on the adoption process,
which can make it more challenging for them to
navigate the system and find affirming agencies.

5. Fear of Stigma: Some LGBTQ+ individuals or

couples may fear that the adoption process will
expose them to societal stigma and prejudice. This
fear can be a significant deterrent to pursuing
adoption.

6. Family Rejection: In some cases, LGBTQ+

individuals may experience family rejection, which
can affect their ability to build a support network
during the adoption process.

7. Transracial and Transethnic Adoption: LGBTQ+

individuals and couples may be more open to
transracial and transethnic adoption, but this can
bring additional challenges, including addressing
potential biases and ensuring the child's cultural
and racial identity is respected.

8. Limited Representation: Children's literature,

media, and adoption agencies may not represent
diverse family structures, which can make it
challenging for LGBTQ+ adoptive parents to find
resources that reflect their family dynamics.

Laxmi Kant Pandey v. Union of India (1984)

In this case, the Court clearly recognized that “every
child has the right to a family”. This right could be
interpreted to incorporate the right to be adopted. In
addition, Article 39(f) requires the government to
formulate policies to ensure that children have
opportunities and facilities to develop in a healthy, free
and dignified way. Therefore, forcing a child to live in
an institution and depriving them of their right to family
is tantamount to depriving them of their freedom and
dignity in life, and therefore violates our national policy
guidelines. Also, in the case of the Indian Hotel and
Catering Association and Anr. Vs. In Maharashtra
(2019), people believe that the country cannot impose
its own moral values on society. Depriving a child to be
adopted by the LGBTQ+ community is equivalent to the
application by the state of its stereotypical morality.

Impediments to adoption by same-

sex couples

The Indian legislations create ambiguity by mentioning

that marital status is not considered when adopting a
child. However, this provision is applicable only for
single individuals who want to adopt a child and
whenever a couple wants to adopt jointly the law
mandates the marital relationship and consent of both
spouses. Since same-sex marriages are not legalized in
India, these legislations defeat the very intention of
decriminalizing homosexuality by limiting various civil
liberties of same-sex couples.
The oppressive legislations like Hindu Adoption and
Maintenance Act, 1956, Juvenile Justice Act, 2015 and
the Adoption Regulations which prevents unmarried
couples from adopting children are against the
fundamental rights guaranteed under Articles 14, 15
and 21 of the Indian Constitution.

Indian adoption legislations fail to clear the

classification test of Article 14 since the unjust
classification among individuals created by these Acts
creates room for discrimination between married and
unmarried couples. There are no reasonable objectives
that could be achieved through such classification. It
violates the constitutional values of equality before the
law and equal protection under the law. The adoption
laws are in contravention of the fundamental right to
protection from discrimination, guaranteed under
Article 15. Same-sex couples are guaranteed the right
to live with dignity and honour under Article 21 of the
Constitution. It includes the right to individual choice,
autonomy and self-determination. Marriage depends on
individual choice and any laws which are arbitrary and
unfair or discriminatory against unmarried people
either individually or collectively are ultra vires of the
Constitution.

If the country which per se introduced these stringent

laws in the first place can adopt progressive legislation,
why can’t India?
PERSONAL OPINION

Mere decriminalisation of LGBTQ persons won’t do

complete justice to the community. Both legal and
social acceptance is mandatory, which will emanate
from civil rights. In my view proper adoption and
parenting rights must be introduced for the community.

The first step towards ensuring adoption rights for

same-sex couples in a nation like India, full of customs
and culture, would be legalising same-sex marriage.
However, marriage in India is primarily treated as a
religious sacrament, governed mainly by personal laws
and customs. Therefore, for Indian society to accept
same-sex love and marriage, there needs to be a
perception overhaul only then situation of adoption
rights for the community can improved.
However from the recent judgment of Supreme court
regarding legalisation of same sex marriage.

Evident from regulations, marriage is a prerequisite

for adoption in most cases. Nonetheless, since laws do
not concern themselves with same-sex marriage and
the Centre is disinclined to accept same-sex marriage,
it’s a task for such couples to adopt.

The only option they have then is adopting under one

of the partner’s names. The same could further
intricate matters related to custody and maintenance.
There’s no evidence to show that same-sex couples are
in any way inferior in parenting to heterosexual
couples. On the contrary, recent research has indicated
that children raised by same-sex couples are likely to
outperform children raised by heterosexual couples at
an academic level.

The purpose of adoption is for children to get an

amicable environment and family, which allows for their
emotional and physical growth. Therefore, the main
concern here should be if the child will get a healthy
environment or not.
The essential requirement for any child is to have
loving parents irrespective of their gender.

Conclusion

The United Nations’ Universal Declaration of Human

Rights states,

“Men and women of full age, without any limitation due

to race, nationality or religion, have the right to marry
and to found a family.”
Marriage is something that involves emotions along
with cultural and societal norms. When two people
come together, it’s essential that they love and respect
each other to constitute a family and raise children.
The understanding that same-sex couples can’t raise
children properly is absurd and an insult even to single
parents. Children have the right to be brought up in a
family where they are treated well and loved.

One can’t judge the quality of parenting based on the

sexuality or marital status of the guardian. These are
the grey areas that the government needs to evolve as
well and not mimic social morality. It’s time that India
gets inspired by other countries that have given way for
adoption rights for LGBT couples.
 BIBLIOGRAPHY

For making this project I took help of following

references

1.Purnima Ojha, Same-Sex Marriage is not a

fundamental right, LAW TIMES JOURNAL
(Feb. 25, 2021)

2.Kinshuk Gupta, What does it mean to be a

gay doctor in India? THE HINDU

3.Guardianship and Wards Act 1890.

4.Juvenile Justice (care and protection of

children) Act 2015

And few websites:

https://journals.sagepub.com/doi/
10.1177/0003122420957249
https://www.bbc.com/news/world-43822234