• 18-Apr-2023

Same-sex marriage case: Why child rights panel thinks adoption by same-sex couples may harm children

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The NCPCR has submitted that laws such as the Hindu Marriage Act, 1955, and the Juvenile Justice Act, 2015, do not recognise adoption by same-sex couples.

  • Days before a five-judge Constitution Bench of the Supreme Court began a historic hearing in a clutch of petitions seeking legal recognition for same-sex marriage, India’s national child rights body flagged concerns around adoption by same-sex couples.
  • This is what the National Commission for the Protection of Child Rights (NCPCR) has said in its intervention application in the marriage equality petitions before the Supreme Court.


‘Against Juvenile Justice Act, 2015’

  • The NCPCR has submitted that laws such as the Hindu Marriage Act, 1955, and the Juvenile Justice Act, 2015, do not recognise adoption by same-sex couples.
  • The child rights body has referred to the bar on a single man from adopting a female child under the JJ Act, and stated that “to allow a gay couple to adopt a female child would be against the scheme” of the Act, Live Law reported.
  • The petition before the SC says that the right to marry brings with it a host of rights, privileges, and obligations that are “bestowed and protected by the law”.
  • It mentions the right to adopt or to have children by surrogacy or assisted reproductive technology — along with automatic rights to inheritance, maintenance, tax benefits, etc — as being available only to married couples.


‘Against adoption rules’

  • The Commission has opposed the plea in ‘Amburi Roy vs Union of India’ (which is one of the clutches of 20 petitions being heard by the court) which is asking that Sections 5(2)A and 5(3) of the Adoption Regulations, 2022 should be declared unconstitutional.
  • Under Section 5(2)A, a child can be adopted only if “there is the consent of both the spouses for the adoption in case of a married couple”, and “a single male shall not be eligible to adopt a girl child”.
  • Section 5(3) says that a couple cannot adopt unless they have at least two years of stable marital relationship, except in the case of relatives or step-parent adoption.
  • “What we have said in the application is that the law as it currently exists needs to be upheld. Under the present law, a single man, or two men (a couple) cannot adopt a female child. In that matter, we decided to intervene in court as the rights of children cannot be dragged into this case or determined,’’ NCPCR chairperson Priyank Kanoongo told The Indian Express last week.


‘Growing up in same-sex families is stressful for children’

  • The NCPCR has referred to studies that have found that children raised by heterosexual couples are emotionally more stable, and has argued that allowing same sex couples to adopt is akin to “endangering the children”, the Live Law report said.
  • Sources in the Commission had told The Indian Express earlier that it has submitted “international studies and articles’’ showing that children “growing up in same-sex families have a higher probability of suffering from mental and psychological issues, which could affect their growth and development”.
  • In a separate intervention in the same matter, the Delhi Commission for the Protection of Child Rights (DCPCR) has, however, taken the opposite view. The DCPCR has supported marriage equality petitions and the adoption rights for same-sex couples.
  • According to the DCPCR, “Multiple studies on same-sex parenting have demonstrated that same-sex couples can be good parents, or not, in the same manner, that heterosexual parents can be a good parent or not,” the Live Law report said.


‘Child can’t be a subject in an experiment’

  • According to the Live Law report, the NCPCR has submitted that “Giving children to be raised by persons having issues would be like exposing children to struggle just for experimentation and the same is not in the interest of children as every individual has same human rights and it applies to children for being raised safely.”
  • Therefore, the NCPCR has asked that “children may be saved by this Hon’ble Court from being subjected to experimentation or being treated as ‘subject’”.


‘Understanding of ‘gender roles’ will be affected’

  • According to the NCPCR, children raised by same-sex parents will have limited exposure to “traditional gender roles”, and this will impact their understanding of “gender roles and gender identity”, the Live Law report said.
  • This, the NCPCR has said, will limit the overall growth of their personality.