The struggle for equality for the LGBTQ+ community in India has witnessed significant legal victories in recent years. The decriminalization of consensual homosexual relationships in Navtej Singh Johar v. Union of India (2018) and the recognition of the right to gender identity in NALSA v. Union of India (2014) were monumental decisions that reaffirmed the constitutional principles of dignity, equality, and non-discrimination. However, when it comes to forming families — particularly through adoption — LGBTQ+ individuals and couples continue to face legal and institutional exclusion.
Presently, there is no specific legislation or judicial ruling in India that explicitly permits LGBTQ+ couples to adopt children. The Hindu Adoption and Maintenance Act, 1956 (HAMA), which governs adoptions among Hindus, Buddhists, Jains, and Sikhs, allows adoption by a married couple or an unmarried individual. However, the statute presumes a heterosexual marital framework, and does not account for same-sex couples. In contrast, the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), a secular law, allows adoption by any individual regardless of religion or marital status. Yet, the Central Adoption Resource Authority (CARA), which oversees adoptions under the JJ Act, limits joint adoption to heterosexual married couples with at least two years of stable marriage. LGBTQ+ couples are, therefore, automatically excluded from jointly adopting children, though individual LGBTQ+ persons may technically apply as single parents. Even this limited path is fraught with challenges and often subject to implicit discrimination during the screening process.
Although the Transgender Persons (Protection of Rights) Act, 2019, recognizes the identity and rights of transgender individuals, it makes no mention of family-building rights such as marriage or adoption. As a result, transgender persons in India are not provided any legal pathway for adopting children under current statutory schemes. While courts have recognized the fundamental rights of LGBTQ+ persons to privacy, dignity, and non-discrimination, there is yet to be a judicial pronouncement affirming the right to adopt as an aspect of Article 21 of the Constitution.
Despite the absence of direct legal recognition, the progressive tone of Indian constitutional jurisprudence hints at the eventual inclusion of family rights within the LGBTQ+ rights framework. In NALSA, the Supreme Court emphasized the equal status of transgender persons, and in Navtej Johar, the Court went further by declaring that consensual relationships and sexual orientation fall within the protected zone of liberty, privacy, and dignity. However, these decisions have not been translated into reforms in family or personal law. LGBTQ+ families are left in legal limbo — individuals may be permitted to adopt, but their partners are given no legal recognition as co-parents. This has severe implications for child welfare, as one parent may be legally invisible, thereby affecting inheritance, guardianship, and emergency medical decision-making.
Comparative international experience provides useful insight. Countries such as Canada, the United States, the United Kingdom, South Africa, and Brazil have amended their laws to allow joint adoption by same-sex couples. These legal systems recognize that the best interest of the child — a universally accepted principle — is not tied to the sexual orientation or gender identity of the parents. India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), which mandates that the child’s best interests must be paramount in all legal and administrative decisions. Denying LGBTQ+ persons the ability to adopt solely on the basis of their sexual orientation or gender identity stands in contradiction to this commitment.
To bridge the gap between progressive constitutional interpretation and regressive adoption policy, several urgent reforms are necessary. First, the CARA guidelines must be amended to recognize same-sex couples and transgender individuals as eligible adoptive parents. The use of heteronormative language and the requirement of a “married couple” should be redefined to include all committed partnerships. Second, the relevant personal laws, especially HAMA, should be amended to eliminate the assumption of heterosexuality in adoption rights and to permit joint adoption by LGBTQ+ couples. Third, courts must be approached, either through public interest litigation or constitutional challenges, to extend the application of Articles 14, 15, and 21 to family-building rights, including adoption.
Furthermore, there is a pressing need for awareness and sensitization within adoption agencies, CARA officials, and child welfare authorities. Training programs should be developed to eliminate bias and ensure that adoption decisions are made based on the fitness of the parent and the needs of the child, rather than outdated prejudices.
The journey towards equal rights for the LGBTQ+ community in India is incomplete without the recognition of their right to form families. Adoption is not merely a legal formality; it is a pathway to nurturing, love, and kinship. Denying this right based on who someone loves or how they identify is inconsistent with the vision of an inclusive and equal India. The law must evolve to match the constitutional promise of dignity and non-discrimination for all — including the right to be a parent.
contributed by- Tulip Raghav (intern)