Introduction
Adoption law in India has long been governed by a combination of statutory frameworks and personal laws, with significant variations across religions and marital status. However, as Indian society evolves and conversations around gender identity and sexual orientation gain legal and social recognition, questions arise around the inclusivity of these laws—particularly in relation to the LGBTQ+ community. Despite the decriminalization of homosexuality by the Supreme Court in Navtej Singh Johar v. Union of India (2018), the adoption landscape for LGBTQ+ individuals and couples remains fraught with legal ambiguity and systemic exclusion.
The Current Legal Framework Governing Adoption in India
Adoption in India is primarily governed by two legislations:
- The Hindu Adoption and Maintenance Act, 1956 (HAMA) – applicable to Hindus, Buddhists, Jains, and Sikhs.
- The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) – a secular law permitting adoption by individuals irrespective of religion.
The Central Adoption Resource Authority (CARA) is the statutory body under the Ministry of Women and Child Development that regulates adoptions under the JJ Act. CARA’s guidelines and policies directly impact the rights of potential adoptive parents.
Under HAMA, only a “Hindu male or female” is allowed to adopt, with conditions regarding marital status. A married Hindu male must obtain the consent of his wife, whereas a single Hindu female can adopt but may face limitations in adopting a male child unless certain criteria are met.
Under the JJ Act, an unmarried individual, regardless of religion, can adopt. However, the law uses heteronormative language when it comes to adoption by couples. Section 57(2) of the JJ Act states:
“The prospective adoptive parents shall be physically fit, financially sound, mentally alert, and highly motivated to adopt a child. In case of a couple, the consent of both the spouses for the adoption shall be required.”
This provision creates a legal grey area for LGBTQ+ couples, particularly those in same-sex relationships, as Indian law does not currently recognize same-sex marriages or civil unions.
The Status of LGBTQ+ Individuals
As per existing law, single LGBTQ+ individuals are allowed to adopt under the JJ Act, provided they meet the eligibility criteria. This was confirmed by CARA in its reply to an RTI query in 2021, stating there is no explicit restriction on single LGBTQ+ persons from applying for adoption.
However, the challenges are more practical than legal. LGBTQ+ individuals often face intense scrutiny, social prejudice, and institutional biases from adoption agencies and authorities, who may question their “moral fitness” or stability.
Moreover, while the law permits single persons to adopt, joint adoption by same-sex couples is currently not legally recognized. This limitation becomes especially significant given that the adoption process and subsequent parental rights, such as legal guardianship, inheritance, medical consent, and education, become convoluted for the non-adoptive partner in a same-sex couple.
The Impact of Lack of Marriage Equality
The absence of legal recognition for same-sex marriages in India has a domino effect on several related rights, including joint adoption. Indian law continues to define “spouses” in a heterosexual framework. As a result, LGBTQ+ couples are not recognized as eligible couples under the JJ Act, thereby barring them from jointly adopting a child.
This limitation not only discriminates against LGBTQ+ couples but also violates the principles of equality and non-discrimination under Article 14 of the Constitution, and the right to family life under Article 21.
In Navtej Johar, the Supreme Court emphasized dignity and autonomy as intrinsic to individual liberty. However, without legal pathways to form families through marriage or adoption, that liberty remains incomplete for LGBTQ+ citizens.
Comparative Jurisprudence
Several countries including the United States, the United Kingdom, Canada, and Australia have recognized the right of same-sex couples to adopt children. Courts in these jurisdictions have emphasized the child’s best interest and the need to eliminate discrimination based on sexual orientation.
In Obergefell v. Hodges (2015), the U.S. Supreme Court recognized same-sex marriage as a constitutional right, inherently tying it to parental and adoption rights. Indian courts have not yet made such a leap, but with pending petitions before the Supreme Court regarding same-sex marriage recognition, the landscape could shift significantly in the near future.
The Way Forward
To ensure inclusive adoption policies for LGBTQ+ individuals and couples, the following reforms are essential:
- Amendment to the JJ Act to recognize same-sex couples as prospective adoptive parents.
- Recognition of same-sex marriage or civil unions, either through legislative or judicial intervention.
- Sensitization of adoption agencies and CARA officials to reduce institutional discrimination.
- Clear guidelines from CARA that affirm the eligibility of LGBTQ+ individuals and address the procedural biases they face.
Furthermore, public awareness campaigns and judicial engagement are key to evolving societal attitudes, especially in matters as emotionally and socially significant as parenting.
Conclusion
The road to full equality for the LGBTQ+ community in India is still under construction. While strides have been made in areas of privacy, identity, and decriminalization, the right to form a family through adoption remains elusive—especially for same-sex couples. Bridging this gap requires not just legal reform but also a change in societal attitudes and institutional practices. In a country that prides itself on diversity and constitutional morality, it is time for the law to recognize that families come in many forms, and every child deserves a loving, stable home—regardless of the sexual orientation of the parents.
CONTRIBUTED BY: TANISHA ARORA (INTERN)