In the plea before the Apex Court seeking recognition of same-sex marriages, the National Commission for Protection of Child Rights (NCPCR) has filed an application for intervention to oppose challenges to existing laws, which according to it, prohibit the adoption of children by same-sex couples.

As the sole question before the Court is the scope of the term “Marriage”, the NCPCR submitted that the prayer relating to the Adoption Regulations is totally extraneous to the subject matter of the case.

However, the NCPCR says that since it has come to its notice that certain submissions have been made before the Court on the question of adoption by same-sex couples, it being a statutory body, has a duty to ensure the welfare of children and for the protection of child rights and hence it has approached the Apex Court.

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 have same human rights and it applies to children for being raised safely. Accordingly, NCPCR has prayed before the Court to save the children from being subjected to experimentation or being treated as “subject”.

" 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 have same human rights and it applies to children for being raised safely. It is most respectfully submitted that children may be saved by this Hon'ble Court from being subjected to experimentation or being treated as 'subject'", the affidavit says.

NCPCR has quoted the United Nation Convention on the Right of the Child to submit that there is no mention in UNCRC that a child can be adopted by a same-sex couple. Similarly, NCPCR has submitted that the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which is an international convention dealing with international adoption, does not talk about the adoption by same-sex couples and therefore that it does not recognise any such adoption.

Further, according to Section 7 & 8(c) of the Hindu Adoption and Maintenance Act, 1956, the words “spouse” and “wife” does not recognise adoption by same-sex couples, as the ability for adoption is explained for Hindu males and Hindu females, and does not extend to applying such regulations to same-sex couples, canvassed the NCPCR.

At the same time, NCPCR has thrown light on Section 57(4) of the Juvenile Justice (Care and Protection of Children) Act, 2015, to explain that, it prohibits a gay couple from adopting a female child, as it would be against the scheme of Act.

NCPCR has submitted before the Apex Court that a study conducted by Dr. Paul Sullins (Department of Sociology, The Catholic University of America, USA) concluded that emotional problems were over twice as prevalent for children with same-sex parents than for children with opposite-sex parents, and therefore, functionally, opposite-sex marriage is a social practice that, as much as possible, ensures to children the joint care of both biological parents, with the attendant benefits that bring, while the same-sex marriage ensures the opposite.

Highlighting that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity, NCPCR has submitted that the right to equality does not mean equating un-equals and therefore making category is not against the provision of Article 14 of the Constitution. Couple being two different gender are one category whereas couple having same gender can be considered as different category for the purpose of having children and the same is well within the contours of right to equality, as per NCPCR.

NCPCR also apprehended that the outcome of this petition would have a repercussion on Section 57 of the JJ Act, which covers the eligibility of Prospective Adoptive Parents.

On the other hand, the Delhi Commission for the Protection of Child Rights (DCPCR), that has also approached the Apex Court seeking intervention in the matter, while enshrining the rights of same-sex couples to marry and constitute a family which has a direct bearing upon the rights of children who may become members of such families, has claimed that there is no empirical data to show that same-sex couples are unfit to be parents or that psychosocial development among children of same-sex couples is compromised relative to that among offspring of heterosexual parents.

Taking support from the research paper on “Lesbian & Gay Parenting” by the American Psychological Association, the DCPCR reiterated that home environments provided by same-sex parents are no different from those provided by heterosexual parents, to support and enable children's psychosocial growth.

Similarly, a 2021 Australian study presented at the University of Queensland analysed the administrative data from several population registers from the Netherlands from 2006-2018, and found that children living in same-sex-parented families experienced no educational disadvantage relative to children living in different sex-parented families, canvassed the DCPCR.

Citing the example of Brazil, it is solicited that this is a close example of a nation that has a similar multi-ethnic, multi-religious population, which encompasses diverse regions and cultures to that of India. DCPCR went on to highlight that homosexuality was decriminalised in Brazil way back in 1830 and same-sex marriages were legalised in 2013. Through this, it was submitted that the sexual orientation of a child’s parents, and whether the child is brought up by a heterosexual couple or a homosexual couple, has no bearing upon their emotional development or psychosocial growth.

Moving on to the legal framework, DCPCR has submitted that while the provisions in the Hindu Adoption and Maintenance Act, 1956, Chapter II, employ gendered terms, the provisions per se are perfectly gender-neutral in substance and no grave violence would be caused thereto by their application to same-sex marriages.

DCPCR further put forth that the State is already under legal obligations under the Transgender Persons Act, 2019 to ensure non-discrimination against transgender individuals in matters including succession.

Even the provision on maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956 is worded in largely gender-neutral terms and no legal hurdle is likely to arise therein if children are to be maintained by same-sex parents, claimed DCPCR.

When Justice A. K. Sikri, in his concurring opinion in National Legal Services Authority vs. Union of India & ors. (AIR 2014 SC 1863), had himself observed that “As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of denying political and economic justice”, and “human rights are moral, pre-legal rights. They are not granted by people nor can they be taken away by them”, the DCPCR submitted that if exceptions to literal interpretation/application can be carved for the intersex/transgender individuals, there is no hurdle in widening the bracket of those exceptions for the entire spectrum.

DCPCR has highlighted that in the National Legal Services Authority case and the ensuing Transgender Persons (Protection of Rights) Act, 2019 a duty has been cast upon the State not to discriminate. Accordingly, it was claimed that if this duty can be effectively imposed for transgender/intersex individuals, the argument of complexities and challenges in adapting the gender-specific legislations to accommodate same-sex marriages, and the rights of adoption and succession that flow therefrom, does not hold.

Contending that the mere inability to identify binary gender in a marriage does not by itself necessarily result in frustration of all legislations that create gender-specific rights or impose gender-specific duties in personal or marriage laws, DCPCR submitted that when it comes to questions of adoption and succession, and the rights of children under the existing legal framework, the legalization of same-sex marriage is no cause for concern, and existing legislative language can accommodate same-sex marriages, and ensure that the same rights that accrue to children in the context of heterosexual marriages, also accrue in the context of same-sex marriages.

On the issue of impact on children, Constitutional courts have agreed that there exists no good ground to deny adoption rights on grounds of sexual orientation, and that to do so would constitute unlawful discrimination, and therefore, DCPCR has pleaded that by denying a homosexual individual a right to marry, the State is permanently denying to his or her child a right to a family in the true legal sense of the term.

Cause Title: Supriya Chakraborty vs. Union of India