Pride and Privilege | An Exposition On Adoption Laws That Affect Queer Parenting

Pride and Privilege is a column on intersectionality and queerness. The column focuses on addressing queer issues and themes with an intersectional lens, as this is what activism and outreach should aim for with all of its work. It also looks at issues that are often invisible and unspoken in our community, such as biphobia, dalit feminisms, and ableism, in order to address the issue of privilege that comes with our pride.

While we have seen recent gains in the country with regards to LGBTQ+ rights, the government has actively rebuked any idea of same-sex adoption and parenting, with laws still being governed by the heteronormative, patriarchal structure which emphasises marriage and partnership between a cisgender man and woman. Same-sex adoption is legal in 44 countries, India not being one of them. Despite the government ruling that criminalising queer existence is unconstitutional, it still holds archaic views on queer people’s right to marry and raise children. Discriminatory opinions seem to take precedence over decades of academic research showing that having an LGBT parent does not harm children at all.

What does queer parenting even look like? It is important to note that queer parenting does not just need to take the form of a same-sex couple, but is anything outside of the heteronormative idea of a straight cisgender man and woman raising a child together, for example, single queer and transgender people raising children themselves

Adoption Law in India

Child adoption laws in India trace back to the ‘Guardians and Wards Act, 1890’. Adoption laws fell under ‘The Hindu Adoptions and Maintenance Act, 1956’, which was established after independence. Only Hindus (including Buddhists, Jains and Sikhs) were eligible to adopt a son or daughter, if they had met the criteria. Muslims, Christians, Parsis and Jews were only able to adopt a child through the Guardians and Wards Act, but the child had different rights under this law. It was only until ‘The Juvenile Justice Act, 2000’, a secular law, that any person irrespective of their religion could take a child in adoption, with the criteria being through the Central Adoption Resource Authority. While adoption laws have gone through the process of reform, they are still extremely exclusionary of the LGBTQ+ community.

Laws Impacting Queer Parenting

A lack of adoption legislative rights in place for queer people mean they would have to look for alternative forms of adoption. However, the new proposed Surrogacy law could potentially make it even harder for queer people to parent. The restriction of surrogacy to legally married couples means ‘imposing prohibition on widows, divorced women, live-in partners’, which could include many queer women, who either want to raise a child by themselves, or with a live-in partner (although the live-in partner would not be a legal guardian). Many Indian LGBTQ+ people in same-sex relationships can adopt children as single parents, but their partners have no legal rights over the child, which would cause other issues later in life, especially around widowed status, guardianship and inheritance. A single or divorced person who is queer can also adopt, but a single male is not allowed to adopt a girl. If same-sex adoption was legalised, it would be interesting to see if the rule of males adopting a girl would be maintained with two gay men attempting to adopt a child together.

The Case of Gauri Sawant

One of the most prolific cases of queer parenting and adoption in India is the story of Gauri Sawant. Gauri, a transgender activist and leading voice in her community, came to the public’s attention when she was featured in a Vick’s commercial that has since reached over 10million views on YouTube. After setting up an NGO (‘Sakhi Char Chowghi’), which provided a space for the transgender and sex worker community, she had come to know of Gayatri, her soon to be daughter, who was at risk of being sold off and trafficked. She then decided from that moment that she would adopt Gayatri and raise Gayatri as her own daughter. Gauri, in the process of trying to legalise this adoption, became the first transgender person to file a petition with the Supreme Court for adoption rights. She is now in the process of setting up ‘Nani ka Ghar’, a home and educational resource for children of sex workers.

The Future

It will be interesting to see how legislation progresses in regards to LGBTQ+ rights in the future. While the Delhi High Court earlier this year dismissed a plea asking for the recognition of equal marriage, we are seeing the discussion of queer marriage and parenting come more to the forefront. Companies in India now are starting to include more LGBTQ+ inclusive policies, such as Star India, and it’ll be interesting to see if and how corporates can affect policy also. Activists on the frontline, such as Gauri Sawant, continue to do the brave work for our rights. It is important for us to support our transgender community in our fight for total liberation, especially with the recent ‘Transgender Persons (Protection of Rights) Bill, 2019’ causing concern. Hopefully, both same-sex marriage and adoption will be legalised one day in India, further ensuring our equal civic rights.

‘Motherhood is an emotion. It should not be labelled or attributed to a particular gender.’ Gauri Sawant.

Harshil Shah is a Research Associate with the Queer Resource Center at One Future Collective.