Adoption Rights of Same-Sex Couples in India

19 Jul 2025 --
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⚖️ Adoption Rights of Same-Sex Couples in India

1. Current Legal Framework

Adoption in India is primarily governed by:

Hindu Adoption and Maintenance Act, 1956 (HAMA) – for Hindus, Sikhs, Jains, and Buddhists.

Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) – for all religions; administered by Central Adoption Resource Authority (CARA).

CARA Guidelines traditionally require that adoption be made by:

A married couple with at least two years of marriage, or

A single individual meeting eligibility criteria.

Currently, same-sex couples are not explicitly recognized in these rules, creating legal ambiguity and practical barriers.

2. Challenges for Same-Sex Couples

No Explicit Legal Recognition:

The law does not mention sexual orientation; therefore, CARA and courts have historically treated adoption applications by same-sex couples as non-compliant.

Practical Obstacles:

Adoption agencies often reject applications by same-sex couples.

Courts have been approached in individual cases, but decisions are inconsistent due to lack of statutory clarity.

Social and Cultural Factors:

Conservative societal attitudes in India also pose non-legal barriers to adoption by LGBTQ+ couples.

3. Key Judicial Developments

a) Supreme Court on LGBTQ+ Rights

Navtej Singh Johar v. Union of India (2018)

Decriminalized consensual same-sex relations under Section 377 IPC.

Affirmed the constitutional rights to equality, dignity, and liberty for LGBTQ+ individuals.

While this case did not directly address adoption, it created a legal foundation for recognizing LGBTQ+ families.

National Legal Services Authority (NALSA) v. Union of India (2014)

Recognized transgender persons’ fundamental rights and gender identity under the Constitution.

Established the principle that personal autonomy and choice in forming families are constitutionally protected.

b) Case Law on Adoption by Non-Traditional Families

Madras High Court, 2021 (Queer Couple as “Chosen Family”)

The court recognized the concept of a “chosen family”, affirming that queer couples have the constitutional right to live together and form families.

This judgment emphasized that the right to life and liberty (Article 21) includes forming a family, even if non-heterosexual.

Supreme Court, October 2023 (Queer Couples & CARA Guidelines)

A 3:2 verdict addressed adoption rights for queer/unmarried couples.

Majority: upheld CARA rules restricting adoption to married couples.

Dissenting Opinion: held that denying adoption rights solely based on sexual orientation or marital status is unconstitutional, reinforcing the principle of equality and dignity under Articles 14, 15, and 21.

4. Legal Principles Emerging

Equality and Non-Discrimination

Same-sex couples cannot be denied adoption rights solely due to their sexual orientation.

Right to Family Life

Article 21 of the Constitution protects the right to form a family, even outside traditional heterosexual marriage.

Judicial Support for Reform

Courts have recognized that CARA guidelines and adoption laws must evolve to include queer couples, though no explicit statutory amendment has been made yet.

5. Summary of Legal Status

Aspect	Current Status
Legal Recognition	No explicit statutory recognition of same-sex couples for adoption.
Single LGBTQ+ Individuals	Can apply for adoption individually under CARA rules.
Same-Sex Couples	Legal recognition is pending; adoption rights are dependent on judicial discretion.
Constitutional Backing	Articles 14, 15, 21 support equality, dignity, and family rights.
Judicial Trend	Courts increasingly recognize “chosen families” and support LGBTQ+ rights, signaling future reforms.