National and Delhi Commissions for Protection of Child Rights on opposing sides on adoption by same-sex couples

The National Commission for Protection of Child Rights has claimed that the right to equality does not mean equating unequals, and homosexual couples are in a different category than heterosexual couples for the purpose of having children. The Delhi Commission for Protection of Child Rights, on the other hand, has supported adoption by same-sex couples, stating that parenting depends on the capacity to care, and the quality of the relationship shared between the parents and the child.

THE National Commission for Protection of Child Rights (NCPCR) has filed an intervention application in the batch of petitions on the recognition of marriage equality, opposing adoption by gay couples, stating that the issue of adoption by same-sex couples at this stage is “premature” and would be “akin to endangering children”.

The application states that giving children to be raised by same-sex couples “having issues” would be like “exposing the children to the struggle just for experimentation”, and the “same is not in the interest of children” as they have the right to be raised safely.

According to the NCPCR’s application, adoption occurs in a “similar socio-cultural environment”, which is “not possible” in the “scenario” of gay couples.

A Supreme Court Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha is set to hear a batch of petitions from April 18, in Supriyo@Supriya Chakraborty versus Union of India, seeking statutory recognition of marriage equality under various legislation such as the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.

The matter was last heard on March 13 by the three-judge Bench headed by the CJI Dr. Chandrachud, and comprising Justices Narasimha and J.B. Pardiwala, which referred it to a Constitution bench of five judges.

NCPCR’s stand

Adoption by same-sex couples not recognised

In the intervention application, the NCPCR has submitted that the prayer made in Amburi Roy versus Union of India (which has been listed and shall be heard alongside the marriage equality petitions)for declaring Regulations 5(2)(c) and (3) of the Adoption Regulations, 2022 to be unconstitutional, has no relation to the issue in consideration before the Constitution Bench, that is, recognition of marriage equality.

Regulation 5(2)(c) says that a single male cannot adopt a female child, whereas Regulation 5(3) says that only a couple that has had at least two years of a stable marital relationship can adopt a child, except in cases of relative or step-parent adoption.

Further, the NCPCR has submitted that international treaties governing child rights, such as the United Nations Convention on the Rights of the Child, 1990 and the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, do not mention adoption by same-sex couples. Therefore, it can be inferred that they “[do] not recognise any such adoption”, as per the NCPCR.

It has further argued that the Hindu Adoption and Maintenance Act, 1956 refers to heterosexual married couples in relation to the adoption of a child by “Hindu adults” under Sections 7 and 8.

Therefore, the ability to adopt under legislation is limited, and does not extend to same-sex couples.

Legal system does not envisage same-sex couples being parents of adopted children

The Juvenile Justice (Care and Protection of Children) Act, 2015, under Section 57(4)  states: “A single male is not eligible to adopt a girl child.” 

This provision is supplemented by Regulation 5(2)(c) of the Adoption Regulations, wherein it is prohibited for a single male to adopt a female child under any scenario.

On this basis, the NCPCR argues that to allow a gay couple to adopt a female child would be against the scheme of the Juvenile Justice (Care and Protection of Children) Act as Section 57 has been included after due and careful consideration.

Child adopted by same-sex couples affected socially and psychologically 

The NCPCR has submitted that the health, safety and education of the child are of paramount importance while making an adoption. According to it, relevant studies show that a child adopted by same-sex couples is affected in both social and psychological aspects.

A 2015 empirical study entitled Emotional Problems among Children with Same-sex Parents: Difference by Definition, conducted by Dr D. Paul Sullins, from the Department of Sociology of the Catholic University of America was referred to by the NCPCR.

The study tested whether children with same-sex parents suffer any disadvantage in their emotional well-being. It also tested the effect of parents’ psychological distress, family instability, child peer stigmatisation and biological parentage, in both same-sex and opposite-sex family structures.

The study concluded that emotional problems were twice as prevalent among children with same-sex parents than among children with opposite-sex parents.

The NCPCR quoted the report’s finding which states: “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 brings; same-sex marriage ensures the opposite.”

Further, the NCPCR submitted that it “has been found” that there is more risk of emotional problems among children with same-sex parents compared to children with heterosexual parents.

Another research paper by Dr Sullins titled Invisible Victims: Delayed Onset Depression Among Adults with Same-Sex Parents was also cited by the NCPCR. The research aimed to acquire an understanding of the prevalence of delayed-onset depression among young adults fostered by same-sex parents.

Its results indicated that depression risk at the age of 15 years was lower among the respondent group than the general population, after accounting for differences in family socio-economic status. By the age of 28 years, though, the risk ratio for depression increased to 2.6.

Most of the increased risk was due to a marked increase in the rate of depression for the children with same–sex parents,” as per the study.

It further stated that obesity was also much more common among same-sex-parented adults than in the comparison group. Lastly, it found elevated risk of child abuse and lack of closeness to parents among children with same-sex parents.

Two biological, married parents integral to a child’s well-being

The NCPCR referred to the finding in Emotional Problems among Children with Same-sex Parents: Difference by Definition that the lowest risk of emotional problems was observed among children living with both biological parents who were married.

Family research on two biological, married and cohabiting parents has broadly demonstrated that both marital status and biological parentage are integral to children’s well-being,” the application notes.

It must be noted that Dr Sullins and his research has been thoroughly debunked and discredited for being, among other things, dishonest and not scientifically rigorous enough.

No-difference hypothesis incorrect 

The NCPCR submitted that the “no-difference” hypothesis which held that children adopted by same-sex and heterosexual couples exhibit no differences has been “found to be incorrect”.

Referring to a report entitled The Research on Same-Sex Parenting: ‘No Differences’ No More by American researcher Jamie Hall, the NCPCR noted that early studies to that effect were “highly flawed” due to low sample sizes, selective choosing of participants and biased responses.

Further, research by American sociologist Dr Mark Regmnerus, which was referred to in the abovementioned study, states that “those children who at some point during their childhood lived with one parent and that parent’s same-sex partner fared, on average, significantly worse than children of married biological parents on a multitude of measures, including their educational progress as children and eventual employment and dependence on public assistance in adulthood.”

Same-sex couples at greater risk of STDs, which may affect the health of adaptive child 

The NCPCR referred to the page on sexually transmitted diseases (STDs) on the website of the United States national public health agency, the Centres for Disease Control and Prevention, according to which same-sex couples are at a greater risk of getting infected by STDs than heterosexual couples.

Some STDs like HIV, chlamydia and gonorrhoea are spread through body fluids such as semen and ‘saliva’ which makes it highly probable that the adaptive child may be at a risk of infection.”

According to the NCPCR, this indicates adverse health consequences for the adopted child of homosexual couples.

Children raised by same-sex parents have limited exposure to traditional roles 

The NCPCR also posited 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.

According to the NCPCR, children raised by same-sex couples would have limited exposure and their “overall personality growth would be affected”.

On the basis of the above, the NCPCR has prayed that the Supreme Court should save children from being “subjected to experimentation or being treated as subjects”.

It has been submitted by it that a proper legislative system must be in place to deal with the issue of adoption as that would be in the interest of children and same-sex couples.

DCPCR’s stand

In direct contrast with the claims of the NCPCR, the Delhi Commission for Protection of Child Rights (DCPCR), through an intervention application, has supported the adoption of children by same-sex couples.

It has stated that no evidence or empirical data suggests 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 the children of heterosexual parents.

The DCPCR has prayed that steps must be taken both by the Union and state governments to create public awareness that same-sex family units are as “normal” as heterosexual family units and, specifically, children belonging to the former are not “incomplete” in any way.

The directions have been requested pursuant to the Supreme Court’s judgment in National Legal Services Authority (NALSA) versus Union of India (2014).

The duty to respect, protect, promote and fulfil fundamental rights includes the duty to anticipate breaches, and to proactively work to address them, as held in NALSA. The Supreme Court had observed that “the Centre and State governments should take steps to create public awareness so that the transgender [community] will feel that they are also part and parcel of the social life and be not treated as untouchables.” 

School boards and educational institutions should proactively undertake the task of normalisation of this in classrooms when issues touching upon same-sex family units are brought up, according to the DCPCR.

It has also recommended that directions be given to the National and state Councils for Education Research and Training to check and eliminate homophobic content in school textbooks, and to rewrite or re-envisage passages, caricatures, diagrams and references to the family to include more diverse understanding of family and to refer to homosexual couples as examples within the meaning of the family.

Further, it has recommended the creation of dedicated helplines for children facing stigma or bullying by virtue of belonging to a same-sex family unit, and setting aside resources to create an infrastructure for providing counselling and psychological assistance to children suffering from bullying or victimisation on account of belonging to same-sex family units.

Psychological impact upon children

According to the DCPCRC, the sexual orientation of a child’s parents has no bearing on their emotional development or psychological growth.

It referred to a research paper titled Same-Sex Parents and Their Children: Brazilian Case Law and Insights from Psychoanalysis Insights from Psychoanalysis to support its arguments.

It submitted that from a psychological point of view, multiple studies on same-sex parenting have demonstrated that same-sex couples may or may not be good parents, in the same manner that heterosexual parents may or may not be good parents.

Same-sex couples do not have “advantages or disadvantages” to being better or worse parents when compared with heterosexual couples. The relevant aspect, it points out, depends on the capacity for caring and the quality of the relationship between parent and child.

Brazil is a close example of a nation which has a similar multi-ethnic, multi-religious population, and encompasses diverse regions and cultures like India.

In Brazil, homosexuality was decriminalised as far back as in 1830, and marriage equality was legalised in 2013.

Although adoption by same-sex couples started as early as 1995 in Brazil, adoption by same-sex couples was legalised in 2011, when the Brazilian Supreme Court affirmed the constitutional legitimacy of marriage equality in terms of a family unit as a legal category that carries with it access to rights under civil and family law.

A 2022 study titled Same-sex parenting in Brazil and Portugal: An integrative review found that due to the prior adoption of children by same-sex couples and the delay in the legal recognition of marriage equality, such families were put at a disadvantage with regard to issues like health, education and other responsibilities towards children as till 2011, only one parent could exercise the legal right towards the child.

The DCPCR also referred to a study on same-sex parents and their children titled Lesbian & Gay Parenting by the American Psychological Association. The study concluded 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.

The DCPCR pointed out that since the Netherlands legalised marriage equality in 2000, more than 34 countries have legalised it through legislation or judicial decisions. Now, more than 50 countries allow same-sex couples to adopt children legally.

Israel and Lebanon are the only Asian countries that allow adoption for same-sex couples, apart from 22 European and 16 American nations.

The DCPCR went on to cite a 2021 study Academic Achievement of Children in Same- and Different-Sex-Parented Families: A Population-Level Analysis of Linked Administrative Data from the Netherlands, which was conducted by analysing administrative data from several population registers from the Netherlands between 2006 and 2018.

The sample data included complete population coverage, reliable identification of same-sex parented families, multiple objective and verifiable educational outcomes, and detailed measures of family dynamics over children’s entire life courses.

The study found that in socio-political environments characterised by high levels of legislative or public support, children raised by same-sex couples achieved at least as well as children in heterosexual parents. Children living in same-sex parented families experienced no educational disadvantage relative to children living in different-sex-parented families.

Another 2020 study School Outcomes of Children Raised by Same-Sex Parents: Evidence from Administrative Panel published in the American Sociological Review, analysed the academic outcomes of children raised by same-sex parents based on the data derived from the Netherlands.

The academic results of children indicated that children raised by same-sex parents from birth outperformed children with heterosexual parents by 0.139 standard deviations on the academic tests. Moreover, children raised by same-sex parents from birth are 4.8 percentage points more likely to graduate than children with different-sex parents.

This supports the hypothesis that given the time-consuming and costly procedures for same-sex couples to obtain children, same-sex parents typically have higher socioeconomic status, resulting in better academic outcomes, avered the DCPCR.

Legal framework

The DCPCR submitted that the legalisation of marriage equality does not have any serious ramifications with regard to the language employed in the relevant statutes.

It referred to Section 7 (capacity of a male Hindu to take in adoption) of the Hindu Adoption and Maintenance Act and said, “while the provision employs gendered terms, the provision per se is perfectly gender-neutral in substance and no grave violence would be caused thereto by their application to same-sex marriage.

It also referred to Section 6 (natural guardians of a Hindu minor) of the Hindu Minority and Guardianship Act, 1956, and stated that the roles of the parents have been ascribed as per gender. However, the Supreme Court in Githa Hariharan & Anr. versus Reserve Bank of India & Anr. (1999) has watered down the rigorous gendered nature of the provisions, and the same could be further read down to accommodate marriage equality.

A similar approach can also be adopted in the Hindu Succession Act, 1956. The application states, “While certain differences in succession by/through a man and a woman in a family still exist which usually flow from patrilineal structure of our families, these provisions may again be conveniently read down to cater to succession-rights arising out of same-sex marriages.”

Moreover, it said that legislation ought to keep pace with social evolution and cannot become frozen in time.

Contrary to what has been argued by the NCPCR, the DCPCR has stated that Section 57 of the Juvenile Justice (Care and Protection) Act has adopted a progressive and gender-neutral approach.

On the impact on children in general 

The DCPCR stated that in a socio-legal environment where individuals having homosexual orientations do not enjoy basic legal rights, adolescents who develop homosexual orientations may develop adverse psychological complexes and low self-esteem, and suffer from other mental health issues.

As per the 2019 study titled The Impact of Stigma and Discrimination against LGBT People in Ohio undertaken by the Williams Institute, an American public policy research institute, unless equal rights are accorded to homosexual people, their acceptance, assimilation and legitimacy will remain in troubled waters.

In case of non-recognition of marriage equality, the child of a homosexual couple shall have only one de jure parent and guardian. While the child may actually be under joint custody and maintenance of two persons consisting of a homosexual couple performing equal duties, only one of the persons would have de jure authority and rights. This could have psychological and emotional consequences not only for the affected de facto guardian but also for the child, who may be left with a reduced choice in case of a rift or separation between his de facto guardians, the application notes.

By depriving the legal status to homosexual marriages, the State is denying the legal security of dual parenthood and guardianship to the child. The child would thus be deprived of a legally recognised family.”

Judgments of other constitutional courts 

The DCPCR cites judgments by different constitutional courts around the world that have had the occasion to consider the issue of adoption as a right flowing from the right of marriage equality. The argument that for the best interest of the child, a heterosexual couple is required, has been firmly rejected and debunked in these judgments.

The best interests of the child lies in having a loving family, regardless of the sex of the parents.

These courts have agreed that there exists no good ground to deny adoption rights on grounds of sexual orientation. Denying the same would constitute unlawful discrimination.

In National Coalition for Gay and Lesbian Equality versus Minister of Home Affairs (2000), the constitutional court of South Africa noted that nothing prevents a gay or lesbian couple from treating an adopted child, other than strictly legally, as their child.

Further, in Du Toit versus Minister of Welfare and Population Department (2002), the constitutional court stressed the right to adopt of same-sex couples as a means of guaranteeing social and familial stability.

In Obergefell versus Hodges (2015), the landmark United States Supreme Court judgment that legalised marriage equality, the court also noted that many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.

In Florida Department versus Adoption of X.X.G (2010), the constitutionality of the denial of adoption rights to a same-sex couple was squarely at issue before the Florida Court of Appeal. The court affirmed the judgement of the district court and held that the denial of the right to adoption on grounds of sexual orientation was illegal.

In Salgueiro da Silva Mouta versus Portugal (1999), the European Court of Human Rights (ECHR) held that the denial of parental responsibility to a divorced father on the basis that he was homosexual violated the right to family life. The court rejected, in particular, the Portuguese court’s finding that “the child should live in … a traditional Portuguese family”, and that “children should not grow up in the shadow of abnormal situations”.

It found these observations to be in breach of the European Convention on Human Rights’ non-discrimination guarantee.

The Inter-American Court of Human Rights, in its Advisory Opinion No. OC-24/17 of 2017 requested by Costa Rica specifically held that the concept of a “family” was a capacious one, and did not exclude individuals on grounds of sexual orientation.

The court held that … there is no doubt that— for example— a single-parent family must be protected in the same way that the grandparents who assume the role of parents of a grandchild. Likewise, adoption is unquestionably a social institution that, in certain circumstances, allows two or more persons who do not know each other to become a family… [A] family may also consist of persons with different gender identities and/or sexual orientations…

The DCPCR concluded that there is an overwhelming consensus that once society has progressed to a plane where it is no longer permissible to discriminate on grounds of sexual orientation in the context of relationships and marriage, it follows that adoption rights ought also to be extended to same-sex couples on the same terms.

Hearing in the matter is scheduled to begin before a Constitution Bench of the Supreme Court tomorrow.