Adoption Law and LGBTQ+ Rights in India

Overview: LGBTQ+ and Adoption in India

Adoption is a powerful symbol of love, responsibility, and family. Yet for LGBTQ+ individuals and couples in India, this right is still not equally protected under the law. While same-sex relationships were decriminalized in 2018 by the historic Navtej Singh Johar judgment, adoption laws haven’t caught up.

Many LGBTQ+ people in India are eager to become parents and provide a loving home to a child. But legal restrictions, social stigma, and outdated policies stand in their way. This article explores the current legal status, challenges, and possibilities for LGBTQ+ adoption in India.

What Does the Current Adoption Law Say?

In India, adoption is governed by two primary laws:

• Hindu Adoption and Maintenance Act, 1956 (HAMA): Applies to Hindus, Buddhists, Jains, and Sikhs
• Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act): Applies to all Indian citizens regardless of religion

Under these laws:

• Single LGBTQ+ individuals can adopt under JJ Act as there is no specific restriction on sexual orientation
• Same-sex couples are not legally recognized as married in India, hence cannot jointly adopt a child as a couple
• HAMA only permits adoption by a male or female spouse in a heterosexual marriage

This means that while a single LGBTQ+ person might be able to adopt, couples face a complete barrier in law.

Challenges Faced by LGBTQ+ People in Adoption

Even if the law allows individual adoption, LGBTQ+ persons face major challenges such as:

• Discretionary Bias: Child Welfare Committees or agencies may reject applications on moral or personal grounds
• No Legal Parental Recognition for Partner: The non-adoptive partner in a same-sex couple has no rights over the child
• Lack of Clear Guidelines: No mention of LGBTQ+ rights in adoption regulations creates a legal grey area
• Social Prejudice: Homophobia and lack of awareness among officials delay or deny fair hearings

Without systemic reform, LGBTQ+ persons are left to navigate adoption through personal loopholes rather than equal legal rights.

Barriers Faced by LGBTQ+ Individuals in Adoption

Despite growing societal awareness, LGBTQ+ persons still face significant legal and social challenges when it comes to adoption in India. Here’s an overview of key obstacles:

• No Explicit Recognition of Same-Sex Couples: Indian law does not yet recognize same-sex marriages, so joint adoption as a couple is not permitted.
• Biased Interpretation: Even though a single LGBTQ+ individual can technically adopt under CARA guidelines, many are rejected during the home study due to perceived “family structure” norms.
• Social Stigma: Adoption agencies and authorities may hold personal biases against LGBTQ+ applicants.
• Fear of Disclosure: LGBTQ+ individuals often avoid disclosing their sexual orientation fearing discrimination or application rejection.

These challenges have forced many LGBTQ+ people to hide their identity or seek adoption through international or informal channels, which often come with legal risks and complications.

Landmark Judgments Supporting LGBTQ+ Rights

Indian judiciary has taken progressive steps in affirming LGBTQ+ rights. These landmark cases have helped lay the foundation for future reforms, including in the area of adoption:

• Navtej Singh Johar v. Union of India (2018): Supreme Court decriminalized Section 377, affirming LGBTQ+ persons’ right to dignity and privacy.
• National Legal Services Authority v. Union of India (2014): Recognized transgender persons as the “third gender” and granted them fundamental rights.
• Shafin Jahan v. Asokan K.M. (2018): Emphasized the individual’s right to choose a partner as part of their personal liberty under Article 21.

Although none of these directly address adoption, they are instrumental in establishing that sexual orientation cannot be a ground to deny constitutional rights, including the right to family and parenthood.

International Perspective on LGBTQ+ Adoption

Many countries have successfully implemented inclusive adoption laws recognizing the right of LGBTQ+ individuals and couples to adopt:

• USA: All 50 states allow LGBTQ+ individuals and couples to adopt
• United Kingdom: Same-sex couples can jointly adopt since 2002
• South Africa: Joint adoption by same-sex couples is legally recognized
• Australia & Canada: National laws support inclusive adoption rights

In comparison, India remains behind the curve. Adopting global best practices can help protect the best interests of children by opening more loving homes—regardless of the adopter’s sexual orientation.

Why Inclusive Adoption Laws Matter

Adoption should be centered around the child’s well-being—not outdated ideas of what a family should look like. Here’s why LGBTQ+ adoption rights are crucial:

• More Families, Less Orphans: India has lakhs of orphaned children, yet many loving LGBTQ+ couples are legally blocked from adopting them.
• Equality and Dignity: Denying adoption rights based on orientation violates the fundamental rights of LGBTQ+ individuals.
• Global Evidence: Research shows children raised by LGBTQ+ parents fare just as well in emotional, social, and academic growth.
• Reduces Discrimination: Legal reform promotes societal acceptance and protects LGBTQ+ families from future harassment or custody disputes.

Inclusion is not just progressive—it’s essential for a fair and just society.

What Legal Reforms Are Needed?

To create a truly inclusive adoption system in India, the following legal reforms must be considered:

• Legal Recognition of Same-Sex Couples: Recognizing LGBTQ+ marriages or partnerships will enable joint adoption rights under Indian law.
• Explicit Provisions in CARA Guidelines: Amend adoption rules to clearly state that sexual orientation or gender identity cannot be grounds for rejection.
• Sensitization of Adoption Agencies: Training and monitoring of child welfare officers to eliminate bias during interviews or home studies.
• Judicial Clarity: High Courts and the Supreme Court should address the legal ambiguity around LGBTQ+ adoption through progressive judgments.

These changes would not only uphold constitutional values but also ensure that thousands of children in shelters find safe, loving homes—regardless of the adopter’s sexual identity.

Stories of Hope: LGBTQ+ Parenthood in India

Despite legal roadblocks, several LGBTQ+ individuals and couples in India have carved out paths to parenthood:

• Harish Iyer: LGBTQ+ activist Harish Iyer applied to adopt a child as a single gay man in 2018 under the JJ Act. While the journey wasn’t easy, his efforts inspired thousands.
• Trans Parents: Several trans men and women have adopted children informally or are raising children biologically or through surrogacy, despite no formal recognition of their parental status.

These stories show how love finds a way, but they also highlight the urgent need for legal recognition and support for non-traditional families.

Conclusion: Moving Towards Inclusive Parenthood

Family is not defined by gender—it is defined by love, care, and commitment. In a country where millions of children await adoption, denying loving LGBTQ+ couples or individuals the right to parenthood is not just unfair—it’s inhumane.

India has already taken bold steps by decriminalizing homosexuality and affirming transgender rights. The next logical, moral, and constitutional step is to empower LGBTQ+ persons to adopt children without discrimination.

Explore Our Related Legal Blogs

If you found this article helpful, you might also want to read our related legal guides:

• Transgender Rights and Legal Protections in India
• Transgender Property Rights in India

Legal Help in Your City – Advocate Ace

Facing discrimination in adoption or need advice on LGBTQ+ legal rights? Talk to inclusive legal experts at Advocate Ace across Gujarat:

• LGBTQ+ Rights Lawyer in Ahmedabad
• Adoption Law Expert in Vadodara
• Inclusive Family Law Support in Surat
• Child Adoption Lawyers in Rajkot
• Legal Guidance for Trans Parents in Bharuch
• Support for LGBTQ+ Couples in Jamnagar

Justice, dignity, and equality are just one consultation away.