Same-sex marriages are not legally recognised in India. But what have courts in the country said about same-sex couples living with each other?
Can queer couples adopt children? Are transgender folks allowed to adopt a child?
As the Supreme Court gears up to hear petitions seeking recognition of same-sex marriages, conversations and questions around rights available to the queer community are gaining ground.
The ‘Compendium on LGBTQIA+ Rights,' a joint effort by the Keshav Suri Foundation and law firm Khaitan & Co, offers clarity on several crucial questions. Released in March this year, the report is a compilation of key laws applicable to the LGBTQIA+ community.
"The archaic law (Section 377 IPC) was read down in September 2018 and it was a sweet, hard‐fought victory for every Indian to live their lives authentically and embrace their true selves. However, I believe, the road to equality is long one and there is growing need to bring about a change in the mindset at grassroot levels."– Keshav Suri
So, can same-sex couples have a child through surrogacy? Can they adopt a child from another country? Have courts in India done enough for the community? The Quint takes a look at what the report says.
What Rights Do LGBTQIA+ Indians Have? This Report Answers 9 Key Questions
1. What Are the Key Rights Recognised by Courts for LGBTQIA+ Persons?
A large part of the LGBTQIA+ legal jurisprudence has developed at the hands of the courts.
The following is list of key basic rights recognised by the courts of this country:
(a) Self‐determination of gender and Identification as a third gender
(b) Right to seek food security and to avail status of head of a household and laid down that under National Food Security Act, 2013
(c) Protection against marginalisation
(d) Personal liberty to engage in voluntary sexual acts
Expand2. Is Discrimination Against LGBTQIA+ Folks Legal?
(Just in case you still don't know) No, it's not.
“Discrimination on the basis of an individual identifying themselves as LGBTQIA+ person is not legal. In fact, the Constitution clearly prohibits discrimination on the ground of sex. The term sex is read to include gender as well,” the report says.
Expand3. Can Same‐Sex Couples Be in a Live‐In Relationship?
Yes, say high courts across the country.
“After the decision of the Supreme Court in Navtej Singh Johar and the striking down of Section 377 of the Indian Penal Code, 1860 to the extent it criminalised consensual same‐sex activity, it appears that High Courts have recognised that a person has a right to have a live‐in relationship with a person of his/her choice even though such a person may belong to the same gender. The High Courts have recognized this right of live‐in / cohabitation as a part and parcel of right to liberty under Article 21 of the Constitution," the report explains.
Expand4. Can an Indian Same‐Sex Couple Adopt a Child Together in India?
No.
“As per the Adoption Regulations, 2017, a couple can adopt a child together provided they have been married for a period of two years. Since a marriage between the same‐ sex couple is not legally recognised, same‐sex couples cannot adopt a child together in India.”
Expand5. Can Same‐Sex Couples Have a Child via Surrogacy in India?
No.
"The Surrogacy Act only permits an Indian couple and an Indian widow or divorcee woman between the age of 35 to 45 years to avail surrogacy. Importantly, the term couple has been defined as a legally married Indian man above the age of 21 years and woman above the age of 18 years who do not have any surviving child either biologically or via surrogacy or adoption," the report says.
Expand6. Can an LGBTQIA+ Person Adopt a Child in an Individual Capacity?
Yes.
"A single person identifying as female / male can adopt a child in an individual capacity in India. The eligibility criteria for prospective adoptive parents does not expressly prohibit homosexual or bisexual individuals from adopting in an individual capacity. However, the adopted child will be deemed as the biological child of only the adoptive parent and no rights will flow from the partner of the adoptive parent," the report says.
Expand7. Can Transgender Folks Adopt Children in India?
This bit is still unclear.
“Basis a plain reading of the law, whereas a single female and a single male are eligible to adopt individually, it is presently unclear whether a transgender person is eligible to adopt under the Adoption Regulations, 2017. When it comes to adoption, CARA is the certifying authority that will ultimately scrutinise the adoption applications," the report says.
Expand8. Can an Indian Same‐Sex Couple Adopt a Child Together From Another Country?
No.
"As per Hague Convention on Adoption, an inter-country adoption shall take place only after the competent authority in the receiving state (India) has determined that the prospective adoptive parents are eligible and suitable to adopt. Since, same‐sex couples cannot adopt a child together in India, CARA will not deem the prospective adoptive parents eligible to adopt a child from another country," the report says.
Expand9. What More Can Be Done?
“While the judiciary has been pro‐actively playing its part in recognising rights of the LGBTQIA+ community, similar expectations arise from other the pillars of our democracy, i.e., the legislature for enacting progressive laws and the executive in enforcing them at the ground level,” the report says.
“For instance, while Navtej Singh Johar v Union of India decriminalised private consensual homosexual acts in 2018, private consensual acts still face social stigma and threats at the ground level," it adds.
The need of the hour, according to the report, is for:
The legislature to enact positive laws that accord the LGBTQIA+ community with basic rights in respect of marriage, succession, adoption and employment
The legislature should also take an initiative to re‐calibrate the existing laws, for instance, make them more gender neutral, to ensure their fair applicability to the LGBTQIA+ community
(The Compendium also lists out key judgments that have shaped the rights of the queer community in India. Read it here.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)
Expand
What Are the Key Rights Recognised by Courts for LGBTQIA+ Persons?
A large part of the LGBTQIA+ legal jurisprudence has developed at the hands of the courts.
The following is list of key basic rights recognised by the courts of this country:
(a) Self‐determination of gender and Identification as a third gender
(b) Right to seek food security and to avail status of head of a household and laid down that under National Food Security Act, 2013
(c) Protection against marginalisation
(d) Personal liberty to engage in voluntary sexual acts
Is Discrimination Against LGBTQIA+ Folks Legal?
(Just in case you still don't know) No, it's not.
“Discrimination on the basis of an individual identifying themselves as LGBTQIA+ person is not legal. In fact, the Constitution clearly prohibits discrimination on the ground of sex. The term sex is read to include gender as well,” the report says.
Can Same‐Sex Couples Be in a Live‐In Relationship?
Yes, say high courts across the country.
“After the decision of the Supreme Court in Navtej Singh Johar and the striking down of Section 377 of the Indian Penal Code, 1860 to the extent it criminalised consensual same‐sex activity, it appears that High Courts have recognised that a person has a right to have a live‐in relationship with a person of his/her choice even though such a person may belong to the same gender. The High Courts have recognized this right of live‐in / cohabitation as a part and parcel of right to liberty under Article 21 of the Constitution," the report explains.
Can an Indian Same‐Sex Couple Adopt a Child Together in India?
No.
“As per the Adoption Regulations, 2017, a couple can adopt a child together provided they have been married for a period of two years. Since a marriage between the same‐ sex couple is not legally recognised, same‐sex couples cannot adopt a child together in India.”
Can Same‐Sex Couples Have a Child via Surrogacy in India?
No.
"The Surrogacy Act only permits an Indian couple and an Indian widow or divorcee woman between the age of 35 to 45 years to avail surrogacy. Importantly, the term couple has been defined as a legally married Indian man above the age of 21 years and woman above the age of 18 years who do not have any surviving child either biologically or via surrogacy or adoption," the report says.
Can an LGBTQIA+ Person Adopt a Child in an Individual Capacity?
Yes.
"A single person identifying as female / male can adopt a child in an individual capacity in India. The eligibility criteria for prospective adoptive parents does not expressly prohibit homosexual or bisexual individuals from adopting in an individual capacity. However, the adopted child will be deemed as the biological child of only the adoptive parent and no rights will flow from the partner of the adoptive parent," the report says.
Can Transgender Folks Adopt Children in India?
This bit is still unclear.
“Basis a plain reading of the law, whereas a single female and a single male are eligible to adopt individually, it is presently unclear whether a transgender person is eligible to adopt under the Adoption Regulations, 2017. When it comes to adoption, CARA is the certifying authority that will ultimately scrutinise the adoption applications," the report says.
Can an Indian Same‐Sex Couple Adopt a Child Together From Another Country?
No.
"As per Hague Convention on Adoption, an inter-country adoption shall take place only after the competent authority in the receiving state (India) has determined that the prospective adoptive parents are eligible and suitable to adopt. Since, same‐sex couples cannot adopt a child together in India, CARA will not deem the prospective adoptive parents eligible to adopt a child from another country," the report says.
What More Can Be Done?
“While the judiciary has been pro‐actively playing its part in recognising rights of the LGBTQIA+ community, similar expectations arise from other the pillars of our democracy, i.e., the legislature for enacting progressive laws and the executive in enforcing them at the ground level,” the report says.
“For instance, while Navtej Singh Johar v Union of India decriminalised private consensual homosexual acts in 2018, private consensual acts still face social stigma and threats at the ground level," it adds.
The need of the hour, according to the report, is for:
The legislature to enact positive laws that accord the LGBTQIA+ community with basic rights in respect of marriage, succession, adoption and employment
The legislature should also take an initiative to re‐calibrate the existing laws, for instance, make them more gender neutral, to ensure their fair applicability to the LGBTQIA+ community
(The Compendium also lists out key judgments that have shaped the rights of the queer community in India. Read it here.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)