The Right To Motherhood: The Legal Journey Of A Same-Sex Couple For Adoption Rights

Amburi Roy and her wife Aparna Saha moved to Berlin in 2021 after over a decade of being in a relationship and struggling to adopt and be mothers together.

Roy and Saha’s petition is currently among the clutch of 20 petitions being heard by the Supreme Court. It seeks to declare sections 5(2)A and 5(3) of the Adoption Regulations, 2022 as unconstitutional.

Section 5(2)A says that a child can be adopted only if “there is consent of both the spouses for the adoption in case of a married couple”, and “a single male shall not be eligible to adopt a girl child”. Section 5(3) of the act says that a couple cannot adopt unless they have at least two years of stable marital relationship, except in the case of relatives or step-parent adoption.

The couple moved the Supreme Court after getting married in August 2022 in Copenhagen, Denmark, in an intimate ceremony. Roy says that while the 2018 Supreme Court ruling in Navtej Johar vs Union of India case was a landmark, “we have only embarked upon the journey and it will be a battle half-won if we were not given the same rights as everyone else in the country”. 

Roy tells Outlook, “It is terrifying to think that my partner cannot make an important decision for me in case of a medical emergency, something that most queer people in a relationship in India are afraid of.”

The Supreme Court struck down section 377 of the Indian Penal Code (IPC) in 2018 to decriminalise homosexuality. However, same-sex couples continue to be deprived of several rights, such as marriage, adoption, maintenance, tax benefits, inheritance, insurance, and other financial benefits, enjoyed by heterosexual couples.

The concept of marriage and family has been driven by the forces of patriarchy and heteronormativity in the country. The legalisation of same-sex relationships does not guarantee social approval for the same. When Roy and Saha came out to their families after being closeted for over a decade, emboldened by the 2018 judgement, their families did not approve of it. 

Roy’s mother told her that “Section 377 should have stayed” to prevent such a relationship by their family. She was even suggested a ‘lavender marriage’ to keep up the pretence of being married to a man in public, while continuing their relationship in private. Saha too was met with a hostile reaction. Her mother told her “she wished she did not know”, and was more concerned about the family’s reputation. Saha was asked to keep her identity discreet and hidden.

Discrimination, violence, and stigmatised behaviour against the queer community in India did not cease with one judgement. As the Supreme Court is now hearing pleas on same-sex marriages, the National Commission for Protection of Child Rights (NCPCR) has moved the court opposing the plea in Amburi Roy vs Union of India. The child rights body submitted that the Hindu Marriage Act, 1955, and the Juvenile Justice Act, 2015, do not recognise adoption by same-sex couples.

Adoption in India comes under the purview of the Hindu Adoption and Maintenance Act, 1956, the Guardianship and Wards Act, 1980, and the Juvenile Justice (Care and Protection of Children) Act, 2000. Only married people or single-male or single-female, governed by Hindu laws, can adopt under the 1956 law. Those from other religions, such as Muslims, Christians, Parsis, and Jews, can become guardians under the Guardianship and Wards Act, 1980.

The Juvenile Justice (Care and Protection of Children) Act, 2015 is said to be a secular law under which one can adopt irrespective of religion. Provisions for the same are laid in Adoption Regulations, 2017, framed by Central Adoption Resource Authority (CARA), a statutory body under the Ministry of Women and Child Development. By allowing only married couples with at least two years of stable marital relationship eligible for adoption, it indirectly restricts same-sex couples from adopting.

As per a November 2022 report by the World Economic Forum (WEF), it is estimated that 29.6 million stranded, orphaned, and abandoned children live in India, out of which just up to 4,000 get adopted annually. However, NCPCR Chairperson Priyank Kanoongo in a conversation with Outlook claimed that the reported data is false and misleading. He said that UNICEF, Lancet, and others publish disproportionate statistics about India.

He told Outlook, “Our data says that 1,84,000 in the country are orphaned. However, 1,70,000 amongst them have at least one parent alive, which leaves us with less than 10,000 children to be legally adopted.” 

Kanoongo does not address the necessity of other conditions necessary for the growth of child or minor other than blood relations. He, however, does say that in most cases of child abuse, the commission has found that abuser is a known, relative, or family member. He uses this as an argument for defending section 5(2)A and 5(3). 

“We cannot establish if a paedophile is posing as a female in a same sex relationship,” he says but dodges the question when asked if there is any data to support his theory. “As of now, there is no psychometric test which will identify a male disguised paedophile amongst queer couple. We will talk to the government when we will have any such data.”

Roy and Saha felt the desire to adopt and be mothers over 10 years ago. The two soon realised the challenges and complications of their dream family. 
“If we adopted a child, we would both be mothers at home but only one would be the legal guardian, one of us would always be an aunt outside. It will be confusing for the kid, as well as for us,” says Saha. 

Roy and Saha, therefore, decided to become parents together with full legal rights. In case of a misfortune, if the legal parent died, the child would again be an orphan. Furthermore, the child will not be entitled to the property of the second parent in the absence of legal recognition.

As a step towards obtaining legal recognition of their relationship, the two moved to Berlin, Germany, in 2021 where they took up jobs as software developers. In July 2022, they sent out wedding cards to their family, relatives, and friends which went unacknowledged for the most part.

The meaning of family cannot be restrained to blood any longer as it is important to seek love and support from your closed ones. 

“Family is not about only blood. Our friends and loved ones applauded our decisions. It’s essential for queer people to find their ‘own’ because not everyone in a queer person's family may be able to comprehend or support us. Those who will remain by your side during important events in your life and provide you with support,” says Saha.

After marriage, they approached several social workers and NGOs but, unfortunately, all avenues led to dead ends. 

“During this painful process, our lawyer informed us that we could adopt as single parents but not together as a cohabiting/live-in couple,” they say. The couple had no option but to knock on the door of the Supreme Court to grant them the right to parenthood. 

Roy says, “One fine afternoon, Aparna said that all we want is to be mothers, and if we need to petition the Hon'ble Supreme Court of India to grant us the right to be parents, let us do it, and here we are.”

At the end of our conversation, the they say, “It pains us a lot that our situation remains the same in our own country. If we were to return to India, which we would like to, we would face situations where all our worries would return.”