The fight that started with decriminalising Section 377 must not end there – it is a battle half won. Many queer couples in India want to raise children but can’t. Ask Indians what matters most to them and they are likely to say, my family. But in an India that places the family at the centre of the universe, it’s strange that not all Indians get to have one. How many queer parents have you come across at adoption centres, parent-teacher meetings or even eating ice cream with their children at the mall? The fight that started with decriminalising Section 377 must not end there – it is a battle half won. What began as revocation of a ban must now expand to a full realisation of civil rights. Otherwise, the slide is always a looming danger.
In a country where rights for single parents and live-in couples with children is still an arduous battle, the discrimination against LGBTQ+ parents is not even part of public conversations. The right to parenthood for people of the LGBTQ+ community is not recognised or accommodated by law or even society. Although the Supreme Court has in past judgments interpreted the scope of Article 21 of the Constitution – the right to life and personal liberty – to include the right to motherhood and right to reproductive autonomy, this does not seem to apply equally to same-sex couples, transgender individuals and the LGBTQ+ community more generally. In fact, Article 16 of the United Nations’ Universal Declaration of Human Rights states that “men and women of full age… have the right to marry and to found a family.” The phrasing in this 72-year-old document is exclusionary; but even in the India of 2021, the right to begin a family is only available to heterosexual cisgender men and women.
Most laws and rights that fall in the domain of family law in India, including those related to adoption, surrogacy, succession, guardianship and so on, are in some way or the other tied to marriage. And since the LGBTQ+ community has been excluded, so far, from the right to marriage, access to all these other laws is curtailed too.
It is not only the government authorities that stand in the way of adoptions by people of the LGBTQ+ community. In 2015, when Maneka Gandhi, who was the Union minister for women and child development, relaxed the adoption rules to allow single men and women to adopt, some non-governmental organisations (NGOs) that serve as adoption agencies did not approve of the decision. The Missionaries of Charity, for example, temporarily stopped adoption operations at some of their homes as it “hurt their conscience”. That a single parent who adopts may “turn out to be gay or lesbian” was one of their many concerns.
When it comes to Assisted Reproductive Technologies (ART) only heterosexual married couples and single women can access the same, those in live-in and homosexual relationships as well as transgender and intersex individuals are again stripped of their reproductive autonomy.
The Supreme Court on August 28th, has observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships”, while noting that an “atypical” manifestation of a family unit is as real as its traditional counterpart and deserves protection under the law. The predominant understanding of the concept of a “family” both in the law and in society is that “it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children,” according to a PTI report.
A bench of Justices DY Chandrachud and AS Bopanna said in an order uploaded on Sunday, “this assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.” Our hope is that things change for better and that we see more and more LGBTQIA+ people donning parenthood.