By Aman Sharma and Hrithik Merchant
The severance of traditional notions of interrelation between marriage and parenthood has precipitated in augmenting adoptions by single parents.[1] Concomitantly, the ban on commercial surrogacy in India has fostered adoptions as an alternative for single parents.[2] Between 2016 and 2019, there were 331 domestic adoptions by single parents in India.[3] Globally, 101 countries allow single males to adopt and 102 countries allow single females to adopt.[4]
India formally introduced a secular law to permit adoption by single parents with the Juvenile Justice Act (Care and Protection of Children Act), 2000 (“JJ Act 2000”). It was replaced by the Juvenile Justice (Care and Protection of Children Act), 2015 (“JJ Act 2015”) which laid down further guidelines.
Section 57(4) of the JJ Act 2015 forbids single males from adopting girls. In a three-pronged submission, the authors argue that section 57 of the JJ Act 2015 is inherently flawed and discriminatory towards the queer community. First, we analyse the presumptions of section 57. Second, we evaluate the efficacy of section 57 in curbing child sexual abuse. Third, we suggest some more effective alternatives.
Revisiting the Presumptions in Section 57 of the JJ Act 2015
Pursuant to section 57(4) of the 2015 Act, “single males” cannot adopt girl child. At the outset, we have to look at the definition of “single” placed in the CARA Rules. While ‘single has not been defined the 2000 or 2015 Acts, it encapsulates persons who are unmarried, divorced, or widowed under Hindu law.[5]
In a quest to understand the purpose of section 57, it is imperative to inspect the Hindu law on adoption. Under Hindu Adoption and Maintenance Act 1856, single men can adopt girls given the minimum age difference of 21 years.[6] The same is prescribed in cases of women adopting boys.[7] There is no age difference requirement in adoptions where the child is of the same sex as the parent. Scholars have contended that the 21-years age difference is in place to prevent the abuse of the child of the opposite gender.[8] Quoting Prof. Nalwa and Prof. Kohli, the legislative intent was to curb any moral wrongs because a “physical urge will overshadow the inner conscience”.[9]
This reasoning, in turn, showcases the principle behind section 57, which is to prevent child sexual abuse in adoption. While the principle pursues a humanitarian end, the means of a blanket ban epitomizes the heteronormativity in their presumption. Scholars like Prof. Ved Kumari have also pointed out this presumption of heterosexuality and heteronormativity.[10] What this provision essentially does is unfairly prejudice the queer community. Single gay men, asexual men, and males who identify as women cannot adopt girls. Furthermore, given that India has still not legally recognized same-sex marriages, even married gay couples cannot adopt girls. This prejudice is aggravated by the fact that commercial surrogacy is banned in India; adoption is the only viable option for the people belonging to the queer community. Such a provision
In Navtej Singh Johar v Union of India,[11] the Supreme Court correctly highlighted that sexual minorities continue to flounder to find acceptance in a heteronormative structure imposed by the society.[12] The adoption provision under the JJ Act 2015 is a clear manifestation of the same. While adoption is not recognized as a fundamental right within the purview of Art 21 of the Indian Constitution,[13] several High Courts have asserted that adoption is a right.[14]
“A question immediately arose, whether a civilised State committed to the Rule of law, governed by a written Constitution and signatory to International Conventions on the Rights of a child, could deny to a section of its own citizens the right to adopt a child and to give that child, a home, a name and nationality.”[15]
While this was said in the context of restriction on adoption along religious lines,[16] it is still echoes the importance of adoption as a right. The current law pilfers this right from prospective parents that belong to the LGBTQIA+ community. However, it still behooves us to ask whether a blanket restriction under section 57 is the best possible mechanism to resolve the issue of child sexual abuse in adoption.
Evaluating the efficacy of such a Provision
Any discourse on adoption has to be involve the most important stakeholders in the adoption process – the children. This approach has found precedence in the seminal judgment of the Indian Supreme Court in ABC v State (NCT of Delhi).[17] It is also echoed by the UN Convention on the Rights of the Child[18] and the Hague Convention on Inter-country Adoption.[19] It is imperative that children are not adopted by perpetrators of sexual abuse.
In the authors’ opinion, the rationale taken by the current law fails to take into account the wide nature of sexual abuse cases. It allows couples to adopt children of any gender, but single men can only adopt boys, to prevent child sexual abuse. This position adopted reflects two flawed assumptions. First, sexual abuse involves female victims only; and second, the presence of a spouse will prevent the perpetrator from sexually abusing the adoptive child.
To rebut the first assumption, we look at sociological analysis of sexual harassment of children. According to Prof. Roberta Matuson, it is untrue that sexual harassment is limited to females.[20] Power dynamics play a really crucial role in sexual harassment. An adoptive child, of whichever gender, is at their most vulnerable place during adoption. To bring things into perspective, it is significant to look at the Protection of Children from Sexual Offences (POCSO) Act, 2012. The POCSO Act provides gender-neutral provisions on sexual assault and lawmakers make no distinction on the gender of the victim.[21] It is plausible and possible that a single man abuses an adopted boy. In 2007, the Ministry of Women and Child Welfare, supported by United Nations Children’s Fund, Save The Children and Prayas, conducted a study to understand the magnitude of child abuse in India. They reported that 53.22% children faced one or more forms of sexual abuse; among them, the number of boys abused was 52.94%.[22] This conclusively reflects the prevalence of sexual abuse amongst boys.
The provision also assumes that child sexual abuse will only not occur in the households of married couples. The authors submit that this flawed. In around 80% of the child sexual abuse instances in India, the perpetrator is a family member. Around 50% of the perpetrators are immediate family members.[23] So, child sexual abuse occurs in prevalent in married households. This echoes the fact that in households where power dynamics are skewed, the presence of a spouse is not sufficient to protect the child. Therefore, it makes us rethink whether the distinctions made under the provision really resolve the existing problems. The answer to that is in the negative. Moreover, all this comes at the cost of denying queer community their right to adopt a child.
Viable Alternatives
Given that adoptive children are in a vulnerable place, they cannot be put through another round of abuse. In India, the CAR assesses the safety of the child on the basis of a Home Study Report.[24] It looks at the suitability of the adoptive parent and the adoptive home. It asks about the parent’s familiarity with adoption, their financial status, marital status, and overall safety of the house. While these are decent measures, notes from the global field depict several other mechanisms to curb abuse in adoptions. In this section, the authors lay out two of the suggestions that can fit in the Indian context.
Firstly, there should be aptitude tests to be conducted for all prospective adoptive parents. Hungary conducts psychological aptitude tests to assess the motivation to adopt the child.[25] There needs to exist a skillful screening process.[26] The process should give intake coordinators and interviewers information and tools to recognize high-risk responses on applications, on reference forms and during an interview. An applicant with inappropriate sexual motives carries with them. Various indicators and life patterns that help identify them as one who may not be appropriate to raise a child or a teen. Silence and ignorance are the playground of the abuser. The Skillful Screening Process, combined with appropriate Criminal Background Checks, can encourage a sexual predator to “self-select out” of the process.
Secondly, there needs to be introduction of sexual abuse awareness training. Typically, our beliefs are shaped by our personal experience, the experiences of our friends and family and the media. For most of us, sexual abuse of children is not a reality we want to confront, so many of us choose to remain uninformed. Media coverage is incomplete, leaving us with an inaccurate picture of the scope, breadth or shape of child sexual abuse. To better protect children, we must realize that the problem is significant and growing, and that abusers have no visual profile. These trainings equip the learner with understanding of possible sings of abuse, it also opens them to be more communicative to the victim and also helps them in confronting children who might be facing abuse in their adoption homes.
Conclusion
The two stakeholders in an adoption paradigm are the adoptive child and the adoptive parent. Adoption programs provide services to children who may have slipped through the cracks: children who have been abused, abandoned, neglected, or those who could not be provided adequate care by their biological families. On the other hand, the right to adopt is crucial aspect of one’s individual rights.
The JJ Act 2015 places a restriction on males from adopting girls. Such a restriction is discriminatory and at the same time, does not resolve the problem of child sexual abuse. There is a need for reformation in adoption law on this aspect by adding other mechanisms to stop child sexual abuse. It is only a principled approach towards a more inclusive and safe adoption that will guarantee all stakeholders their rights.
The authors, Aman Sharma and Hrithik Merchant, are undergraduate law students at the National Law School of India University (NLSIU), Bangalore.
[1] F Khan, No link between marriage, motherhood — why more single women are opting for adoptions, The Print (24/02/2020), available at https://theprint.in/india/no-link-between-marriage-motherhood-why-more-single-women-are-opting-for-adoptions/369165/, last seen on 7/5/2021
[2] S Dhar, Adoption made easier for single women, Times of India (22/07/2017) available at, https://timesofindia.indiatimes.com/india/adoption-made-easier-for-single women/articleshow/59708232.cms> last seen on 7/5/2021.
[3] Supra 1.
[4] United Nations, ‘Child Adoption: Trends and Policies’ (2009) (ST/ESA/SER.A/292) 39 (UN on Child Adoption).
[5] Paras Diwan, Law of Adoption, Minority, Guardianship and Custody chapter 11, 2(5th ed., 2017)
[6] S. 11(iii), Hindu Adoption and Maintenance Act, 1956
[7] S. 11(iv), Hindu Adoption and Maintenance Act, 1956
[8] Supra 5, at 5.
[9] S. Nalwa and H.D. Kohli, Commentary on the Juvenile Justice Act, 345 (2nd ed., 2016).
[10] V. Kumari, The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis 112 (1st ed., 2017)
[11] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[12] Ibid, at para 125.
[13] Shabnam Hashmi v. Union of Indian and others, AIR 2014 SC 1281
[14] In the Matter of Manuel Theodore v Unknown, 2000 (2) BomCR 244 (Bombay HC); In Re: Adoption of Payal @ Sharinee Vinayak Pathak and his wife Sonika Sahay Pathak, 2009 (111) BomLR 2816 (Bombay HC); Philips Alfred Marvin v. V. J. Gonsalves, AIR 1999 Ker 187 (Kerala HC)
[15] Supra 14 (Manuel Theodore), at para 1.
[16] Ibid.
[17] ABC v State (NCT of Delhi), (2015) 10 SCC 1
[18] United Nations Convention on the Rights of the Child 1989, Art. 21.
[19] Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption 1993, Art. 1.
[20] ‘Male Sexual Harassment Is Not A Joke’ (NBC News, 2021) <https://www.nbcnews.com/id/wbna19536167> accessed 4 April 2021.
[21] Protection of Children from Sexual Offences (POCSO) Act 2012, s.7. – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
[22] ‘Study on Child Abuse: India 2007’ (Ministry of Women and Child Development, Government of India) <http://www.wcd.nic.in/childabuse.pdf> accessed 12 April 2021
[23]D. Carson, J. Foster, & N. Tripathi, Child Sexual Abuse in India: Current Issues and Research, 58 Psychological Studies 1, 3 (2013).
[24] S. 58(2), Juvenile Justice (Care and Protection of Children Act), 2015
[25] United Nations, “Second periodic reports of States parties due in 1998: Hungary” (1998) (CRC/C/70/Add.25).
[26] ‘Section 4, Chapter 9 (Adoption and Guardianship Process), Subsection 3 – Selecting Adoptive Families’ (Missouri department of social service) < https://dssmanuals.mo.gov/child-welfare-manual/section-4-chapter-9-adoption-and-guardianship-process-subsection-3-selecting-adoptive-families/> accessed on 14 April 2021
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