ADOPTION RIGHT OF THIRD GENDER AND ANALYSIS IN REFERENCE TO INDIA
Introduction
The THIRD GENDER, there is much to say, so much to express and so much to convey but words seem to not make their way through. Rarely comes a topic such that forces us to ponder hard over the prevailing injustices and inhumanity going on all over the world. We, humans, have a tendency not to accept and humiliate someone, who is different from the so-called "NORMAL GENDERS" of society. We often exploit the underprivileged, marginalised and side-tracked sections of society, be it women, Dalits or third gender. Though things are still not easy for the first two, they have come a long way and people are talking, debating and changing their mindset about women and Dalits but the social status of the third gender remains unaverred. The third gender is beautiful, I again repeat, a beautiful creation of the almighty supremo who isn't necessarily only being feminine or masculine. The simplicity of this definition doesn't apply to them when it comes to the level of social acceptance and acquiring basic rights.
The third Gender is a concept in which, the individuality of a person is recognised either by themselves or by the society where they live in. This term was generally referred to the people who are neither male nor female, but a natural composition of dual genders. In the present era, the definition of this term has now been modified by one of the recent judgements of the apex court (Supreme Court) of India in the year 2014 by Justice K.S. Radhakrishnan and Justice A.K. Sikri, which states that "eunuchs, apart from the binary gender, be treated as a "third gender" to safeguard their rights under our Constitution and the laws made by Parliament and the State Legislature." The court also said that the third gender would have right to identification as a male, female or third gender and they would also be affirmed with the fundamental rights guaranteed under the Constitution of India, equally as the other citizens do that includes the right to privacy, the right to freedom of expression, the right to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely.
Parenthood is one of the most important and beautiful stages of life that every individual wants to attain. It can be said that everyone has a right to become a parent but there are few couples or a single parent who face lots of issues to become a biological parent of someone, may it be because of biological factor, financial issue, limited time, career etc. During the late 1970s, Louis Brown discovered the process of a test-tube baby which is also known as in vitro fertilisation. But it is difficult for everyone to opt for in vitro fertilisation as it cost exorbitant and the chances of getting success are less. A woman in her mid-30's has 39.9% chances while once she 40 or above it has 11.9% for a successful in vitro fertilisation. Thus, the only option that people had was of Adoption, which would save both time and money.
Adoption under Personal and Secular Laws
Adoption is the process by which child leaves his/her biological kindred and ties a knot with another kindred, where the adopted would be getting the same legal and social status as that of a biological child. In this particular article I’m looking into the adoption for the third gender under the personal and secular laws made for the citizens.
In our country, every personal law has a different code of conduct made for the process of adoption because of which there is no uniform civil code for this. This adoption laws trace back to Guardian and Ward Act 1980. For Hindus, Buddhists, Jains and Sikhs, the Hindu Adoption and Maintenance Act (HAMA) of 1956 layout the guidelines to be followed by anyone who so ever belong from the above mentioned four religion may opt for the process of adoption if they fulfil the criteria under HAMA, for Parsi and Christians there is no specific law made and for Muslims, adoption was never an option but in 2014 through a landmark judgement passed by the Supreme Court of India, it allows everyone to adopt a child irrespective of their religion as the proviso of Juvenile Justice Act 2000 overshadows the personal law.
In India, secular law has been made for anyone and everyone who wish to adopt a child under the Juvenile Justice Act (J.J Act) 2000. Section 2(2) of the Juvenile Justice Act 2015 defines the term adoption as "the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child". The Central Authority of India empowers Central Adoption Resource Authority which is also known as CARA as legal authority to formulate laws and procedure of adoption under section 68 of the J.J Act. The criteria for someone to be eligible for prospective adoptive parents is stated under section 57 of the Act. Its mentioned in the act that, in case of any couple, the spouse should give their consent and any single or divorced person is eligible to adopt a child under section 57(2) and 57(3) of J.J Act. But the aforesaid act nowhere discusses a person who is gay, lesbian, bisexual or transgender! Isn't this a discrimination in society?? Just because these people belong to the third gender in the society don't, they have the right to be a parent?
This topic is anodyne as the pace at which the world is progressing this would be a small step towards the enhancement of individual living in the society. Countries like the United States, New Zealand, Australia and a few more have already taken the steps and allowed people belonging from the third gender to adopt children. In 2018 all Australian states and territories allowed adoption, in Columbia till 2013 only 19 states and districts allowed LGBT individuals and couples to adopt, in 2013 New Zealand gave the adoption rights to a same-sex couple and the list goes on. In a country like the United States, according to 2013 census, the same-sex couple makes up approximately 650,000 households and are raising over 115,000 children across the US. Including single lesbian, gay, bisexual and transgender adults, more than 2 million children are being raised by the LGBT parents. In an overview of Lesbian and Gay Parenting, adoption and foster care produced by the American Civil Liberties Union in the year 1999 it clearly shows that there was no evidence to suggest that lesbian or gay are unfit to become parents, in addition to this it also states that the home environment of a lesbian or gay parent is better and enhances the development of a child as compared to that of a heterosexual parent's home environment.
As per the data obtained from the Central Adoption Resource Authority (CARA), there were around 3745 children adopted during one year (April 2019-March 2020) that includes the Inter-country adoption of 394 children. Amongst the states of India, the largest number of adoptions takes place in the state of Maharashtra, followed by Karnataka, Tamil Nadu, Uttar Pradesh and Odisha. According to the Humanitarian and Social Research Center (INSAMER) despite such a mass level adoption of children, there are still 31 million orphans officially registered in India. Only 41% of births are registered, with diseases and outbreaks caused by social inequality, poverty and other social problems that arise due to the strict caste system being considered the primary reason for the high population of orphans in the country. Whereas, the total population of transgender in our country is around 4.88 Lakh as per 2011 census. Therefore, if the third gender gets the right of adoption, then they would be able to give a good living to the orphan children as all these children want is a good life with basic facilities and happy environment.
Parenting is a process by which any parent or parents raise their child from an infant to adulthood by enhancing their mental, physical, social, emotional and intellectual behaviour. The basic thing that a person requires is good morals, well-educated and cultured society and financially independent life to raise a child. All these basic qualities to be a parent is incurred in every single individual may it be a male, female or third gender. In India, we have several examples where a trans-gender played an excellent role being the parent or their adoptive children, people like Gauri Sawant, a transgender who has intensely fought for the rights of transgender by stepping into the field of activist and is currently the director of Sakshi Char Chowghi trust which provides counselling and assistance to trans-people and people suffering from HIV/AIDS. She was one of the petitioners in the case that recognised transgender as the third gender. She is serving as the Goodwill Ambassador of Election Commission in Maharashtra.
Gauri adopted a girl named Gayatri, whose mother was a sex worker and died because of HIV when she was four in age. Another trans woman who played an immense is Padmini Prakash, she is first trans women new anchor of Lotus News, a local Tamil channel. Other than this she has acted in various soap operas and has won a few beauty pageants and is a trained classical dancer. At the age of 13, she was spun by her family because of her identity being a trans, after which one of her parent's family friend accepted her and gave her space in their home. Later he married a guy from that very family and the couple adopted two sons. Akkai Padmashali and her husband Vasu’s, a Bangalore based couple unflinching activism for acceptance and inclusion has made them the first-ever trans couple to legally adopt their three-and-a-half-month-old son recently in the year 2019.
Can third gender adopt?
In the year 2016, the five-judge bench consisting Justice Dipak Mishra, Justice A.M Khanwilkar, Justice Rohinton fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra of Supreme Court of India passed a landmark judgement in the favour of LGBTQ or the third gender community by overruling the judgement passed in Suresh Kumar Kaushal Case endorsed the rights of the third gender by decriminalising section 377 of Indian Penal Code (IPC). The bench also stated that the framers of the constitution made provisions, laws and gave fundamental rights to every citizen of India, thereafter it would be unjust to this minority community (third gender) if we try to discriminate and infringe their rights as they are also the citizen of India who has the rights which are guaranteed under part 3 of the Constitution of India and section 377 of IPC was violating fundamental rights of LGBT community.
Concerning the judgement passed by the court of law one can think if this minority community is getting all sorts of fundamental and statutory rights may it be concerning to their identification, health and welfare, marriage, education, occupation and what, not they why their adoption rights aren't being discussed in the court? Why there isn't any proper set of guidelines for them to adopt a child? Isn't court again discriminating them on the ground of adoption? The case of Jayalakshmi v State of Tamil Nadu is an example where the police destroyed the dignity of trans-gender community. “Pandian, young transgender was interrogated by the police regarding a theft case. He was so abused and sexually harassed by the police personnel that he poured kerosene and set fire to himself.
The Madras High Court ordered compensation. If the face of law which should protect the citizen turns brutal, to whom will the weak and vulnerable turn?” It's high time that our society should understand and accept the changes brought in culture or law, despite discriminating the third gender because of their gender identification issue, we need to understand that it took a lot of courage and sacrifice for the people belonging to LGBTQ or third gender community to take stand for them by challenging the law and acquiring their rights and dignity in the society. We should not forget that the third gender is someone amongst us hence, there is no point that we should discriminate them from us just because of some biological hormonal problem they are forced to live a life against their wish and will. In Sunil Babu Pant vs Nepal Govt and others, the Supreme Court of Nepal used the Yogyakarta Principles and held that sexual orientation is not "mental perversion" or "emotional and psychological disorder" and that the people of different gender identities are entitled to enjoy their rights without discrimination. Their imperfections and flaws make them more beautiful and confident and for sure sooner or later this concept would be understood by each and everyone but the point is why let the third gender suffer more?
Conclusion
A bit is done and a lot is yet to be done in order to safeguard legal, moral and social rights of transgenders. Organisations fighting for these rights are strong and motivated than ever but judicial system too needs to play its significant role and practice "Right to Equality" in its true meaning. In an era where several talks and debates are taking place regarding human rights, it is shameful for us as a society that we failed to include a particular community in mainstream in all terms. It's never too late though. It all starts from us individually. Any and every child deserves love, security and warmth of childhood and every adult who wants to be a parent deserves to experience it. Putting these two statements together, it's very simple to understand that every individual (irrespective of gender) who can provide love, safety and warmth to a child can be a parent. Hopefully in near future we are mentally, legally and socially ready to accept a simple statement as such.
BY- YASHA SINHA
SY BBA LLB(Hons.)
MIT-WPU, SCHOOL OF LAW
PUNE, MAHARASHTRA
Contact No.- 8434563377
Email- yashasinha2000@gmail.com