The growth and development of a child under lesbian/gay parenting.

Vanshika Nupur

Contents

∙ Cases

∙ Abbreviation

Introduction

Evolution and development

Comparison

Conclusion

Suggestion

References

Cases

- NAZ foundation V Govt. of NCT and Ors.

-Suraj Kumar Kaushal & Ors V NAZ Foundation & Ors

-Navtej Singh Johar V UOI & Ors

Abbreviation

Govt- Government

Ors- Others

UN- United Nations

LGBTQ+- Lesbian, gay, bisexual, transgender and queer or questioning

Introduction

Gay parenting refers to a family environment where a child is raised under two fathers and a child brought up by two mothers is lesbian parenting. There are many ways through which same sex parenting is being approached across the globe, adoption and surrogacy are the most common ways. Parenting comes with several responsibilities and waves of emotions. It requires nourishing the child and working towards making them responsible and educated citizens. The decision of raising a child solely depends on the partners/individual involved, while some live up to the expectation other don't. The parenting of a child depends upon emotions, understanding and resources, it has nothing to do with the sexual orientation of the parents. However, the society we live in never misses a chance to raise questions on others and is knowingly or unknowingly infringing the rights of others.

If we take the arguments of the opposing parties it majorly revolves around the misconception that gay and lesbian parenting will lead to their children growing up in a confusing environment and are more likely to choose the same orientation as their parents. This belief system comes from a place of ignorance and lack of knowledge. Being gay/lesbian is not a choice people make through influence rather a biological feeling they are born with like any other person. If we were to look at recent surveys and research from around the world the data suggest a different story. Children born under gay/lesbian parenting are no different from children born under heterosexual parenting. They are well versed with emotional connection, empathy and definitely are doing as good or bad in schools as any other student. A study based on govt data of children born after 1995 in the Netherlands conducted by economists Deni Mazrekaj and Sofie Cabus suggests that children born under gay/lesbian parenting are 6.7 % more likely to graduate than other children born under heterosexual parenting. The reason according to the economists was that these parents go out of their way to adopt a child which reflects their will to become parents. Therefore they will end up being cautious and responsible parents.

It was only after the year 1970s that talks about same-sex parenting started to surface in society and mass media. This was mainly because many countries were beginning to recognise the rights of same-sex couples. The journey is not a pleasant one but there have been some path-breaking judgments. From courts denying any rights to a same-sex couple to judiciary standing up for the rights of LGBTQ+ is interesting.

Development and evolution

Same-sex parenting will not come into question unless and until same-sex couples are recognised and given equal treatment and protection under the law. At present, around 29 countries have legalised same-sex marriage. The Netherlands was the first country to legalise same sex marriage and paved the way for the rights of the LGBTQ+ community.

The colonialism in India brought this discriminatory provision and it stayed in India for 158 years. The fight behind striking down sec 377 is not hidden. The NAZ foundation V Govt. of NCT and Ors, 2009 case for the first time struck down the provision of 377 that indirectly targeted homosexuality. The case was filed by a Ngo working for HIV/AIDS. The NGO worked closely with same-sex couples and saw that they are way more vulnerable to HIV/AIDS because there is a lack of law for them. The court held that the sec 377 is violative of the Right to life under the Article 21 of the Indian Constitution. The court referred to Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant of Civil and Political Rights and the European Convention on Human Rights. The court declared section-377 as unconstitutional as it violates Articles 21, 14 and 15 of our Constitution.

However, right after the court gave judgment, a PIL was filed to review it. In Suraj Kumar Kaushal & Ors V NAZ Foundation & Ors case, the court took a way more narrow scope and neglected the rights of a rather smaller section of our country. The court held that declaring any right unconstitutional should always be the last resort. The changes in society and times is not a valid ground to scrap a law. The judgement also said that Art 377 is gender-neutral and unnatural offences is not targeting any particular group rather is protecting the society as a whole.

The famous case Navtej Singh Johar V UOI & Ors, where the constitutional validity of sec 377 of IPC was challenged, in the year 2018 once and for all struck down the provision of criminalising homosexuality. The court addressed that sec 377 is to protect children and women from being harassed and it talks about non-consensual acts. The court was of the opinion that no matter how less LGBTQ+ the group is, infringing their rights is not acceptable. Also, non-consensual acts have already been referred to as an offence under section-375 of IPC and it makes the presence of Art 277 rather redundant and just a tool to impose discrimination. 158 years of discrimination and struggle saw a major relief after this judgement.

In the Indian context rights of gay/lesbian has been a matter of years of fights, struggle and colonialism. The colonial rule brought the infamous provision of unnatural offences, crushing down the rights of same-sex couples. Homosexuality in India was never a crime. If we look at the work of noted historians such as Harbans Mukhia and Devdutt Pattanaik, it suggests that this decision took India back to its roots. Homosexuality as an unnatural offence was a result of imperial might in many countries. In Khajuraho, a wide range of erotic sculptures are present depicting women erotically embracing women or men exposing their genitals to other men. According to ancient treatises on architecture, a religious structure is completed only when its walls depict something erotic as Kama ie., sensual pleasures are as much an expression of life as are Dharma (righteous conduct), Artha (economic endeavours) and Moksha (spiritual pursuits).

However, to date, same sex marriage is not allowed in India. The constitution of India guarantees rights like- 14, 15 & 21. Article 21 of the constitution guarantees the right to life which includes the right to live with dignity. Article 15 speaks against discrimination based on religion, race, caste, sex, place of birth or any of them. Article 14 promises to deliver equality and equal protection before the law. Consenting adults should not be barred from making the choice of whom they want to love.

Same sex marriage is not recognised in India but we do see the talks surfacing judiciary and judgments in favour of same sex marriage been taken. For instance, the Supreme court judgment in Shafin Jahan V Asokan K.M deserves appreciation. The Hon’ble Court was of the opinion that when “intimacies of marriage lie within a core zone of privacy and society has no role to play here”.

Choosing a partner is a constitutionally guaranteed freedom and marriage can not be interpreted as a bond between a biological man and a biological woman. Unless and until India does not recognise same sex marriage the question of a child growing up under their parenting does not even come into question. Our country is making progress in terms of technology and military and we have moved way ahead in our approaches compared to 1947. The right to have a family is a central idea in the Indian context, provided the concept of social ties and family support is seen highly. Adoptions with due course of law are allowed to single individuals, which too was not treated with respect at some point. We have seen many changes in the way our judiciary and society sees single parenting. Now, to debar willing individuals from having a family solely based on their sexual orientation sounds irrational.

Laws governing adoption, children, guardianship and succession are dealt with the family law in India. This is tightly associated with marriage which conveniently excludes same-sex marriage.  Jurisprudential laws define marriage as a tie between man and woman. The recent regulation of adoption in India allows single individuals and a couple married for two years to adopt a child. The regulations nowhere mention any guidelines for same sex couples. This in turn completely neglects the whole question of same-sex couples wanting to adopt.

A report prepared by the Law Commission of India in 2018 on the uniform civil court was marked by written recommendations sent by a group of queer feminists activists to make the scope of the report wider. The recommendation talked about addressing the rights of individuals who do not come under the gender binary of men and women. It also talks about the right to found a family articulated within the Yogyakarta Principles on Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics. There are several such instances of groups, NGOs and judiciary standing up for the rights of same-sex parenting in India in the recent few years.

Government and laws, at present, are ignorant of the rights of same-sex parenting. This is best reflected in the fact that surrogacy is still considered taboo. in the year 2016, a well known political leader said that surrogacy can not be an option for gay couples because it does not go with our ethos.

Reports suggest that India is home to around 20 million orphans and the chances of them being adopted is less than 5%. A country where children below the age of 12 years are seen begging, dying of poverty and diseases should focus on finding them a loving home rather than denying them any happiness based on the nation's arbitrary opinions. Children benefits if same-sex parenting is allowed and accepted both in India and across the globe.

International laws also suggest that any discrimination based on sex or gender is against the principles of human rights. The Universal Declaration of Human Rights charter begins with the sentence- “All human beings are born free and equal in dignity and rights.” The Un treaties on human rights clearly prohibit any form of discrimination based on sexual orientation. Their reports suggest that same-sex couples/parents are subjected to Violent attacks, ranging from aggressive verbal abuse and psychological bullying to physical assault, beatings, torture, kidnapping and targeted killings. Harsh laws and ignorance of their rights are other evil practices.

Societal pressure

Even today, most areas of India has a questioning eye for children under gay/lesbian parenting. The chances of the child not growing up as a responsible citizen because of bullying, judgments and discrimination are way higher than the assumptions incapabilities of same sex parents.

There are tons of examples where same-sex couples have to hide their relationship, let alone their chance of becoming a parent. Even if they fight these unreasonable societal pressure, the child is often seen hiding the real identities of their parents, which is a sad reality of India.

The pressure on gay/lesbian parents to outdo every other parent is also quite high. This is because of the constant surveillance that is put on them. No one is willing to outlook even the smallest mistake that same sex parents might make. This is doing no good to the development of the society or the child.

Comparison with other countries

In 2005, South Africa passed a praiseworthy judgment by amending its Marriage Act which defined marriage as a union of men and women. The word "or spouse" has been added. At present same-sex couples are guaranteed all right to adopt a child without any prejudices.

If we were to take the example of countries like the UK, who brought in this rather evil provision, has also enabled same sex marriage paving way for a better society. In the USA, in 2015, guaranteed fundamental right of marriage to sex couples. According to reports, there are around 125,00 same-sex couples who are raising approx 220,000 children. The USA has the Human Rights Campaign Foundation working explicitly for the civil rights of gay, lesbians and transgender.

Undoubtedly it would be a better world to live in where we no longer need orphans houses and a step towards allowing and accepting gay/lesbian parenting.

Conclusion

There has been significant progress in the law and society when it comes to acknowledging the rights of same-sex couples but thousands of lives are impacted even today because of the lack of complete awareness. National and International law is marching towards expanding the concept of human rights in the context of same-sex couples. The right to have a child should be evaluated on the grounds of willingness to become a parent, resources and environment rather than one’s sexual orientation. Studies and surveys have been suggesting a completely different story of a child growing under same-sex parenting than what the societal notion speaks. The first step towards the development of any country is the index of human rights been guaranteed. Delaying to deliver equality and dignity would act as a black mark on India's constitutional provisions.

Suggestion

The first step to normalise same-sex parenting is to educate people. The lack of knowledge builds ignorant behaviour and misconceptions that same-sex parenting will have a negative impact on the child. It would be a path-breaking development if schools were to introduce such teachings.

The mass media in India plays a significant role in shaping and moulding society. When hundreds of news channels praise a leader, citizens follow that. Media can be a tool to spread awareness among the mass. They should be the first ones to broadcast surveys and reports that suggest the achievements of same-sex parenting.

India must become a signatory to the Hague convention that talks about adoption and parenting rights. International treaties should be made to govern parenting rights and assuring civil rights.

Frequent surveys and reports should be collected to showcase data on the outcomes of same-sex parenting.

Indian laws governing marriage and adoption rights should be reframed with a wider approach. Jurisprudence should play the role to redefine the meaning of marriage and parents.

Decriminalising laws that bring forms of discrimination bad=sed on sexual orientation. Bring laws that explicitly talks about the rights of same-sex couples. Marriage Act, Family law should be revisited taking examples from the amendment made in South Africa.

Article 19 should add the rights of same-sex couples explicitly to ensure their expression and voice is heard without any unreasonable bars.

References

1- https://indiankanoon.org/doc/100472805/

2- https://indiankanoon.org/doc/194663031/

3- https://legislative.gov.in/constitution-of-india

4- https://journals.sagepub.com/doi/full/10.1177/0003122420957249

5- https://journals.sagepub.com/doi/full/10.1177/0003122420957249

6- https://aamft.org/Consumer_Updates/Same-sex_Parents_and_Their_Children.aspx

7- https://aamft.org/Consumer_Updates/Same-sex_Parents_and_Their_Children.aspx

8- https://www.un.org/en/about-us/un-charter

9- https://www.thehindu.com/opinion/editorial/