PLIGHT OF TRANSGENDER PERSONS IN RIGHTS OF ADOPTION

Siddhartha Parashar

Abstract

“Abridging pivotal rights of transgender community in a democracy is like excluding one of the three pillars of democracy from its functioning.”

Author in this article wants accentuate on the condition of transgender community regarding the rights of adoption in Indian democracy. Moreover, author has also thrown light on how law is vast in India, then also there is absenteeism of rights to transgenders. Furthermore, the author has provided some justifications for why transgender people should have access to adoption rights. At the end, by giving conclusion author has also added up how the third gender has been given crucial rights in the recent times.

Introduction

“Am I just barred from adopting a child because of the self-reliant belief of the society that there are only two genders? Am I not a human being in myself or the harsh reality is that I’m being discriminated on the basis of my genitals?”

~Plea of a Transgender

We are habiting in a country with the lengthiest Constitution, numerous of laws, uncountable statutes, jillion of acts and much more. Despite the multitude of legal measures in the country, we still fail to provide several critical rights to the Third gender. Even though, basic rights like prohibition against discrimination, right to education, non-discrimination in employment and abolition of untouchability are available to them, but still our society lacks in giving them the rights that that are important for a joyous and cheerful life, like the rights of adoption.

What Is Adoption?

Adoption in typical way can be defined as a process of becoming the owner of something, looking down in the legal definition, it is a process of becoming a parent (i.e., non-biological) of any child, the child being orphan, abandoned, adopted by will, adopted relatively and domestically. In legal terms, it is the process of a non-biological parent (who is adopting the child) sharing exclusive rights, errands, and privileges with the biological parent.

Defining Third Gender or Transgender

The term Transgender person denotes a person, whose gender does not correspond to the gender consigned at the time of birth, be it a trans-man or be it a trans-woman. It also includes the persons who are having intersex variations or have undergone any kind of therapy identical to laser treatment or hormonal therapy or any kind of sex reassignment surgery and people identified socially or culturally as jogta, kinner, hijras and aravani.

Adoption In INDIA

Adoption in India is managed through three acts: –

  • The Guardianship and Wards Act, 1890
  • The Hindu Adoption and Maintenance Act, 1956
  • The Juvenile Justice (Care and Protection of Children) Act, 2015

The third is gender is not in scope of any of the above-mentioned act.

Why There Is A Need To Provide Adoption Rights To Transgenders Persons?

It is stated in the law of the land that within the territory of India, there shall not be denial of equality before law, equal protection of law to any person; and discrimination on any ground be it religion, caste or race or be it sex or place of birth, is prohibited.3 Now it is not erroneous to say that, there is no significance of equality for a transgender. When the two genders of the society are eligible for adoption, then the third must also be eligible for the sake of equality. Absence of such a right to transgender community is a clear violative of fundamental rights.

If we look with a practical perspective, there are two grounds for adoption a child: –

  • Marital Status- Basically, marital status is pivotal in adoption. Indian culture is so dense in itself, here marriage is considered to be as an institution. It is an institution for procreation, evolution of generations and also a sacrament in itself. So, people those who ae not married, go in adoption to continue their generation. It becomes very complicated when we talk about marriages in the transgender community or the homosexual marriages. Because same sex marriages or the homosexual marriage have not yet seen of the light of the day in India as they are not legalized. Now the thing is there is no question of marriage for the transgender community, also they are not allowed to adopt a child. How can law be so vague while giving them such crucial personal rights.

  • Physical deformity- People having any kind of physical deformity (mainly sexual) use the channel of adoption for evolution of their heirs. In case of transgenders, they are not able to reproduce or physically not capable to carry on procreation due to mutations in their genitals. So, if one is not able to procreate dur to any kind of deformity be it sexual or be it physical, the channel of adoption is the only possibility for them to continue their generations.

From the above two grounds, due to which any person goes in adoption to continue his/her heirs. It is clear that transgenders lack in both the cases because on one hand government has not yet legalised homosexual marriage and on the other hand, they are not a part of people who can conduct adoption of a child.

Conclusion

In recent times, there have been some crucial development in enforcing the rights to the transgender community. As a separate act4 has been made for them, to widen the extent of their rights and recognition in society. Some leading judgements5 have given the transgender community certain pivotal rights to make them stand equal as other gender and make them also an audience to enjoy the fundamental right6. However important legislations have been made by the government to stop the abuse towards the transgender community but still some decisive steps are needed to be taken to give the net equal status to the transgender community as they are also achieving the heights of success with flying colours. We can see transgenders in every field7. When there are rights of occupation, livelihood and to follow any profession, then there must be the rights of adoption for transgender community too.

Rights of adoption must be given to the transgender community because they must be the target audience for adopting a child. Furthermore, there must be some restrictions in adoption like there is ineligibility from adoption if any person is involved in any kind of criminal activity; No person, who is economically unstable, cannot adopt a child. Therefore, it is suggested to include transgenders as participants for adoption in every act which concerns with adoption.

References

  • SECTION 2(2), THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
  • SECTION 2(K), THE TRANSGENDER PERSON (PROTECTION OF THE RIGHTS) ACT, 2019
  • ARTICLE 14, THE CONSTITUTION OFINDIA, 1950
  • THE TRRANSGENDER PERSON (PROTECTION OF RIGHTS) ACT, 2019
  • NATIONAL LEGAL SERVICE AUTHORITIES V. UNION OFINDIA SCC 2014
  • ARTICLE 14, 15, 19 & 21; CONSTITUTION OFINDIA, 1950
  • SATHYASRISHARMILA (FIRST TRANSGENDER LAWYER); JYOTI MONDAL (FIRST TRANSGENDER JUDGE); PRITHIKA YASHINI (FIRST TRANSGENDER POLICE OFFICER).