- 19-Apr-2025
- Healthcare and Medical Malpractice
The right to adoption in India is primarily governed by laws under the Hindu Adoption and Maintenance Act (HAMA), 1956, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Special Marriage Act, 1954. However, the question of whether transgender persons can adopt a child in India has been historically underexplored. While Indian adoption laws do not explicitly address the adoption rights of transgender individuals, certain legal provisions and interpretations offer a framework for their adoptive rights, although challenges persist in practice due to societal and institutional biases.
The Juvenile Justice Act provides the legal framework for the adoption of children in India. Under this Act, adoption is guided by the principle that the child’s best interests should be the primary consideration.
The Central Adoption Resource Authority (CARA), which operates under the Ministry of Women and Child Development, is the authority responsible for regulating and facilitating adoptions.
The law does not specifically exclude transgender persons from the right to adopt. Therefore, in theory, transgender individuals are legally eligible to adopt children if they meet the general criteria, including having the financial means, emotional maturity, and social environment to care for a child.
According to the CARA guidelines, any individual, whether single or married, can adopt a child if they fulfill certain criteria. While the guidelines do not explicitly mention gender identity, single individuals (including transgender persons) may apply to adopt.
Key criteria include:
While Indian law does not explicitly prohibit transgender individuals from adopting children, societal and institutional prejudices often hinder their ability to navigate the adoption process. Adoption agencies may harbor biases against transgender applicants, leading to discrimination or denial of adoption applications.
Since there are no specific legal provisions or guidelines regarding the eligibility of transgender persons to adopt, uncertainty and legal challenges can arise. In practice, adoption authorities may not have clear protocols on handling cases involving transgender individuals, making the adoption process more complex.
Transgender persons in India continue to face stigma and discrimination from society, and this may be exacerbated in the adoption process. Potential adoptive children may also be subjected to social biases, leading adoption authorities to hesitate or deny adoption requests to transgender persons.
The Transgender Persons (Protection of Rights) Act, 2019 affirms the right of transgender persons to live with dignity and to access various services, but it does not explicitly address the issue of adoption rights.
While there are no direct legal precedents in India concerning transgender adoption, there have been instances where transgender persons have successfully challenged discrimination in other areas, such as employment and education. This suggests that transgender rights advocates could eventually pursue legal avenues to challenge any denial of adoption on the basis of gender identity.
In the landmark case of National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court of India recognized transgender persons as a third gender and affirmed their fundamental rights under the Constitution of India. This recognition provides a foundation for advocating for equal treatment of transgender persons in all spheres of life, including adoption.
Some NGOs and adoption agencies are becoming more inclusive and have started working to provide support and legal assistance to transgender persons who wish to adopt. These agencies may be more willing to help transgender individuals through the application process, despite the challenges.
A few NGOs are also focusing on raising awareness about the rights of transgender persons in adoption, offering training for adoption agencies to deal with such cases in a non-discriminatory manner.
Case 1: A transgender woman applied for the adoption of a child under the Juvenile Justice Act and was initially rejected due to her gender identity. She filed a petition in court, challenging the discrimination in the adoption process. The case is ongoing, with advocates highlighting that the denial of adoption based on gender identity violates fundamental rights under the Indian Constitution.
Case 2: A transgender man was successfully able to adopt a child after undergoing the standard adoption procedure. Despite initial reluctance from adoption agencies, he was able to provide evidence of his ability to meet the financial and emotional needs of the child. This case was seen as a positive step towards inclusion in the adoption system.
While transgender persons in India are not explicitly excluded from adopting children under the existing adoption laws, they face several legal and social challenges in practice. The lack of clear legal provisions specific to transgender adoption, combined with institutional biases and stigma, can create significant hurdles. Nevertheless, with the increasing recognition of transgender rights in India, it is hoped that adoption laws and policies will evolve to provide a more inclusive and non-discriminatory framework for transgender individuals seeking to adopt. Legal advocacy and awareness campaigns can help overcome these barriers and ensure that transgender persons have equal access to adoption opportunities.
Answer By Law4u Team
Discover clear and detailed answers to common questions about Civil Rights. Learn about procedures and more in straightforward language.
