Introduction
Despite the historic decriminalization of homosexuality in Navtej Singh Johar v. Union of India (2018), the Indian legal landscape continues to fall short in recognizing and protecting the family rights of LGBTQ+ individuals—particularly when it comes to parenting. The concept of family is evolving, but Indian laws remain largely tethered to heteronormative frameworks.
The Legal Status of LGBTQ+ Partnerships in India
At present, same-sex marriages are not legally recognized in India. This was reaffirmed by the Supreme Court in Supriyo @ Supriya Chakraborty v. Union of India (2023), where the Court declined to extend marriage rights to same-sex couples. Although the Court recognized the dignity of queer relationships and urged the state to ensure non-discrimination, it left key decisions to the legislature.
The absence of marital recognition has a direct ripple effect on parental rights, as many family laws in India derive parenthood, guardianship, and adoption rights from the institution of marriage.
Adoption Rights: A Barrier for Queer Families
Governing Laws:
• Hindu Adoption and Maintenance Act (HAMA), 1956
• Juvenile Justice (Care and Protection of Children) Act, 2015
While the JJ Act is technically religion-neutral, adoption is limited to married heterosexual couples or single individuals. As a result:
• Single LGBTQ+ individuals can adopt.
• Same-sex couples cannot adopt jointly.
• The non-adopting partner has no legal recognition as a parent.
This legal void creates insecurity for children raised by LGBTQ+ couples, as one parent has no standing in law—even if they are equally involved in parenting.
Access to Assisted Reproductive Technologies (ART) and Surrogacy
India’s restrictive surrogacy and ART laws further exclude LGBTQ+ individuals from forming families:
• ART (Regulation) Act, 2021: Limits access to assisted reproductive technologies to married heterosexual couples and single women.
• Surrogacy (Regulation) Act, 2021: Allows only altruistic surrogacy for Indian heterosexual married couples.
These laws explicitly exclude LGBTQ+ couples and single men, effectively barring them from starting families via surrogacy or IVF.
This exclusion raises serious questions about equal access to reproductive autonomy, a right that should ideally be protected under Article 21 of the Constitution.
Custody, Guardianship, and Visitation: The Unseen Parent
Because Indian family laws do not recognize same-sex partnerships or queer parenting structures:
• Only the legal parent (via adoption or birth) is recognized in the eyes of the law.
• The non-legal parent in an LGBTQ+ couple has no custody, visitation, or decision-making rights, even after years of co-parenting.
This becomes especially problematic during breakups or legal disputes, where one parent may be completely excluded from the child’s life.
Transgender Parents: Legal Recognition vs. Practical Barriers
The Transgender Persons (Protection of Rights) Act, 2019 guarantees non-discrimination in various spheres, including the right to family life. However:
• The Act does not explicitly mention parenting rights.
• Transgender individuals face societal and institutional bias in adoption, guardianship, and access to reproductive services.
Thus, while transgender persons have formal legal protection, actual access to parenting is fraught with practical and systemic challenges.
Judicial Observations and the Road Ahead
In the 2023 same-sex marriage judgment, the Supreme Court stopped short of legalizing marriage, but offered significant remarks about “atypical families”, urging the State to recognize diverse family structures. However, these remarks do not carry the force of law.
The need of the hour is for the legislature to amend family laws—including adoption, guardianship, surrogacy, and parentage statutes—to:
• Include gender-neutral and orientation-neutral language.
• Recognize intentional and psychological parenthood, not just biological or marital ties.
• Allow joint adoption and parenting by same-sex couples.
Recommendations for LGBTQ+ Parents in India
Until the law evolves, LGBTQ+ individuals may take the following protective steps:
• Execute a will and guardianship documents naming their partner.
• Create co-parenting agreements, which, while not legally binding, can be persuasive in court.
• Maintain detailed records of involvement in the child’s life, which may help in asserting parental claims in disputes.
Legal recourse through Public Interest Litigation (PIL) and strategic constitutional challenges may also push the judiciary to reconsider discriminatory practices.
Suggestion : addressing the lack of parental rights for LGBTQ+ individuals in India requires a multi-pronged approach involving legal reform, judicial activism, administrative changes, and social advocacy. Below are specific, actionable legal and policy solutions, along with a few strategic suggestions for civil society and individuals.
Legal and Policy Solutions
- Enact Gender-Neutral Parentage Laws
• Draft and implement a comprehensive Parentage Act that recognizes intentional parenthood, not just biological or marital ties.
• Replace terms like “mother” and “father” with “parent” in all relevant family laws.
• Provide legal recognition for both parents in LGBTQ+ couples, especially in adoption and surrogacy cases.
Several U.S. states, Canada, and parts of Europe already recognize multiple parents and gender-neutral parenting designations.
2. Amend the JJ Act and HAMA to Allow Joint Adoption by LGBTQ+ Couples
• Modify the Juvenile Justice Act, 2015, to explicitly permit joint adoption by same-sex couples or cohabiting partners regardless of gender or marital status.
• Update the CARINGS portal (run by CARA) to accept applications from LGBTQ+ couples as prospective adoptive parents.
3. Reform Surrogacy and ART Laws
• Amend the ART (Regulation) Act, 2021, and Surrogacy (Regulation) Act, 2021, to allow:
• LGBTQ+ individuals and couples access to ART and surrogacy.
• Single men and transgender individuals to use surrogacy, on par with single women.
Equity in reproductive rights should be guaranteed under Article 14 (equality before the law) and Article 21 (right to life and personal liberty).
4. Recognize De Facto and Psychological Parenting
• Allow courts to consider “best interests of the child” in custody and visitation disputes, including recognition of non-biological co-parents.
• Introduce provisions for de facto parenthood where a person has assumed a consistent parental role.
Child-centric approaches are in line with the UN Convention on the Rights of the Child (India is a signatory).
5. Empanel Family Court Judges on LGBTQ+ Family Law Issues
• Train judges and judicial officers on the nuances of LGBTQ+ family structures.
• Encourage sensitivity training across the child welfare and adoption ecosystem (CARA, district child protection units, family courts).
6. Public Interest Litigation (PIL)
• Bring strategic PILs challenging the constitutionality of:
• Restrictive adoption and surrogacy clauses
• The exclusion of queer families from reproductive rights
• Base arguments on violations of Articles 14, 15, and 21 of the Constitution.
7. Governmental and Institutional Action
• Ministry of Women & Child Development and Ministry of Health should:
• Issue inclusive guidelines and model rules.
• Set up a task force on queer family rights.
8. Legal Awareness and Documentation
• Encourage LGBTQ+ families to:
• Execute legal guardianship papers, wills, medical consent forms, and affidavits of co-parenting.
• Document parental roles through photos, records, and school/medical involvement.
9. Community Legal Clinics
• NGOs and law schools should run queer family legal aid centers to:
• Help draft co-parenting agreements
• Offer legal counselling
• File adoption or guardianship applications for single LGBTQ+ parents
Conclusion
Parental rights for LGBTQ+ individuals in India remain largely invisible in the legal framework. While single queer individuals can adopt or parent biologically, couples are left without recognition, protection, or parity.
Recognizing and protecting LGBTQ+ parental rights is not about special rights—it’s about equal dignity, equal protection, and the right to family life for all.
