SC divided on allowing unmarried couples to adopt children jointly

Subject: Polity

Section: Constitution

Context:

The Constitution Bench, which delivered a majority judgment in the same sex marriage case on Tuesday, was divided in its opinions on whether unmarried couples, including same sex partners, can jointly adopt children.
Chief Justice D.Y. Chandrachud held that Regulation 5(3) of the Adoption Regulations, which bars unmarried partners from being prospective adoptive parents, was ultra vires the Juvenile Justice (JJ) Act and violative of the fundamental rights of queer couples.

Laws Related to Adoption in India:

Adoptions in India are governed by two laws: the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice Act, 2015.
Both laws have their separate eligibility criteria for adoptive parents.
Those applying under the JJ Act have to register on CARA’s portal after which a specialised adoption agency carries out a home study report.
After it finds the candidate eligible for adoption, a child declared legally free for adoption is referred to the applicant.
Under HAMA, a “dattakahom” ceremony or an adoption deed or a court order is sufficient to obtain irrevocable adoption rights.
Hindus, Buddhists, Jains, and Sikhs are legalized to adopt kids under this Act.

Recent Development:

The Parliament passed the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 in order to amend the Juvenile Justice Act (JJ Act), 2015.
The key changes include authorising District Magistrates and Additional District Magistrates to issue adoption orders under Section 61 of the JJ Act.
Earlier in JJ Act 2015, adoption of a child is final on the issuance of an adoption order by the civil court.
The Ministry of Women and Child Development has introduced the Adoption Regulations-2022, which has streamlined the adoption process.
District Magistrates (DMs) and Child Welfare Committees have been directed to upload adoption orders and case status in real time.
Since the implementation of the Adoption Regulations-2022, 2,297 adoption orders have been issued by DMs nationwide, resolving a significant portion of pending cases.

What are the Major Challenges Related to Adoption in India?

Lengthy and Complex Adoption Process: The adoption process in India can be lengthy, bureaucratic, and complex, leading to delays in the placement of children with suitable families.
India’s tedious and interminable adoption process can clearly be seen in the statistics with the CARA which states that while more than 30,000 prospective parents are currently waiting to adopt, less than 7% the number of children — 2131— are legally free for adoption.
Around two-third of them are children with special needs, and it takes three years for an adoption process to complete.
Illegal and Unregulated Practices: Unfortunately, there are instances of illegal and unregulated adoption practices in India. This includes baby trafficking, child-selling, and the existence of unregistered adoption agencies, which exploit vulnerable children and biological parents.
In 2018, Ranchi’s Mother Teresa’s Missionaries of Charity came under fire for its “baby-selling racket” after a nun from the shelter confessed to selling four children.
Returning Children after Adoption: India also faces an unusual upsurge in adoptive parents returning children after adopting.
In 2020, CARA stated that over 1,100 children adopted across the country have been returned to child care institutions by their adoptive parents in the last five years.