OBSCURE LINES BETWEEN GENDER, REPRODUCTION AND THE LAW:LGBT COMMUNITY AND THEIR RIGHT TO PARENTHOOD

This article has been authored by Namrata Chandorkar, a final year law student at ILS Law College, Pune.

Right to Parenthood in India

Article 21 of the Indian Constitution was recognised to include the right to privacy, in the landmark judgment of K.S. Puttaswamy and Anr. v. Union of India and Anr.[1] This said Judgment lays down that right to privacy is a facet of Article 21 of the Indian Constitution and is a fundamental right of any individual. The right to privacy includes the right to complete autonomy over one’s body. This includes reproductive autonomy, and by that extension, the right to parenthood. Marriage is also no longer a pre-requisite to the right to parenthood. In recognition of this same dimension, single parents are now afforded the right to adopt in India.

The instinct to forward one’s progeny is inherent to human nature. Social structures like marriage are often justified using person’s intent to procreate or be succeeded by an heir. However, when we speak of the right to parenthood for the LGBT community, suddenly there is a cloud of opposition and doubt.

The LGBT community in India has been fighting for legal and civil recognition for decades now. In 2018, their very existence was unlabelled as an offence. But the battles continue. Without legal recognition afforded to same-sex marriages, same-sex couples are denied several rights, that legally flow from marriage. Parenthood is one of them. In general, the two ways of attaining the legal status of a parent are via pregnancy, and via adoption.

In India, adoption is governed by the Juvenile Justice Act, 2015, and the Hindu Adoptionand Maintenance Act, 1956 .

Parenthood and Marriage:

The irrefutable narrative driven in society is that only married parents can provide a child with a stable and sustainable life. However, it is a gross fallacy to presume that unmarried couples will not be suitable parents. By assuming so, we are denying the constitutional right to parenthood to individuals who opt out of the institution of marriage, which is a purely personal choice, not open to regulation by the State.

Socially, marriage is considered synonymous to “stability” and “normalcy,” but this equivalency is incorrect. It propagates the much harmful societal notion that marriage is required to validate rights like sexuality, and parenthood. The presumptions that the law holds about marriage, may easily be overhauled when we speak of domestic violence, dowry, cruelty, marital rape, child abuse. It is probable that a married couple may not provide a safe haven to their child. Conversely, an unmarried couple must be given a chance to contest their suitability for a legal adoption. Lastly, something as subjective as parenting cannot and should not be decidedly judged by any measure.

Adoptive Parenthood and Marriage:

Under the Indian adoption law, according to the Juvenile Justice Act of 2000, single parents were excluded from adoption. However, adoption law must be premised to uphold the best interests of the child, thus, it would be unfair to allow considerations related to marital status to supersede the best interests of the child. Keeping the same rationale in mind, the 2015 Juvenile Justice Act, allows a woman to adopt a child of either sex, and a male to only adopt a boy child.

Adoption under the Juvenile Justice Act, 2015:

Under the Juvenile Justice Act of 2015, the process of adoption, not governed by Hindu law, has been comprehensively laid down. According to the parent Act and the Rules issued thereunder, only married couples are eligible to adopt. This ipso facto precludes same-sex couples from adopting as a married couple. However, with the Supreme Court’s ruling validating live-in relationships,[2] and the Centre allowing live-in couples to adopt, we must examine if same-sex couples, who are in a live in relationship, may be eligible to adopt.

In 2018, via a circular, the Central Adoption Regulatory Authority barred live-in couples from adopting. However, the said Circular was withdrawn. The discussion on the reconsideration may be viewed in the minutes of the 16th meeting of CARA’s Steering Committee Meeting of CARA held on 30th August, 2018. It was decided that one of the partners in the live-in relationship may adopt as a single parent. In this case, the legal custody of the child will be given to only one individual, thus, the previous circular was withdrawn.

Parenthood and Same-sex couples:

As per the decision stated above, it is now possible for one of the partners in a same-sex couple to adopt a child. No doubt, this may not be considered the ideal image of a family, nonetheless, it allows individuals to exercise their rights in a legally accepted scenario.

Parenthood and Transgender Individuals:

The LGBT community includes transgender individuals as well. Recognising them has brought about the necessity to challenge the gendered notion of parenthood. It is accepted, by default, that every child shall have one mother and one father, biologically. However, in the legal setting, things may differ, Legally, in the case of a same-sex couple, a child may have two legal mothers or two legal fathers. Thus, the legal and biological parenthood of individuals is different, a child may have more than one legal mother or father, however, every child has one biological father and one biological mother.

Legal conundrum : Intersection of Biology and Law?

Transgender men (female to male transition) who retain their reproductive abilities, may choose to give birth. In such a case, the question is, will he be recognised as the biological father of the child, as he is legally male, or will he be recognised as the mother of the child, as he has biologically gone through the process of childbirth?

Conversely, transgender women (male to female transition) may give birth in the capacity of a male by using male gametes stored prior to transition. Would the law recognise such a woman as a mother or a father of the child then? Junctures like these challenge our legal intellect and understanding, nonetheless, the aim of law itself is to maintain order in society, for all individuals, with no discrimination.

In the case of A.H. and Ors. v. Germany, a case pending before the European Court of Human Rights, this legal conundrum is highlighted. The brief facts of the case are;

1. In 2012, A.H. (female) changed sex from male to female and changed from male registration to female registration in the public records.

3. In 2015, after a sperm donation from A.H., G.H. (female) became pregnant and gave birth to L.D.H. In the same year A.H. and G.H. entered into a registered civil partnership and requested that they both be registered as mothers of L.D.H.

4. The Berlin authorities registered G.H. as the mother of L.D.H., but refused to register A.H. as mother because domestic law defined the mother as the person who had given birth to the child and did not provide for the possibility to acknowledge maternity by any other person. A.H. had only the possibility to be registered as L.D.H.’s father, under her former male forename. The applicants’ appeals to the civil courts and a subsequent constitutional complaint to the Federal Constitutional Court were to no avail.

5. The applicants complained under Article 8 of the European Convention of Human Rights of the fact that A.H. was not registered under her current female forename as L.D.H.’s mother but could only be registered under her former male forename as the child’s father. This fundamentally contradicted their perception of their relationships and required G.H. and L.D.H. to disclose A.H.’s transsexuality.

This case has revealed that the gendered nature of parenthood, does not suit every member of the community, i.e. transgender individuals. Transgender individuals have a right to privacy which extends to not having to constantly disclose their past biological sex. Acknowledging trans women as “fathers” or trans men as “mothers” on official documents like the birth certificate or passport of their children, is a gross violation of the guaranteed right to privacy afforded to the transgender community.

The said case is pending in the said Court of Law, however, there have been ample cases around the world where transgender individuals have given birth in a sense that does not align with their legally acquired gender. No such case has been known in India as of yet, but it makes one question the gendered notion of parenthood and reproduction.

Conclusion:

The right to reproductive anatomy which includes the right to parenthood is a guaranteed fundamental right. It is a personal decision that no State should be allowed to govern. Article 14 lays down the right to equality, and exceptions may only be made when there is intelligible differentia to justify any biased or differential treatment. Disallowing same-sex couples to adopt children is based on no rationale that allows Article 14 to be evaded.

The gendered nature of the conventional idea of parenthood is oblivious to the fact that while sex is biologically decided, gender may not be. Parenthood must be contingent on gender and not sex. An individual who identifies as a woman must be recognised as a mother, even if she does not give birth in the capacity of a female. Similarly, when a transgender man gives birth, he must be recognised as the child’s father and not the child’s mother. The status of a parent, be it a “mother” or a “father” is an essential aspect of one’s identity. It is for this reason, that such labels must conform with the overall gender identity of an individual.

The law that governs such questions is in no position to comprehend these social realities, but the real question is, will an overhaul of our entire understanding of gender and reproduction be tenable in a cultural setting such that of India?

[1] AIR (2017) 10 SCC 1. [2] Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.