Transgender Adoption in India through Constitutional Equality and Philosophical Perspectives
Keywords:
Adoption, India, constitutional equality, family law, reproductive justice, LGBTQ+ rights.Abstract
The freedom to establish a family represents a critical aspect of autonomy, dignity and the capacity to participate in social relations. Yet the potential to parenthesize through adoption has not been equally distributed across social and legal categories, especially in the case of transgender individuals. Despite the growing recognition of gender identity as an integral aspect of personal dignity in Indian constitutional jurisprudence, adoption legislation remains governed by categories that largely assume binary gender identities and traditional family units. This article critically analyses the legal, social, institutional, and philosophical limitations surrounding adoption by transgender individuals in India. It considers the interplay between the Juvenile Justice (Care and Protection of Children) Act, 2015, the Hindu Adoptions and Maintenance Act, 1956, the Adoption Regulations, 2022, and the constitutional tenets laid down in National Legal Services Authority v. Union of India (2014). The article employs a doctrinal and comparative approach, complemented by an analysis of feminist jurisprudence, queer theory, liberal egalitarianism, intersectionality and the principle of the best interests of the child. Experiences of jurisdictions around the globe, including the United States, the United Kingdom, South Africa and Canada, are analysed to draw out potential areas for legislative and institutional improvements. The paper posits that the issue of transgender adoption raises a broader question with respect to the relationship between legal recognition and the principle of substantive equality. Though the welfare of the child must remain the critical factor that guides every determination with regard to adoption, gender identity should not function as a proxy for the assessment of parental capacity on an individualized basis. The article proposes gender-neutral qualification provisions, administrative reform, professional sensitisation and a rights-based approach that would accommodate diverse family structures without a sacrifice of child protection measures.
References
1. Butler, J. (1990). Gender trouble: Feminism and the subversion of identity. Routledge.
2. Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1989(1), 139–167.
3. Di Battista, S., Shenkman, G., Gato, J., Salvati, M., Pellegrini, V., Paolini, D., De Cristofaro, V., & Tasker, F. (2025). Attitudes toward adoption by transgender adults. LGBTQ+ Family: An Interdisciplinary Journal, 21(3), 267–281. https://doi.org/10.1080/27703371.2024.2427768
4. Goldberg, A. E. (2010). Lesbian and gay parents and their children: Research on the family life cycle. American Psychological Association. https://doi.org/10.1037/12055-000
5. Kelsall-Knight, L., et al. (2024). An international scoping review of empirical research in relation to the recruitment and assessment of LGBTQ+ communities in the adoption process. Health & Social Care in the Community. https://doi.org/10.1155/2024/5451383
6. Mill, J. S. (1859). On liberty. John W. Parker and Son.
7. Rawls, J. (1971). A theory of justice. Harvard University Press.
8. Rich, A. (1980). Compulsory heterosexuality and lesbian existence. Signs, 5(4), 631–660. https://doi.org/10.1086/493756
9. Ross, L., & Solinger, R. (2017). Reproductive justice: An introduction. University of California Press.
10. Sen, A. (1999). Development as freedom. Oxford University Press.
11. Sriraam, S. (2022). Revitalizing adoption laws. Indian Law Review, 6(2), 110–126. https://doi.org/10.1080/24730580.2020.1816705
12. Weston, K. (1991). Families we choose: Lesbians, gays, kinship. Columbia University Press.
13. Indian Legal Authorities
14. Constitution of India. (1950).
15. Hindu Adoptions and Maintenance Act, 1956, No. 78 of 1956 (India).
16. Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2 of 2016 (India).
17. Juvenile Justice (Care and Protection of Children) Amendment Act, 2021, No. 23 of 2021 (India).
18. Adoption Regulations, 2022, G.S.R. 726(E), Gazette of India (2022).
19. Transgender Persons (Protection of Rights) Act, 2019, No. 40 of 2019 (India).
20. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
21. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
22. Supriyo @ Supriya Chakraborty v. Union of India, 2023 INSC 920.
23. International Legal and Policy Sources
24. Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3.
25. Children’s Act 38 of 2005 (South Africa).
26. Yogyakarta Principles. (2007). The Yogyakarta principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity.
27. World Health Organization. (2019). International classification of diseases for mortality and morbidity statistics (11th Revision). https://icd.who.int/
28. Additional Institutional Sources
29. Central Adoption Resource Authority. (n.d.). Adoption regulations and eligibility criteria. Ministry of Women and Child Development, Government of India. https://cara.wcd.gov.in/
30. Ministry of Women and Child Development. (2023). Simplification of the procedure for child adoption. Government of India.
