INTRODUCTION
In the past decade, India has seen a paradigm shift in family laws. The recognition of homosexuality as legal in Navtej Singh Johar v Union of India[1], charted a new course in the Family Law of India. Since then, the LGBTQIA+ community has time and again demanded more rights, including the right to marriage, adoption, and surrogacy. Although decriminalisation of homosexual acts was a bold step, the rainbow community still faces a backlash from the Indian society. They have been granted the right to stay together, but they still yearn for the right to create a family. This legal lacuna continues to deprive queer couples of the ability to fully experience the joy of family and parenthood, despite their emotional readiness.
This blog is an attempt to explore the prevailing laws regarding surrogacy and adoption in India and to identify and address the gaps in the current legislation while providing suggestions to curb the same.
CURRENT LEGISLATION RELATING TO SURROGACY AND ADOPTION IN INDIA
Adoption in India is primarily governed by two legislations, viz., the Hindu Adoption and Maintenance Act, 1956[2] (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015[3] (JJ Act). HAMA serves as the principal legal framework for adoption among Hindus, which includes Sikhs, Jains, and Buddhists as per Section 2(1)(b) of the Hindu Marriage Act, 1955.[4] The Act recognises adoption only by a single individual or heterosexual couples. Homosexual couples are excluded due to the heterosexual understanding of male and female in the act.[5] Thus, the act, due to its historic framing, still does not include same-sex couples within its ambit.
The JJ Act allows adoption by married couples and employs the gender-neutral term spouse, but in a recent judgment by the Supreme Court[6], same-sex marriage is not validated, and hence, same-sex couples do not fall under the definition of married couples. Hence, they are denied adoption rights under the Child Adoption Resource Authority’s Regulation 5(2)(a).[7]
Justice Bhat, in the Supriyo case,[8] highlighted that married couples are in no way a superior choice when it comes to adoption. He emphasised that the adoption framework is designed in such a manner to promote the ‘best interests of the child’. He also gave his interpretation of Section 57(2) of the JJ Act, 2015,[9] stating that it pertained absolutely to married couples. He stated that the law was intended to safeguard the “best interest of the child” in situations where a marriage had collapsed.[10] The above legislations, in this manner, restrict the right of homosexual couples to adopt.
Surrogacy in India is predominantly regulated under the Surrogacy (Regulation) Act, 2021[11]. It allows an intending married couple or an intending woman who is unable to reproduce naturally can opt for altruistic surrogacy. Therefore, the eligibility criteria for an intending couple include a married couple.[12] Thus, homosexual couples are outrightly excluded from this definition because of the non-recognition of same-sex marriages. Therefore, they are denied the right to raise children through surrogacy as well. The law reflects an outdated assumption that only heterosexual married couples can be ideal parents.
REASONS BEHIND THE EXCLUSION OF THE QUEER COMMUNITY
The exclusion of LGBTQ+ individuals from adoption and surrogacy rights is rooted in multiple legal, social, and cultural factors:
- Heteronormative Legal Interpretation:
Indian laws continue to be interpreted within the binary of heterosexual marriage. Despite the decriminalisation of same-sex relations in the Navtej Singh Johar judgement[13], which recognised the rights and dignity of same-sex individuals, the Surrogacy Act and CARA guidelines, along with the JJ Act, remain unamended. These laws are based on the assumption of a family consisting of a mother and a father in a heterosexual marriage.
- Non-recognition of Same-Sex Marriage:
The Special Marriage Act of 1954[14] and the Personal Laws of India do not legally recognise same-sex marriages. Consequently, legal rights and entitlements that flow from marital status, including joint adoption and surrogacy, are inaccessible to queer couples. The Supreme Court in the Supriyo Chakraborty case also ruled against same-sex marriage, but it still acknowledged the discrimination faced by same-sex couples and deferred the matter of rights and entitlements to the legislature. This judicial restraint, while constitutional in theory, has real-world consequences for queer families.
- Societal and Institutional Bias:
The assumption that children need both a male and female parental figure has influenced judicial and legislative thinking. LGBTQ+ parents are often subjected to moral scrutiny rather than assessed on their parenting capabilities. CARA’s guidelines and the Surrogacy Act reflect these biases, often influenced by conservative family values and political ideologies.
PATH FOR INCLUSION
Excluding same-sex couples from adoption and surrogacy is not just a legislative shortcoming but a violation of their constitutional rights to equality, non-discrimination, and dignity under Articles 14, 15, and 21.[15] A reformative approach must centre both rights and the welfare of the child.
- Amend Surrogacy and Adoption Laws:
The Surrogacy (Regulation) Act, 2021,[16] The HAMA, 1956,[17] The JJ Act, 2015,[18] and the CARA Guidelines require immediate reform. They must be made gender-neutral and inclusive, recognising homosexual couples.
For example, the term “intending couple” in the Surrogacy Act should be redefined to include “any two persons in a committed relationship,” regardless of sexual orientation. Similarly, the requirement of being “married for five years” should be removed to allow diverse families to access reproductive services. In addition to this, the HAMA, 1956,[19] should also be amended to be more inclusive, which recognises the right of homosexual couples to adopt.
- Judicial Interpretation of “Family”:
Courts can play a transformative role. In Deepika Singh v Central Administrative Tribunal[20] the Supreme Court expanded the constitutional understanding of “family” to include non-traditional units. The judgment affirmed that family structures are not limited to traditional norms and may consist of domestic, unmarried, and queer relationships. Accordingly, this understanding should be applied to broaden the scope of parental rights to include LGBTQ+ individuals.
- Recognise Same-Sex Unions:
Even in the absence of full marriage equality, the legislature can recognise civil unions or domestic partnerships to grant same-sex couples access to adoption, inheritance, and parenting rights. Countries like South Africa, Israel, and parts of the U.S. offered civil union frameworks before full marriage equality, enabling incremental recognition of queer families. India can adopt a similar approach in the interim.
- Focus on the Child’s Best Interest:
The maxim of parens patriae compels the State to act in the best interest of children. If a child can thrive in a loving home with two parents, regardless of gender or sexual orientation, then denying such a possibility on narrow moral grounds is unjust. Senior Advocate Dr Menaka Guruswamy, representing the Delhi Commission for Protection of Child Rights (DCPCR) in the Supriyo case,[21] referred to a statement by the Indian Psychiatric Society, a body comprising over 7,000 psychiatrists across India. She highlighted that the Society found no evidence suggesting that LGBTQIA+ individuals are unfit to raise children. On the contrary, it emphasised that discrimination faced by children of queer couples could contribute to the development of mental health issues.[22]
CONCLUSION
Queer couples in India today face a paradox: while they may love freely, they cannot legally build a family. The denial of adoption and surrogacy rights creates a systemic inequality that affects not only LGBTQ+ persons but also the children who could benefit from loving homes.
Reforming India’s adoption and surrogacy laws to include same-sex couples is not just a matter of LGBTQ+ rights—it is a commitment to equality, non-discrimination, and human dignity. As society evolves, so must the law. A family is not defined by gender, but by love, care, and commitment. Until Indian law recognises that, queer couples will remain parents at heart, not by law.
Author(s) Name: Gannavarpu Rajlakshmi (National Law Institute University, Bhopal)
References:
[1] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[2] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
[3] The Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
[4] The Hindu Marriage Act, 1955 (25 of 1955) s 2(1)(b).
[5] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) s 7, 8.
[6] Supriyo @ Supriyo Chakraborty v Union of India 2023 SCC OnLine SC 1348.
[7] The Adoption Regulations, 2022, G.S.R. 726(E) Part II—Sec. 3(i), The Gazette of India reg 5(2)(a).
[8] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) s 7, 8.
[9] The Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) s 57(2).
[10] Padmakshi Sharma, ‘Marriage Equality Case | No Right For Queer Couples To Adopt Children, Supreme Court Holds By 3:2 Majority’ (Live Law, 17 October 2023)
<https://www.livelaw.in/top-stories/marriage-equality-case-no-right-for-queer-couples-to-adopt-children-supreme-court-holds-by-32-majority-240359> accessed 25 June 2025.
[11] The Surrogacy (Regulation) Act, 2021 (47 of 2021).
[12] The Surrogacy (Regulation) Act, 2021 (47 of 2021) s 4(iii)(c)(I).
[13] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[14] The Special Marriage Act, 1954 (43 of 1954).
[15] The Constitution of India, 1950 arts 14, 15 and 21.
[16] The Surrogacy (Regulation) Act, 2021 (47 of 2021).
[17] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
[18] The Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
[19] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
[20] Deepika Singh v Central Administrative Tribunal (2023) 13 SCC 681.
[21] The Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) s 7, 8.
[22] Padmakshi Sharma, ‘Marriage Equality | Studies Show No Adverse Impact On Children Raised By Queer Couples: Dr Menaka Guruswamy Submits Before Supreme Court’ (Live Law, 11 May 2023)
<https://www.livelaw.in/top-stories/supreme-court-same-sex-marriage-adoption-queer-couples-menaka-guruswamy-228523> accessed 26 June 2025.