GS Paper II

News Excerpt:

Recently Delhi High Court (HC) stated that the right to adopt a child is not a fundamental right under Article 21 of the Constitution and the prospective adoptive parents (PAPs) do not have any right to choose who to adopt.

What Delhi HC has stated in the matter:

• The HC upheld the retrospective application of a regulation permitting couples with two or more children to adopt only children with special needs or those hard to place.
• The right to adopt cannot be raised to the status of a fundamental right within Article 21 nor can it be raised to a level granting PAPs the right to demand their choice of who to adopt. 
• The adoption process entirety operates on the premise of the welfare of children and therefore the rights flowing within the adoption framework do not place the rights of the PAPs at the forefront.
• A balanced approach ought to be welcomed which attempts to reduce the wait for parents with a single child or devoid of even that.
• The court said there was "no right at all" to insist on the adoption of a particular child and the petitioners' claim that a "vested right" retrospectively taken away was not good in law.

Background of the case:

• The court's decision came on a batch of petitions by several PAPs with two biological children who applied for the adoption of a third child as per the Juvenile Justice (Care and Protection of Children) Act, 2015.
• During the pendency of their application, the Adoption Rules, 2022 superseded the Adoption Regulations, 2017.
• Now instead of three or more children, couples with two or more children could only opt for adoption of children with special needs or those “Hard to Place” children unless they are relatives or step-children.
• “Hard to Place children” are those that are not likely to be adopted because of physical or mental disability, emotional disturbance, recognised high risk of physical or mental disease, age, racial or ethnic factors etc.
• The petitioners contended that retrospective application of the Adoption Regulations 2022 was arbitrary and violative of Article 14 (equality before law) of the Constitution.

Main Eligibility criteria for prospective adoptive parents:

• The PAPs shall be physically, mentally, emotionally and financially capable, they shall not have any life-threatening medical condition and they should not have been convicted of a criminal act of any nature or accused of any case of child rights violation.
• Any PAPs, irrespective of their marital status and whether or not they have biological son or daughter, can adopt a child subject to following, namely:-

1. 1. The consent of both spouses for the adoption shall be required, in case of a married couple;
   2. A single female can adopt a child of any gender;
   3. A single male shall not be eligible to adopt a girl child;

• No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption.
• The age criteria for PAPs shall not be applicable in case of relative adoptions and adoption by step-parent.
• The PAPs have to revalidate their Home study report after a period of three years.
• The seniority of the PAPs who have not received a single referral within three years shall be counted from their date of registration except those who have crossed composite years of one hundred and ten years.