Giving Same-Sex Marriages Legal Recognition Will Make Laws On Adoption, Surrogacy Unworkable : NCPCR Tells Supreme Court

On the ninth day of the argument in the marriage equality case, the Supreme Court discussed the rights of adoption granted to different family types including people living in live-in relationships and single parents. The bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha dealt with arguments pertaining to welfare of children in the light of demands for legal recognition for same-sex marriages.

Child centric laws are crafted to have welfare of child as paramount: ASG Bhati

Additional Solicitor General Aishwarya Bhati, appearing for National Commission for Protection of Child Rights (NCPCR), flagged concerns about allowing adoption rights for same-sex couples.

She highlighted that the intervention application has been filed by the NCPCR after discussions with various Ministries as well as the Central Adoption Resource Authority (CARA). ASG Bhati's submissions followed three lines of arguments – first, that the basic structure of marriage was a union of a man and a woman; second, gender fluidity was impermissible where cis gender was at the core and that ignoring rationale of valid classification amounted to perpetuating inequality; and third, welfare of children was paramount and could not be exposed even for an iota of compromise or uncertainty.

She argued–

"The fundamental point is that a child can only be naturally born through a heterosexual couple. Therefore, the special significance of recognition of heterosexual marriages cannot be understated. Fathers and mothers both play complimentary roles in upbringing of child. State is justified in treating homosexual and heterosexual unions differently for that purpose...Gender may be fluid but the idea of mother cannot be."

This submission resulted in a discussion between the bench and the ASG on various scenarios in which children were raised in settings other than those involving a biological mother and father. Justice Bhat remarked–

"We've gone beyond motherhood and gone into parenthood. There are single parents too. There is death at child birth, accidents. Likewise you can be adopted children of just the male. It's an evolving scene."

To this, ASG Bhati said that the "ideal mode" was being naturally born to a biological man and a woman and that the law had provided other alternatives for children who did not have that. For instance, in adoption cases, sponsorship was available to only children of widowed, divorced, and abandoned mothers. She added that adoption could not be seen as an alternate to biological birth.

CJI DY Chandrachud interjected–

"Law does recognise that you can adopt for a variety of reasons. You can adopt even if you're capable of biological birth. There's no compulsion of having biological birth. Law recognises that there may be situations apart from this "ideal family" having their own biological children. What happens during pendency of heterosexual marriage and one spouse dies?"

Justice Bhat added–

"Even if you go back to tradition, right of a grandfather to take in adoption the son of the daughter - that is a known notion. It is a part of tradition. To say it's an exception may not be appropriate. There are situations where adoptions take place and thereafter there is biological children. There are many situations where adoption is the norm."

Following this, ASG Bhati argued that her endeavour was to show how the laws for child welfare were centric to the child and not others. When CJI DY Chandrachud asked  if her case was that a right otherwise available to an individual to adopt a child would also be taken away because that individual was in a relationship other than a heterosexual marriage, she replied in an affirmative. The bench then weighed her argument by comparing it with the rights of a live-in heterosexual couple. 

CJI DY Chandrachud asked–

"So if two people are in a live in relationship, even if they're a heterosexual couple, they wouldn't have a right to adopt? But would the right of one of them be taken away because he/she is in a live in relationship?"

One of them can adopt but the only recognised couple is a heterosexual married couple, ASG replied.

Continuing this line of questioning of whether the right of an individual to adopt would be taken away by virtue of the fact that they were in a live in relationship, Justice Kohli asked–

"And then let's say a person per se says that they're not in a live in relationship and subsequently does get into a live in relationship. Then what happens? Will the child be taken back? If a person adopts, will they have to undertake that for the rest of the life they won't be in a live in relationship?"

Answering the questions posed to her, ASG Bhati stated that while there was no such undertaking, even heterosexual couples had to show two years of stable marriage to adopt and even heterosexual live in couples could not adopt as a couple because they had an option to walk out anytime. This in turn would affect the stability of a child. Concluding her arguments, ASG Bhati said–

"Heterosexual couples also don't have rights that equate- a single man and single woman don't have same rights. The architecture of child centric laws is very carefully crafted with child being paramount. Any general declaration with reading 'spouse' instead of 'husband' and 'wife' will make laws related to adoption, assisted reproduction, surrogacy completely unworkable".

Parliament has the capacity and functionality to deal with the matter: Dr Sasmit Patra (BJD Rajya Sabha MP) 

Representing two organisations and also arguing at his personal capacity as a member of Rajya Sabha, Dr Sasmit Patra raised three points – first, concerning the capacity and functionality of parliament; second, on the role of the polity; and third on the impact on public polity due to absence of legislative action. He argued that 42 laws of the country will be affected if the Court makes a declaration in favour of the petitioners.

"42 laws of this country in some way will be affected. 42 laws, 182 amendments, across 19 ministries of country. So for something as mammoth as this, it is parliamentary committee which has capability to deal with the matter."

Stating that even if the court declared a right, he argued that the same could not be executed, without a legislative intervention.

In this context, Solicitor General cited the example of the Colorado baker who was prosecuted after he refused to create a wedding cake for a gay couple. He said–

"Any declaration would bind every individual in the country who is not before your lordships. In case of a law, every individual is represented by his chosen representative...Similar thing happened after the judgement of American court. One pastor refused to perform ceremony of marriage. He was sought to be prosecuted. They had to come out with a law for pastor's Protection. Imagine a situation where your lordships declare the law. Your lordships will not be declaring the contours of regulations. Suppose someone goes to a priest for performing a ritual. Priest says that as per my religion only man and woman can perform that ritual and i won't be party to this. Would he not be in contempt of declaration of this court?"

He added that whenever a declaration was made by legislature, legislature had the power to regulate the fall out. However, the court would not be able to foresee and thereafter deal with the said fall out. He also informed the bench that the Centre had written letters to the state governments. There were 7 responses from Manipur, Andhra Pradesh, Uttar Pradesh, Maharashtra, Assam, Sikkim, and Rajasthan. While Rajasthan opposed to the position of petitioners, the rest stated that the issued needed debate.

Those constituting the norm should be allowed to participate in the proceedings: Advocate J Sai Deepak

Advocate J Sai Deepak, representing a women's organisation, argued that the nature of the prayers raised in the petitions had the consequence of individualising the "social institution" of marriage. Stating that he believed that the petitioners had a cause, but did not have a case, he argued that it was important for those who constituted the "norm" to be allowed to participate in the proceedings. He added–

"Those who are interested in convincing the society are expected to engage with the rest of the society to make good their cause. The judiciary cannot be a substitute to this process."

He further submitted that in the Hindu law the object of dampatiya was procreation and the same could not be ignored. Concluding his submissions, he added–

"Yogyakarta Principles specifically leaves it to countries to decide if they wish to have recognition in respect of marital relations. There are other issues to be dealt with. Having engaged with transgender activists and having worked with them, I know that one of the biggest problems is trafficking- them being pushed into prostitution, not having livelihoods. These issues have to be addressed first before we take the next step."