Right To Adopt Not A Fundamental Right, Prospective Adoptive Parents Can't Demand Their Choice Of Who To Adopt: Delhi High Court

The Delhi High Court has ruled that the right to adopt cannot be raised to the status of a fundamental right within Article 21 of the Constitution of India, nor can it be raised to a level granting Prospective Adoptive Parents (PAPs) the right to demand their choice of who to adopt.

Justice Subramonium Prasad said that there is no right at all to insist on the adoption of a particular child before the final order of adoption is passed by the District Magistrate under the Juvenile Justice (Care and Protection of Children) Act, 2015.

The court made the observations while dealing with a bunch of pleas moved by various PAPs challenging the Office Memorandum issued by CARA last year affirming the decision taken by its Steering Committee Resource Authority implying that all prospective parents with two children, regardless of their date of registration, will not be eligible to adopt a normal child in terms of the Adoption Regulations, 2022 and can only opt for the adoption of a child of special needs, a hard-to-place child or a relatives‟ child and step-children.

The plea thus raised the question as to whether the decision of the Steering Committee Resource Authority and the subsequent Office Memorandum affirming the decision of retrospective application of the Adoption Regulations, 2022, to pending applications of registered prospective adoptive parents is valid.

Rejecting the pleas, the court observed that due heed must be paid to the submissions of the counsel appearing for the authorities behind the policy motivation of reducing the number the number of biological children of PAPs to exclude them from the adoption of a normal child from three to two.

“The long wait for prospective parents including those who are devoid of even one biological child must be seen in the backdrop of a grave mismatch between the number of normal children available for adoption and the number of PAPs in expectation of adopting a normal child. A balanced approach therefore ought to be welcomed which attempts to reduce the wait for parents with a single child or devoid of even that, in anticipation of adoption and the interests of the child while being matched with a family with lesser number of already existing biological children,” the court said.

Justice Prasad took judicial notice of the fact that there are a number of childless couples and parents with one child, who are interested in adopting one more child, will adopt a normal child, whereas the chances of a specially-abled child being adopted is remote.

“This Policy has been brought in only to ensure that more and more children with special needs get adopted. That being the intention of the Policy, the decision taken by Respondent No.2 to make it applicable for pending applications cannot be said to be arbitrary,” the court said.

It concluded that at the pre-referral stage of adoption, no vested right towards the adoption of a normal child has accrued to the Petitioners PAPs retroactive.

“Keeping in view the holistic backdrop within which Adoption Regulations 2022 were introduced, and its operational effect thereof, this court is of the opinion that Regulation 5(7) under question is procedural in nature retroactively,” the court said.

It added: “The adoption process in entirety operates on the premise of welfare of children and therefore the rights flowing within the adoption framework does not place the rights of the PAPs at the forefront. There can be no expectation at the pre-referral stage towards the adoption of a normal child, in the absence of any vested rights of legislative assurance towards consideration for the same.”

Furthermore, the bench ruled that pre 2022 position nowhere stipulated a positive right and a mandate towards PAPs with less than three or more biological children towards being considered for the adoption of a normal category child since it merely provides for a negative right of non-consideration in certain cases, i.e. having three or more pre-existing biological children.

“Any positive right as a corollary as asserted by the Petitioners towards adoption would only accumulate and come into force after the District Magistrate passes a final adoption Order under Section 58(3) read with Section 61 of the Juvenile Justice (Care and Protection of Children) Act, 2015,” the court said.

It added that mere recognition as a suitable PAP which falls out of a procedure established within the statute and the regulations, cannot be stretched to entail a vested right to be placed for consideration towards the adoption of a normal child.

“Therefore, the application of Adoption Regulations 2022 via the impugned decision of the Steering Committee dated 15.02.23 and the subsequent Office Memorandum affirming the same dated 21.03.23 towards already registered PAPs whose rights towards adoption are yet to be solidified within the mandate of the Act, cannot be termed as a retrospective application,” the court said.

Title: DEBARATI NANDEE v. MS. TRIPTI GURHA & ANR and other connected matters

Citation: 2024 LiveLaw (Del) 178

Click Here To Read Order