Why recognising and prioritising children in the same-sex marriage debate is important

Best interest of children is the fundamental principle that must remain at the centre of our choices and actions, more so where children are at the core of the consequences of such choices. India has always recognised and upheld welfare and rights of children as paramount and has exhibited this through various policies, schemes and legislations. However, the ongoing debate on same-sex marriage is an instance where the legal ecosystem of protection of children is facing uncertainty that will have huge consequences on welfare of the population below 18 years of age. As we know, the State regulates several aspects that are inherent to the wholesome and protective rearing and raising of children. There is a comprehensive structure of statutes, rules, regulations, guidelines, and policy interventions which ensure the protection of children during their vulnerable and impressionable years, strongly connected with the ecosystem of rights such as inheritance, succession, maintenance, custody, that derive from their mothers and fathers and their respective families. A single stroke of doubt and ambiguity in this carefully designed network of rights will have direct repercussions for the effectiveness of these Laws and policies. One such legal provision that will have a direct impact on its applicability is that of adoption of a child by an individual or a couple. Merely amending the Special Marriage Act and allowing adoption will create ambiguity with reference to other legal provisions of adoption and custody of the children. First, the much-propagated concept of gender fluidity gives an individual a right to associate themselves with the desired gender which may be something else at the time of marriage and might get different at the time of separation. This may lead to various repercussions with respect to the Law related to Custody. This would also have implications for safety of children in different settings besides at home. Related incidents have been in news wherein a male child identifying as a female allegedly assaulted a girl child in the school bathroom. The child was observed to be wearing skirt at times. This situation of uncertainty caused due to gender fluidity can also occur in the cases of parents where one of the parents will have an opportunity to disassociate themselves with the gender identity which they associate with. Further, even if gender is seen as fluid, the idea of mother is not and hence the benefit under many of the Laws or legal provision including the Constitution of India, Juvenile Justice Act, 2015 and the Maternity Benefit Act, 1961 are limited to the definition of mother which is not as certain in the relationship of same sex couple. For instance, Article 42 of Constitution of India under Directive Principles of State Policy obligates the State to mandatorily make provision for maternity relief by stating that “The State shall make provision for securing just and humane conditions and for the maternity relief”. Similarly, Section 45 of the Juvenile Justice Act, 2015 defines ‘Sponsorship’ which gives a right to a widowed/divorced/abandoned mother to obtain sponsorship for her children. In the absence of a definite designation of a mother in the relationship of a same-sex couple, there will be a situation wherein the couple won’t be able to avail under such provision and the right of child will again be jeopardised. Now coming to the right to family for the orphan, abandoned and surrendered children. The United Nations Convention on the Right of Child (UNCRC) obligates the State to make sure that the adoption of the child shall be ensured by keeping various crucial safeguards. Article 4 of UNCRC mentions a safeguard wherein it specifies that the State shall undertake maximum efforts to ensure that the child when given in adoption is ensured maximum social and cultural rights. Allowing same-sex couples to adopt is neither a fundamental right, nor is it enlisted in the UNCRC, Hindu Adoption and Maintenance Act, 1956 or any of the principles specified in the Juvenile Justice Act, 2015. The same have not been mentioned, accepted or recognised in the codified or traditional personal Laws. Similarly, a child before getting orphan, abandoned or surrendered is raised in a certain natural atmosphere which is of a distinctive socio-cultural environment and shifting the whole realm of the child by placing him/her in a completely different scenario will defeat the purpose of adoption. Further, the purpose of adoption is to provide a child with a family which can give him the same socio-culture environment as is inherent in him. A child is naturally born by a heterosexual couples and the preference to take adoption by another heterosexual couples cannot be abrogated. This proposition is enriched in Fundamental Principle of various National and International instruments. The Juvenile Justice (Care and Protection of Children) Act, 2015, in its Chapter II, lays down “General Principles of Care and Protection of Children”, wherein the Fundamental Principles are enriched as a guiding force for the implementation of the Act. Principle 4 of the said Act states that “All decisions regarding the child shall be based on the primary considerations that they are in the best interest of the child and to help the child to develop full potential”. Therefore, accepting a borrowed concept having no roots in our country and permitting the State to place a child for adoption with same-sex couples would deprive children from their social and cultural rights. In the same way, foster care is another provision under the Juvenile Justice Act, 2015 that allows alternate care for a child in the domestic environment of a family. Article 20 (3) of the UNCRC also talks about the duty of the State to provide special protection and assistance to the child by providing care including foster care or as prescribed under the personal Law of such child. However, it provides for care of children with due regard to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. It is important to emphasise here that a child born to a heterosexual pair is innately adaptable towards a similar family environment and naturally/inherently seeks out a family environment that is comparable to that of his or her biological parents. Therefore, it can be said that keeping a person in his natural familiar environment is deemed to be in the best interest of the child and is most suitable to his/her natural adaptive nature. The National Policy for Children adopted in 2013 also recognises that all children have the right to grow in a family environment, in an atmosphere of happiness, love and understanding and considers family or family environment to be most conducive for a child calling for efforts to keep the child in such an environment. The importance of providing a child with same socio-economic and cultural status is also reflected in the Principle of Repatriation and Restoration under the Juvenile Justice Act, 2015 which acknowledges the that every child in the juvenile justice system have the right to be re-united with his family at the earliest and to be restored to the same socioeconomic and cultural status that he was in, unless such restoration and repatriation is not in his best interest”. Therefore, whether it is question of providing care and protection to children through mechanism such as foster care or putting them in care of a family through adoption, a child being minor is presumed to be innocent and till certain age they lack sufficient understanding to make a rational decision for themselves. It is the State that is duty bound, through the mandate of UNCRC and under the law of the land, to provide the best growing environment to the child. Making such right available to same sex married couples will not only violate the fundamental rights of children but will also open up a new and susceptible environment that is not natural to the child. The State is duty bound to impose reasonable restrictions to protect the welfare of all its children, and to ensure that each child has the best possible environment and opportunity to be born, nourished, raised, and educated in a stable, dependable, and accountable environment with the certainty of the Law. The is Chairperson, National Commission for Protection of Child Rights (NCPCR), New Delhi. Views are personal. Read all the Latest News , Trending News , Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.