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It is not unknown to us that Covid-19 has devasted the families of thousands. Many children got orphaned and abandoned. Since April 1, 2020, the NCPCR data shows that 1,47,492 children have lost their parents due to Covid-19. However, we all know that the real figure might be more than what has actually been found by the NCPCR. Further, this has increased child trafficking, especially of girl children. However, the total figure of orphans and abandoned children is really surprising. It was found in 2021 that there are more than 30 million orphaned and abandoned children in India -  almost 4% of the youth population. All these children are eagerly waiting for their new parents. Although the government cannot force people to adopt any child, it possesses the stick to mitigate the pain of these children.

Well, with an almost equal number of couples who want a child and children who need a home, the adoption rates should be higher, but due to the complicated adoption process and skewed views of adoption as a whole, most children are left to fend for themselves. One of them is that homosexuals cannot marry and thus, they cannot adopt.

But, the Government now has the option to provide the luxury of having children to homosexuals and the luxury of having parents to orphans by tearing down the colonial idea that only opposite-gender people can marry each other. The Juvenile Justice Act, 2015 and Adoption Regulations, 2017 lays down a requirement that “no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship”. Since homosexuals cannot marry, there is no possibility of having any stable marital relationship. Sadly, this policy deprives both homosexuals to adopt a child and orphans to have the affection and love of parents.  

The precedents have made us realize that the government should allow adoption as much as possible meaning thereby allowing the adoption to all. The Supreme Court of India observed in the case of Lakshmi Kant Pandey v. Union of India that “every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would, of course, be that of the family of his biological parents. But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents. The adoptive parents would be the next best substitute for the biological parents”.  Thus, rather than letting orphans grow up in an orphanage or an institution where they will have no family life and no love and affection from parents, they should be allowed to get adopted by homosexuals who are prepared to give them the love they crave.

Further, the court also observed that given the socio-economic conditions prevailing in our country, the orphan might have to lead a life destitute, half-clad, half-hungry, and suffering from malnutrition and illness. Thus, adoption is necessary. Additionally, the same was pointed out by an Expert Group met in Geneva in December 1978 whereby it held that when biological family care is unavailable, substitute family care should be considered (Article 4 of  Draft Declaration on social and legal principles relating to the protection and welfare of children with special reference of foster placement and adoption, nationally and internationally).

            So, it is clear that the best policy for any nation is to allow adoption as much as possible. Getting oneself adopted, although, is not a constitutional right, yet, this right can be said to be implied in the Constitution. Article 39(f) of the Constitution, which is a Directive Principle, directs the government to draw policies so as to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.

            So far as the issue of letting homosexuals marry is concerned, the Supreme Court in the case of Hotel & Restaurant Association & Anr. V. The State of Maharashtra has held that the State cannot thrust its own notion of morality on society. So, the government has to now pull down its colonial-era policy that homosexuals cannot marry. Even if the government does not allow homosexuals to marry, the government should allow homosexuals to at least adopt children as leading a respectful and happy life under same-sex parents is way better than a life with hunger and illness.

            No doubt, India is one of the youngest countries in the world – it is projected that by 2050, half of the world’s population growth will come from nine countries including India. For any country, children are the future capital, an asset, that needs to be nurtured if the demographic dividend is to be truly reaped. The government needs to stop placing a blur filter on the 30 million orphaned and abandoned children and bring them into focus by urgently realigning its childcare policies to give them a chance at a life of opportunities, or risk wasting them altogether.