“Right To Adopt Child Not Fundamental Right”: Delhi High Court

The Delhi High Court on Tuesday has stated that the right to adopt a child can’t be raised to the status of a fundamental right under Article 21 of the Constitution and the prospective adoptive parents don’t have any right to choose who to adopt.

Justice Subramonium Prasad upheld the retrospective application of a regulation permitting couples with 2 or more children to only adopt children with special needs or those hard to place, adding that the process operates for the welfare of children and the rights of prospective adoptive parents can’t be put at the forefront.

The court in a recent order stated, ”The right to adopt can’t 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 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.”

The judge noted, there is a long wait for adoption and there are many childless couples and parents with single child who would adopt a ”normal child” but the chances of a specially-abled child being adopted are remote and the regulation therefore only aims to ensure that more & more children with special needs get adopted.

The court added that, ”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’s decision came on a batch of petitions by several PAPs with 2 biological children who applied for adoption of a 3rd child as per the Juvenile Justice (Care and Protection of Children) Act, 2015.

However, during the pendency of their application, the Adoption Rules, 2022 superseded the Adoption Regulations, 2017 and instead of 3 or more children, now couples with 2 or more children could only opt for adoption of children with special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, recognized 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 violation of Article 14 (equality before law) of the Constitution.

In the order dismissing the petitions, the court stated that there was ”no right at all” to insist on the adoption of a particular child and the petitioners’ claim that a ”vested right” has been retrospectively taken away wasn’t good in law.

The court stated, ”The policy of the legislature, therefore, is that the rush of a number of couples, who already have more than 4 children, who are available to adopt a child was felt in the year 2015. The stated figure of 4 was brought down to 3 in the year 2017 and the same has now been brought down to 2 in the year 2022. This indicates that there is no right amongst the PAPs to insist on the child whom they want to adopt till the adoption doesn’t go through. The change is only in the eligibility criteria.”

It added the registration of the petitioners as PAPs was still intact and they were within the zone of consideration towards adoption of a special needs child, hard to place children and children of relatives or step children.