Right to adopt child not fundamental right: Delhi High Court

The right to adopt a child cannot be raised to the status of a fundamental right under Article 21 of the Constitution, the Delhi High Court has said. Nor do prospective adoptive parents have any right to choose who they adopt.

Justice Subramonium Prasad upheld the retrospective application of a regulation permitting couples with two 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 that the rights of prospective adoptive parents (PAPs) cannot be put ahead of the children's welfare.

'The right to adopt cannot 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,' said the court in a recent order.

The judge noted that there is a long wait for adoption, yet there are many childless couples and parents with one child who would adopt only a "normal child". However, the chances of a disabled child being adopted are remote—and the regulation therefore only aims to ensure that more and more children with special needs get adopted.

The court said: '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,' the court added, '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 in response to a batch of petitions by several PAPs with two biological children who had applied for the adoption of a third child as per the Juvenile Justice (Care and Protection of Children) Act, 2015.

During the pendency of their application, the Adoption Rules, 2022, superseded the Adoption Regulations, 2017. Instead of three or more children, now couples with two or more children could only opt for adoption of children with special needs or children who are considered "hard to place". The exception would be children who are relatives or step-children of the adopting adults.

"Hard to place" children are those who are less likely to be adopted because of physical or mental disability, emotional trauma, a recognised high risk of physical or mental disease, older age, racial or ethnic factors, etc.

The petitioners contended that retrospective application of the Adoption Regulations 2022 was arbitrary and violative of Article 14 (equality before law) of the Constitution.

In the order dismissing the petitions, the court said 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 was not 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 four children, who are available to adopt a child was felt in the year 2015. The said figure of four was brought down to three in the year 2017 and the same has now been brought down to two 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 does not go through. The change is only in the eligibility criteria.'

It added that 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 any children of relatives or step-children.