The Delhi High Court clarified that the right to adopt children is not a fundamental right. It upheld restrictions placed on adopting a “normal child” for parents who already have two children. This decision was made in response to amendments to the Adoption Rules under the Juvenile Justice (Care and Protection of Children) Act of 2015. The court supported the policy changes aimed at encouraging the adoption of children with special needs. This ruling clarifies that adoption regulations are procedural and retroactive, but not retrospective.
New Delhi: The Delhi High Court clarified that the right to adopt children is not a fundamental right. The court upheld amendments to the Adoption Rules under the Juvenile Justice (Care and Protection of Children) Act of 2015. These changes bar parents from adopting a ‘normal child’ if they already have two children.
Justice Subramonium Prasad upheld the decision of the Steering Committee of the Central Adoption Resource Authority (CARA), which stipulates that even prospective adoptive parents (PAPs) with pending applications before the law changes cannot adopt a normal child if they already have two children. The court reasoned that the policy change aims to encourage the adoption of children with special needs. Therefore, extending this policy to pending applications is not arbitrary.
Furthermore, Justice Prasad emphasized that the right to adopt cannot be elevated to the status of a fundamental right under Article 21 (right to life and liberty). However, it does grant PAPs the right to choose whom to adopt.
“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 that 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 a lesser number of already existing biological children,”
the Court said.
The court concluded that the Adoption Regulations 2022 are procedural, retroactive, but not retrospective. Further, the court clarified that the definition of “normal child” refers to a child without any disability as defined by the Rights of Persons with Disabilities Act.
Background
The case involved petitions from prospective parents with two children seeking to adopt a third child. They had applied for adoption through CARA under Regulation 5(8) of the 2017 Adoption Regulations, been identified as PAPs, assigned registration numbers, and placed on the waiting list.
The Adoption Rules, 2022, were notified by the Ministry of Women and Child Development on September 23, 2022, replacing the 2017 Regulations.
Under the 2017 Rules, couples with three or more children are not eligible for adoption, except in specific cases. However, the new rules only allow couples with two or more children to adopt special needs or hard-to-place children unless they are relatives or stepchildren.
On February 14, 2023, CARA’s Steering Committee decided to apply the changes retrospectively to all applications received and registered before the passage of the Adoption Rules, 2022.
The petitioners were represented by advocates Priya Kumar, Mrinalini Sen, Kabir Harpalani, Tejas Chhabra, Madhawi Agarwal, Kaif Khan, and others.
The Central Government Standing Counsels (CGSC), Arunima Dwivedi, Rakesh Kumar, Manisha Agrawal Narain, and other advocates represented CARA and the Union of India.
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Among other arguments, parents contended that the retrospective application of the rules violated Article 14 of the Constitution.
“It is also concluded that at the pre-referral stage of adoption, no vested right towards the adoption of a normal child has accrued to the petitioners retroactively.”
Justice Prasad said.
Justice Prasad considered the arguments and concluded that PAPs have no right to adopt a normal child if they already have two children. He explained that the 2022 law merely changes eligibility criteria and does not retroactively affect parental adoption rights under the Juvenile Justice Act.
“This Court is not inclined to entertain the present writ petitions. Resultantly, the writ petitions are dismissed along with pending application(s), if any.”
The court finally ordered.
CASE TITLE: Debarati Nandee v Union of India & Anr. and other Connected matters
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