Right to adopt is not a fundamental right, says Delhi high court

The right to adopt is not a fundamental right, nor do prospective adoptive parents have the right to choose whom to adopt, the Delhi high court has held, adding that adoption is premised on the welfare of children and does not place the rights of prospective parents at the forefront.

“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 (prospective adoptive parents) the right to demand their choice of who to adopt,” justice Subramonium Prasad said in the February 16 order. “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 court made these observations while dealing with batch of pleas filed by several prospective parents with two biological children and wishing to adopt a third child. These pleas challenged a decision of the Central Adoption Resource Authority that affirmed the retrospective application of the Adoption Regulations of 2022.

These rules mandate that couples with two or more children can only adopt children with special needs, hard to place, or unlikely to be adopted because of physical or mental disability, emotional disturbance, recognised high risk of physical or mental disease, age, and racial or ethnic factors.

The petitioners appearing through advocate Mrinalini Sen contended that such retrospective application was arbitrary and violative of Article 14 (equality before law), adding that the right to adoption is a statutory right and rights of children to be given for adoption goes hand in hand with the right of the parents to adopt.

The restriction was introduced in the regulation against the backdrop of the grievances of the long list of waiting parents who do not have any children, argued Arunima Dwivedi, standing counsel for the Centre.

The court, while upholding the retrospective application of the law, remarked that the law aimed to ensure adoption of children with special needs. Childless couples and parents with one child who would adopt a “normal child” while the chances of a specially abled child being adopted was remote, justice Prasad said.

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“This Court can take judicial notice of the fact that there are a number of childless couples and parents with one child, who are interested in adopting one more child, and will adopt a normal child, whereas the chances of a specially-abled child being adopted is remote. This policy has been brought in only to ensure that more and more children with special needs get adopted,” the court said in the order uploaded on Monday.

“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,” the order added.

“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 judge said in the 41-page order.