Right To Adopt Not A Fundamental Right, Prospective Adoptive Parents Can't Demand Their Choice Of Who To Adopt: Delhi High Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Delhi High Court has ruled that the right to adopt cannot be raised to the status of a fundamental right within Article 21 of the Constitution of India, nor can it be raised to a level granting Prospective Adoptive Parents (PAPs) the right to demand their choice of who to adopt.

Justice Subramonium Prasad said that there is no right at all to insist on the adoption of a particular child before the final order of adoption is passed by the District Magistrate under the Juvenile Justice (Care and Protection of Children) Act, 2015.

The court made the observations while dealing with a bunch of pleas moved by various PAPs challenging the Office Memorandum issued by CARA last year affirming the decision taken by its Steering Committee Resource Authority implying that all prospective parents with two children, regardless of their date of registration, will not be eligible to adopt a normal child in terms of the Adoption Regulations, 2022 and can only opt for the adoption of a child of special needs, a hard-to-place child or a hard-to-place child or a relatives‟ child and step-children

The plea thus raised the question as to whether the decision of the Steering Committee Resource Authority and the subsequent Office Memorandum affirming the decision of retrospective application of the Adoption Regulations, 2022, to pending applications of registered prospective adoptive parents is valid.

Rejecting the pleas, the court observed that due heed must be paid to the submissions of the counsel appearing for the authorities behind the policy motivation of reducing the number the number of biological children of PAPs to exclude them from the adoption of a normal child from three to two.

“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 said.

Justice Prasad took 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, 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. That being the intention of the Policy, the decision taken by Respondent No.2 to make it applicable for pending applications cannot be said to be arbitrary,” the court said.

It concluded that at the pre-referral stage of adoption, no vested right towards the adoption of a normal child has accrued to the Petitioners PAPs retroactive.

“Keeping in view the holistic backdrop within which Adoption Regulations 2022 were introduced, and its operational effect thereof, this court is of the opinion that Regulation 5(7) under question is procedural in nature retroactively,” the court said.

Case Title: DEBARATI NANDEE v. MS. TRIPTI GURHA & ANR and other connected matters