Indian child rights bodies clash over same-sex marriage and adoption: Examining evidence from around the world to resolve the debate

During the ongoing marriage equality hearings before the Supreme Court of India, a significant issue emerged that resulted in two statutory bodies, responsible for the welfare and protection of children, holding vastly different views.

On April 3, 2023, the Delhi Commission for Protection of Child Rights (DCPCR) - a statutory body constituted under the Commissions for Protection of Child Rights Act, 2005 to monitor the implementation of, and check violations against, the rights of children within the NCT of Delhi - filed an intervention application before the Supreme Court. The DCPCR urged the Court to not only legalize same-sex marriage, but to also grant adoption rights to same-sex couples, as it would be in the best interest of children.

The submission by DCPCR highlighted that various studies have shown that same-sex couples can be equally good parents as heterosexual parents. They contended that there is no inherent advantage or disadvantage for same-sex couples in terms of being better or worse parents. Rather, what determines the success of parents is the capacity for caring and the quality of the relationship between the parent and child.

Therefore, legalizing same-sex marriage and granting adoption rights would not only alleviate the discrimination that same-sex couples face, but also ensure that both the couples and the children have the opportunity to live fulfilling lives.

On the other hand, the National Commission for Protection of Child Rights (NCPCR), another statutory body constituted by the Government of India under the same Act, filed an opposing intervention application before the Supreme Court. The NCPCR argued that the Court should not consider legalizing same-sex marriage because “allowing adoption to same-sex couples is akin to endangering the children."

Both the DCPCR and the NCPCR cited studies to substantiate their claims. However, it is odd that despite the prevalence of multiple studies on this subject, there seems to be a lack of consensus on this issue and a lack of clarity from two very important and powerful statutory bodies with the same goal of protecting children. This discrepancy raises questions about the methodology and interpretation of these studies, as well as the underlying biases that may inform the positions of these bodies.

Global studies on same-sex couple adoption

In recent decades, there has been a significant shift in the legal recognition of same-sex partnerships across the world. In 1989, Denmark became the first country to enact a law allowing for same-sex partnership registration, paving the way for similar legislation across Europe and beyond. The legal recognition of same-sex relationships, such as registered partnerships or civil unions, has been a crucial step towards advancing equal marriage rights for sexual and gender minorities.

As of 2022, over 34 countries and territories have legalized same-sex marriage, providing a legal framework for sexual minority couples to conceive, bear and raise children. This legal recognition establishes favourable conditions for children to flourish and grow up with supportive parents, regardless of sexual orientation or gender identity. However, same-sex families still face many challenges worldwide due to stigma, discrimination and negative stereotypes.

The impact of a parent's sexual orientation on family outcomes remains a controversial topic in social, cultural, political and legal circles. A comprehensive review of 23 empirical studies conducted between 1978 and 2000, including studies from Belgium, Netherlands, Denmark, Britain, and North America, analyzed non-clinical children raised by lesbian mothers or gay fathers. In total, the studies examined 615 offspring (aged 1.5-44 years) of same-sex parents and 387 controls, using psychological tests, questionnaires and interviews. The results found that children raised by same-sex parents did not differ from other children in any of the outcomes measured, suggesting that they do not experience adverse effects.

Moreover, in recent years, there has been a significant increase in the number of children being raised by queer couples in places where same-sex marriage is legal. According to a 2018 report published by the Williams Institute, a research centre on sexual orientation, gender identity law, and public policy, it was found that same-sex couples in the USA were seven times more likely than different-sex couples to be raising an adopted or foster child. At the time of the study, which collated data from the 2014-2016 American Community Survey, around 114,000 same-sex couples were currently raising children.

Similarly, a 2017 study published by the American Psychological Association applied the fixed-effects, random-effects, and quality-effects models of meta-analysis to evaluate child psychological adjustment by parent sexual orientation. The study included ten other studies from 2007-2017, both within and outside of the United States, with a range of child ages and sample sizes. The results indicated that children of gay fathers had significantly better outcomes than children of heterosexual parents in all three models of meta-analysis. These results may be attributable to a potentially higher socio-economic status for gay fathers - which is traditionally associated with dual-earner households - better preparedness for fatherhood in the face of strong anti-gay stigma directed at same-sex families and more egalitarian parenting roles. The results suggested that children of gay fathers have better outcomes than children of heterosexual couples.

Additional research shows that children raised by same-sex parents do just as well, if not better, than those raised by heterosexual parents. Studies conducted on 200 families in the Netherlands and 130 families in the United States found no significant differences in family structure and functioning between different family types, in which same-sex parents actually reported higher levels of satisfaction compared to heterosexual parents.

Longitudinal studies in the United Kingdom and a cross-sectional survey from Australia on adoptive gay father families similarly found positive outcomes in terms of family cohesion, lower levels of family conflict and good overall health and well-being of their children.

Research also suggests that the sexual orientation of parents does not have a significant impact on their children's gender-typed behavior. Additionally, there is a positive association between having same-sex parents and better school progress for children in early childhood due to their higher levels of parental involvement, as well as access to advantages such as highly educated and employed parents.

The case for same-sex couple adoption

The studies highlighted above are comprehensive, detailed and have representative sample sizes, accounting for a host of variable factors. They overwhelmingly indicate that the gender or sexuality of parents does not impact a child's academic achievement, and that same-sex parent families can provide a supportive environment for child development, just like heterosexual families. Despite the societal stigma that both same-sex couples and their children face, children raised by such couples tend to have better emotional and physical well-being, which may be attributed to the more equal sharing of parenting responsibilities among same-sex couples.

Same-sex couples also provide a healthy and nurturing environment for their children, challenging the notion that they are incapable of doing so. In fact, these children could potentially provide certain additional benefits to their peers, such as greater tolerance towards diversity. The quality of parenting, not a parent’s sexual orientation or gender identity, determines children's outcomes and development. These children fare equally or better than children with heterosexual parents in terms of their development and outcomes, indicating that the sexual orientation or gender identity of parents is not a crucial determinant of children's development.

In conclusion, same-sex parent families can provide a loving and supportive environment for children to thrive. The NCPCR's position is biased, riddled with false information, and exhibits homophobia and bigotry. Therefore, the scientifically valid position of the DCPCR should be held by the Court, while the NCPCR's intervention application should be summarily dismissed by the Supreme Court.

Kanav Sahgal is a Communications Manager at Nyaaya, Vidhi Centre for Legal Policy.

Dr Ketan Bajaj is a Nat Cat Specialist at Swiss Re, Bangalore

Views are personal.