The Delhi High Court recently affirmed the modifications made to the Adoption Rules issued under the Juvenile Justice (Care and Protection of Children) Act of 2015, which prohibit parents from adopting a “normal child” if they already have two children, and stated that the right to adopt children is not a fundamental right.
According to the Rights of Persons with Disabilities Act, a normal child is one who does not have any disabilities. Justice Subramonium Prasad also affirmed the Central Adoption Resource Authority’s (CARA) Steering Committee’s ruling, which stated that even prospective adoptive parents (PAPs) whose registrations and applications were completed prior to the law’s enactment would not be eligible to adopt a third child if they are already parents to two.
The Court ruled that as the goal of the policy change is to increase the number of adopted children with special needs, it cannot be said that the decision to apply the policy, even to applications that are currently pending, is arbitrary. “The significant discrepancy between the number of normal children up for adoption and the number of PAPs hoping to adopt a normal child must be considered in the context of the protracted wait for prospective parents, including those without even one biological child. In view of adoption and the best interests of the child, a balanced approach that aims to shorten the wait for parents with a single child or none at all should be applauded, the Court stated. This approach would match the child with a family that has fewer biological children already.
According to Justice Prasad, the right to adopt cannot be elevated to the level of a basic right under Article 21 (right to life and liberty) or to the point where PAPs are able to seek the ability to choose who they adopt. The study came to the conclusion that the Adoption Regulations of 2022 are procedural in nature rather than retrospective.
“It is also concluded that the petitioners have no vested right towards the adoption of a normal child retroactively at the pre-referral stage of adoption,” Justice Prasad stated. The Court was handling a number of applications from would-be parents who wanted to adopt a third child but only had two children. They were recognised as PAPs, given registration numbers, and put on the waiting list after submitting an adoption application through CARA in accordance with Regulation 5(8) of the 2017 Adoption Regulations. The Women and Child Development Ministry notified the Adoption Rules, 2022, on September 23, 2022, in order to quash the 2017 Regulations.
Couples with three or more children were not eligible to be considered for adoption, unless they were stepparents adopting a relative or had children with special needs who were difficult to place. This was stated in Section 5(8) of the 2017 law. Section 5(7) of the recently implemented regulations stipulates that couples who have two or more children are limited to adopting children with special needs or difficult-to-place children if they are not their biological or stepchildren. The CARA Steering Committee determined on February 14, 2023, that the modifications will be implemented retroactively as an eligibility requirement, even for applications that were received and for registrations that were completed before the Adoption Rules, 2022, were passed.
The parents brought up a number of concerns, one of which was that the rules’ retroactive implementation was arbitrary and against Article 14 of the Constitution. After weighing the reasons, Justice Prasad declared that PAPs had no legal authority to demand the child they wished to adopt. It stated that the Juvenile Justice (Care and Protection of Children) Act, 2015’s mandate, has not yet established the parents’ right to adoption; thus, the 2022 law just modifies the eligibility requirements. Consequently, it cannot be referred to as a retroactive application. The current writ petitions are not ones that this court is inclined to consider. The Court ultimately issued an order dismissing the writ petitions and any ongoing application(s), if any.
