Delhi High Court Rules Right to Adopt Not a Fundamental Right

LI Network

Published on: February 20, 2024 at 12:30 IST

The Delhi High Court has clarified that the right to adopt cannot attain the status of a fundamental right under Article 21 of the Constitution of India, nor does it confer Prospective Adoptive Parents (PAPs) the entitlement to dictate their choice of adoptees.

Justice Subramonium Prasad asserted that there is no entitlement to insist on the adoption of a particular child until the final adoption order is issued by the District Magistrate under the Juvenile Justice (Care and Protection of Children) Act, 2015.

This statement came in response to a set of pleas filed by various PAPs challenging the Office Memorandum issued by CARA last year.

The memorandum supported the Steering Committee Resource Authority’s decision that prospective parents with two children, regardless of their registration date, would not be eligible to adopt a normal child under the Adoption Regulations, 2022.

Instead, they could only opt for adopting a child with special needs, a hard-to-place child, or a relative’s child and step-children.

Dismissing the pleas, the court highlighted the policy motivation behind reducing the number of biological children eligible for adopting a normal child from three to two.

The judge considered the need to balance the interests of childless couples and parents with one child against the objective of increasing adoptions of children with special needs.

The Court emphasized that no vested right for the adoption of a normal child accrues to PAPs retroactively at the pre-referral stage of adoption. It stated that the adoption process prioritizes the welfare of children, and the rights within this framework do not place the rights of PAPs at the forefront.

The Court concluded that the application of Adoption Regulations 2022 to already registered PAPs, as per the decision of the Steering Committee, cannot be deemed a retrospective application.

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

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