Adopting a child is not a fundamental right, says Delhi High Court

The Delhi High Court has ruled that the right to adopt a child cannot be considered a fundamental right under Article 21 of the Constitution. The decision came on a batch of petitions filed by several prospective adoptive parents (PAPs) with two biological children who sought to adopt a third child, in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2015.

Justice Subramonium Prasad upheld the retrospective application of a regulation introduced in 2022 which limits couples with two or more children to adopting only children with special needs or those hard to place. The court emphasized that the adoption process prioritizes the welfare of children over the preferences of prospective adoptive parents.

"The right to adopt cannot be elevated to the status of a fundamental right within Article 21, nor does it grant PAPs the right to demand their choice of whom to adopt. The adoption process operates on the premise of child welfare, and the rights of PAPs cannot take precedence," stated the court.

The judge acknowledged the waiting challenges in adoption, noting that many childless couples are eager to adopt "normal children." However, the court highlighted the importance of ensuring that children with special needs find homes, given their lower chances of being adopted.

The decision addresses a batch of petitions from PAPs with two biological children, who applied for adoption before the Adoption Rules, 2022, replaced the Adoption Regulations, 2017. The new rules restrict couples with two or more children to adopting children with special needs or those hard to place, unless they are relatives or step-children.

Hard-to-place children are those less likely to be adopted due to factors like physical or mental disabilities, emotional disturbance, recognized high risk of disease, age, racial or ethnic considerations, etc.

The court dismissed the petitions challenging the retrospective application of the Adoption Regulations, 2022, stating that there is "no right at all" to insist on adopting a particular child. It emphasized that the change in eligibility criteria does not affect the registration of the petitioners as PAPs, and they remain within the consideration zone for adopting special needs children or those hard to place, as well as relatives or stepchildren.