By: annet preethi furtado
May 22 2023
Regulations over surrogacy and adoption in India became the talking point after Hindi film actor Salman Khan said in a televised interview that he wanted to become a father but can’t because of ‘Indian laws.’
On April 29, 2023, Khan appeared on the chat show ‘Aap ki Adalat’ and spoke candidly with India TV’s Editor-in-Chief Rajat Sharma about his personal life. He expressed a strong desire to become a parent. He said, "What to say, that was the plan. It wasn't for a daughter-in-law; it was for a child. But according to Indian laws, it's not possible. Now we'll see what to do." During the interview, Khan also acknowledged film personality Karan Johar's two children (born out of surrogacy) and the recent changes in surrogacy and adoption laws. He said, "That's what I was trying to do. But that law may have changed, so let's see. I am very fond of children."
(Note: Salman Khan’s remark can be heard around the 9:27 minute mark and again at 11:40 minute mark)
While Khan did mention Johar's children, it is uncertain whether he was explicitly referring to surrogacy or addressing broader changes in laws related to adoption. However, his views have opened up the discussion on single men being able to parent children in India. Several social media posts have also implied that single men in India can’t adopt India. So, let’s look at what the law says on adoption by single men/ them opting for surrogacy, and what are the challenges.
In India, adoption is traditionally seen as a family matter. Single men often face societal stigma and bias that questions their ability to provide a nurturing environment for a child. While the two governing adoption laws allow single men to adopt, in practice, there are social and cultural barriers that make it difficult for them to do so.
In 2016, Aditya Tiwari made headlines for becoming the youngest single man in India to adopt a child with Down syndrome. Tiwari, who was 28 years old then, faced several hurdles in his journey to adopt Binney. Speaking to Logically Facts, Tiwari said, ''The main concern is regarding the mindset of the people like only a female can take care of a child, not a male. So it's like a female can feed the child, and a man can go out for work. So how can you take care of a child? These are some stigmas.'' He said, ''Parenting is not dependent on gender; anyone who is willing and ready to take on the responsibility can become a parent. The key factor lies in the couple's mutual understanding and their willingness to fulfill the responsibilities associated with parenting, rather than being determined solely by gender.''
Tiwari emphasized his case and expressed, "When I expressed my willingness to adopt a child, I encountered numerous questions and doubts. People wondered why I wanted to adopt as a single parent and questioned my ability to care for a child. According to the law, anyone who meets the criteria is eligible to adopt a child.”
According to the Central Adoption Resource Authority (CARA) – set up under the Juvenile Justice (Care and Protection of Children) Act – which works under the aegis of the Ministry of Women & Child Development, to be eligible to adopt in India, one must be a financially independent adult, the age difference between the child and prospective adoptive parent should not be less than 25 years, and the prospective parent should be in a good mental and physical health. Both married and single individuals are eligible to adopt, with separate criteria for each. However, as per CARA guidelines, single men are not allowed to adopt a girl child.
India's adoption laws have evolved over the years in several ways, including the addition of new legislation and modifications to existing regulations.
Hindu Law - The Hindu Adoption and Maintenance Act, 1956, (HAMA)
The Hindu Adoption and Maintenance Act of 1956 (HAMA), which is applicable to Sikhs, Jains, and Buddhists, permits adoption by both single men and women. Any Hindu may adopt a child in accordance with the Act, including single men and women who identify as Hindus, so long as they are of sound mind and are not minors in accordance with sections 7 and 8. Additionally, if a male adopts a female child or a female adopts a male child, Section 11 (iii) and (iv) of the Act mandates that the adoptive parent must be at least twenty-one years older than the child being adopted.
The Juvenile Justice (Care and Protection of Children) Act, 2015
The year 2015 marked the enactment of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act), which introduced a standardized legal framework for adoption throughout India. One of its key provisions was the allowance of non-religious adoption, a significant departure from the previously fragmented and religion-based adoption laws prevalent in India. By establishing a uniform set of regulations, the Juvenile Justice Act has streamlined adoption procedures in the country.
While the Juvenile Justice Act prevents a single man from adopting a girl child, the Hindu Adoption and Maintenance Act doesn’t put this restriction raising concerns about the laws being contradictory and discriminatory to other religious groups.
“A Hindu man can opt for adoption under either of the two laws available for him, but Muslim and Christian men can only opt for the Juvenile Justice Act. The latter’s personal laws don’t govern adoption. They are plenty of realms where Hindu persons get advantages under personal laws over others and vice versa,” lawyer Susan Abrahms told Logically Facts.
In India, single men are eligible to adopt children as long as they meet the necessary criteria, one of which is that the prospective adoptive parent shouldn’t be convicted in any criminal act.
Speaking to Logically Facts, child rights lawyer Anant Kumar Asthana said, "Law in India does not prohibit a single male from adopting a child but if the child to be adopted is female, then a single male is not permitted to adopt under the Juvenile Justice Act. However, adoptions carried out under the Hindu Adoption and Maintenance Act (HAMA) do not prescribe any such disability on a single Hindu male, be it the adoption of a male child or female child."
"The personal law of Hindus under 'Hindus Adoption and Maintenance Act of 1956' allows a single man to adopt a child provided he is of a sound mind, major and has the capacity to adopt a child. Whereas the personal laws of Muslims, Christians, and Parsis do not allow total adoption but rather permit them to raise a child under the Guardianship and Wards Act of 1980" lawyer Rev. Dr. Francis Assisi Almedia said.
In recent years, the Indian law governing surrogacy has undergone significant changes. With the introduction of the Surrogacy (Regulation) Act, surrogacy for single men, couples, and gay couples has been prohibited in India. The act also prohibits ‘commercial surrogacy,’ which means that surrogacy arrangements cannot be conducted for commercial purposes, including profit or involving a third party.
However, it is important to note that ‘altruistic surrogacy,’ under specific conditions, is still permitted for married couples in India. Altruistic surrogacy refers to surrogacy arrangements where no financial compensation is provided to the surrogate beyond necessary medical expenses and insurance coverage.
Mumbai-based lawyer Amit Kharkhani who has worked extensively around the areas of surrogacy and medico-legal laws told Logically Facts, “At the moment, single men are not allowed to opt for surrogacy under the Surrogacy Regulation Act, but single women are allowed to go for surrogacy. So that is the discrimination under the law.’’ He added, “If anyone wants to challenge the law, it must be done through the High Courts or the Supreme Court.’’
Pankaj Kumar from Nyaymach Law Firm added, “In exceptional cases and under specific circumstances, surrogacy can be allowed with the intervention of a court order. Although such instances are rare, they do exist to address very unique situations.'' He added, “However, the same option is not available for gay individuals or couples, as they may explore adoption as an alternative route for having a child.''
While it may not be easy for single men to be able to adopt or opt for surrogacy it is not impossible for them to be a parent at all. Single men can always adopt a male child under all laws governing adoption and Hindu men can adopt a girl child under the Hindu Adoption and Maintenance Act. While the discussion of single men being able to adopt a girl child through a secular law is needed, social and cultural barriers that restrict them from being a parent are what need to be looked at.