Right to Adopt Cannot be Elevated to Status of Fundamental Right Under Article 21: Delhi HC

NEW DELHI:
The Delhi High Court has clarified that the right to adopt cannot be elevated to the status of a fundamental right under Article 21 of the Constitution of India.

The court was hearing a series of pleas filed by various Prospective Adoptive Parents (PAPs) challenging an office memorandum issued by Care and Protection of Children (CARA).

Justice Subramonium Prasad said that PAPs cannot demand their choice of adoption before the final adoption order is passed by the District Magistrate under the Juvenile Justice CARA Act, 2015.

The memorandum said that prospective parents with two biological children, regardless of their registration date, would only be eligible to adopt children with special needs or other specific categories.

Rejecting the PAPs pleas, the court pointed out the policy motivation behind reducing the number of biological children for adoption eligibility, is aimed at prioritising children with special needs.

The court noted the imbalance between the number of available normal children for adoption and the number of prospective parents, advocating for a balanced approach to reduce waiting times for parents and prioritise children’s interests.

The court said that the adoption process prioritises the welfare of children over the rights of prospective parents, and there is no expectation of adopting a normal child at the pre-referral stage.

The ruling clarified that Adoption Regulations 2022, including the provision regarding the number of biological children, operate retroactively and do not violate PAPs’ rights as no vested right accrues until the final adoption order is issued.

The court concluded that the application of the Adoption Regulations 2022 to already registered PAPs does not constitute retrospective application, as their adoption rights are yet to be solidified under the law.