Beyond same-sex marriage: The right to parent

What of LGBTQIA+ people who desire single parenthood but not coupledom or marriage?

While the Delhi High Court is hearing a petition that seeks marriage equality for same-sex couples, the Russian government is cracking down on gay men who have become parents through surrogacy. What is the connection between these developments? The former is concerned with the extension of “legal rights and social benefits that flow from the institution of marriage” to all individuals without discrimination based on sexual orientation. The second is an attempt to stoke anti-gay sentiments by linking “non-traditional sexual orientation” with child trafficking so that single men can be denied the “right to have children.”

In his book The Pink Line: Journeys Across the World’s Queer Frontiers (2020), author Mark Gevisser writes of “those places increasingly integrating queer people into their societies as full citizens” and “those finding new ways to shut them out now that they had come out into the open.” His analysis is helpful when used to understand how the world is not moving in a singular direction. The freedoms and anxieties fuelled by globalisation are shaped by multiple factors such as grassroots activism, electoral politics, cultural gatekeeping, international funding, and the circulation of ideas via the internet.

I believe it is futile to classify countries into boxes such as ‘queer friendly’ and ‘not queer friendly’. Countries that are proud of being inclusive must look within, and acknowledge the multiple exclusions that go unaccounted. While the reading down of Section 377 has paved the way for petitions to legalize same-sex marriage in India, what seems missing is a dialogue around the rights of LGBTQIA+ people who desire single parenthood but not coupledom or marriage. What would it mean to delink the right to parent from the right to marry?

In 2019, the Vidhi Centre for Legal Policy published a digital resource called Queering the Law. Authored by Akshat Agarwal, Diksha Sanyal and Namrata Mukherjee, it states, “The body of family law governs institutions which regulate our most intimate personal choices. Family law governs significant personal relationships which have a bearing on the ways in which caretaking responsibilities, entitlements, benefits and obligations are distributed. Yet, like most laws, the body of family law privileges opposite gender, monogamous, conjugal relationships.”

Why is the institution of marriage so central to how family is conceptualised? How can individuals who wish to stay unmarried because they are asexual or polyamorous or unable to find compatible partners fulfill their dream to be parents? If they want the primary relationship in their life to be the parent-child bond, and not their commitment to a wife or husband, why must they invest in a marriage that they are not interested in? These questions are important for LGBTQIA+ people who reject marriage because of its patriarchal history as an institution that not only allows marital rape but also reinforces gender stereotypes, perpetuates homophobia, and controls inter-caste relations.

In his article titled An ‘official’ family: Laws of Parenthood in India (2017) for Firstpost.com, Saptarshi Mandal, who teaches at the Jindal Global Law School, writes about the Juvenile Justice Act amended in December 2015 “to provide that a single male could not adopt a girl child.” According to him, this provision is based on “the fear of sexual abuse of female children by adoptive fathers.” He wonders about the rationale behind restrictions placed on single men in adoption law “when the criminal law prohibiting sexual abuse of children acknowledges that abuse can be perpetrated by both men and women.”

I draw on Mandal’s critique to envision the barriers that might come up when LGBTQIA+ people advocate for the right to parent as distinct from the right to marry. Deeming them unsafe for children to interact with is a tactic to deprive them of the experience of parenting. He writes, “What about the possibility of sexual abuse of male children by single fathers? Further, adoption of female children by married couples only, does not rule out possibilities of abuse, since every study on the subject points out that children are as vulnerable to sexual abuse within the family as they are outside. Clearly, sexual paranoia obliterates reason.” It seems that India and Russia have much in common.

In 2018, after the Law Commission of India (LCI) prepared a report on the Uniform Civil Code, a group of queer-feminist activists including Chayanika Shah, Minakshi Sanyal, Maya Sharma, Rituparna Borah, Rumi Harish, Deepti Sharma and Jaya Sharma sent written recommendations to Justice Dr. B S Chauhan. Their response has been digitally archived by Orinam, a Chennai-based collective of LGBTIQA+ people and allies. It is a valuable document to revisit because it speaks for the rights of people who do not identify within the gender binary of man/woman. It also serves as a reminder of ‘the right to found a family’ articulated within the Yogyakarta Principles on Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics (2007, 2017).

(Chintan Girish Modi is a writer, educator and researcher who tweets @chintan_connect)