The Delhi High Court has asserted that the privilege to adopt a child cannot attain the stature of a fundamental right as per Article 21 of the Constitution. Furthermore, the court emphasized that prospective adoptive parents do not possess the entitlement to select the child they wish to adopt.

Justice Subramonium Prasad affirmed the retroactive implementation of a regulation that restricts couples with two or more children to adopting only children with special needs or those who are difficult to place. He emphasized that this process prioritizes the welfare of children and that the rights of prospective adoptive parents (PAPs) should not take precedence over this imperative consideration.

"The right to adopt cannot be raised to the status of a fundamental right within Article 21 nor can it be raised to a level granting PAPs the right to demand their choice of who to adopt. The adoption process in entirety operates on the premise of welfare of children and therefore the rights flowing within the adoption framework does not place the rights of the PAPs at the forefront," said the court in a recent order.

The judge observed that there is a considerable wait time for adoption, with numerous childless couples and parents with only one child eager to adopt a "typical child." However, the likelihood of a specially-abled child being adopted is minimal. Therefore, the regulation aims to guarantee that a greater number of children with special needs find adoptive homes.

"A balanced approach therefore ought to be welcomed which attempts to reduce the wait for parents with a single child or devoid of even that, in anticipation of adoption and the interests of the child while being matched with a family with lesser number of already existing biological children," added the court.

The court's ruling was made in response to a group of petitions filed by multiple prospective adoptive parents (PAPs) who already had two biological children. These PAPs had applied for the adoption of a third child in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

While their application was being processed, the Adoption Rules of 2022 replaced the Adoption Regulations of 2017. Under these new rules, couples with two or more children were limited to adopting only children with special needs or those who are difficult to place, unless they are relatives or step-children.

Hard to place children refer to those who are unlikely to be adopted due to various factors such as physical or mental disabilities, emotional disturbances, recognized high risks of physical or mental diseases, advanced age, racial or ethnic factors, among others.

The petitioners argued that applying the Adoption Regulations of 2022 retrospectively was arbitrary and infringed upon Article 14 (equality before law) of the Constitution. However, in its order dismissing the petitions, the court stated that there is no absolute entitlement to demand the adoption of a specific child. Additionally, the court rejected the petitioners' assertion that a "vested right" had been retrospectively revoked, deeming it legally invalid.

"The policy of the legislature, therefore, is that the rush of a number of couples, who already have more than four children, who are available to adopt a child was felt in the year 2015. The said figure of four was brought down to three in the year 2017 and the same has now been brought down to two in the year 2022. This indicates that there is no right amongst the PAPs to insist on the child whom they want to adopt till the adoption does not go through. The change is only in the eligibility criteria," the court said.

The court further clarified that the petitioners' status as prospective adoptive parents (PAPs) remained unchanged, with their registration still valid. They were still eligible for consideration for the adoption of special needs children, hard-to-place children, as well as children who are relatives or stepchildren.