INTER-COUNTRY ADOPTION:

AN INDIAN LEGAL PERSPECTIVE

Presentation by:Prachi JohriVarun Vaish

NALSAR University of Law, Hyderabad

Definition of Adoption

• “the institutionalised social practice through which a person, belonging by birth to one family or kinship group, acquires new family or kinship ties that are socially defined as equivalent to biological ties and which supersede the old one, either wholly or in part.”

-See JHA van Loon Report on Intercountry Adoption at the Hague Conference

Indian Perspective

• Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469– foreign adoption was held to be consistent with India’s

National Policy on Children• In Re Rasiklal Chhaganlal Metha, AIR 1982 Guj. 193 – “Adoption is not a mere legalistic arrangement but the

creation of an environment in which the child can grow and be integrated with society”

Adoption Process in IndiaEnlisted Foreign

Adoption Agency

(EFAA)/Central

Authority/Govt. Deptt.

Recognised Indian

Placement Agency (RIPA)

Clearance by ACA

Matching the Child

Study Report

with Home Study

Report NOC from CARA

Petition to the Court

Passport and Visa

Child travels to foreign country

For Children with Special Needs

• The Supreme Court guidelines keep the procedural requirements just the same but authorize the need to expedite matters with greater urgency.

• The one additional documentary evidence – certificate from the Chief Medical Officer of a

Government Hospital giving details of the health of the child.

– required to be procured by the placement agency

Maria Chaya Schupp v.  Director General of Police and Ors., (2010 CriLJ 883)It is essential to carefully scrutinize all adoption

documents along with taking down relevant permissions from biological parents before going for inter-country adoption. 

Mr. Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children, (162(2009) DLT 605) Where the adoptive parents fail to establish clearly

the motive for adopting a child from another country, then the adoption process would be barred and be declared as malafide.

Legal Provisions in India

Constitution of IndiaArt 24; Art 45

Hindu Adoptions and Maintenance Act,

1956Sitabai v.

Ramchandra, AIR 1970 SC 343

Guardians and Wards Act, 1890

Juvenile Justice (Care And Protection Of

Children) Act, 2000 as amended in 2006

International Framework

The Hague Convention

on Protection of Children and Co-

operation in Respect of Intercountry Adoption

Convention on the Rights of the

Child (CRC)Problems:

#1 Art 20 “national autonomy”

#2 Art 21 hierarchy of options.

Practical Aspects:

Presentation Layout

• CARA-Central Adoption Resource Auth.• Laws Pertaining to Surrogacy• Issues Pertaining to Inter-Country Adoption.• Conclusion

Central Adoption Resource Authority (CARA)

• The Central Adoption Resource Authority (CARA) is an Autonomous Body under the Ministry of Women and Child Development, Government of India and is responsible for both in-country and inter-country adoptions in India.

• Its objectives are to find an affectionate and caring family for every orphan/destitute/surrendered child in the country.

• It firstly ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India.

• It also provides financial assistance to various NGOs and Government run Homes to promote quality child care to such children and place them in domestic adoption.

Source of Authority for CARA• The Central Adoption Resource Authority (CARA) was initially set

up in 1990 under the aegis of the Ministry of Welfare in pursuance of Cabinet decision dated 9.5.1990.

• By Union Cabinet Decision on 2nd July 1998, the then Ministry of Social Justice & Empowerment conferred the autonomous status on CARA w.e.f. 18.3.1999 by registering it as a Society under the Societies Registration Act, 1860.

• It was designated as Central Authority by the Ministry of Social Justice & Empowerment on 17.7.2003

• For the implementation of the Hague Convention on Protection of Children & Cooperation in respect of Inter-country Adoption (1993).

In-Inter Country Adoption Guidelines 2004 and 2006

• In-country Adoption of Indian children is governed by In-country Guidelines-2004. Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th February’2006.

• These Guidelines are a follow up of various directions given by the Supreme Court of India in L.K. Pandey Vs. Union of India.

• The CARA Guidelines requires that every application from a foreigner wishing to adopt a child must be sponsored by a social or child welfare agency recognized or licensed by the government of the country in which the foreigner is resident.

• The agency should be recognized by CARA.

Effect of Guidelines• Firstly, it will help to reduce profiteering and

trafficking in children, might be asked to pay unconscionable sums of money.

• Secondly, proper Home Study Report home study report on which the court can rely.

• Thirdly, there would be a authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth.

4 Aspects for Clean Adoption

• Valid Adoption the country of the child.

• Co-ordiantion by CARA, The Foreign Agency and the Domestic Indian Placement Agency.

• Adoption recognized by the Foreign Country i.e. Hague Harmonization.

• No hurdles in the immigration and re-settlement of the adopted child.

Surrogacy in India• At present, there are no laws on legalizing of

parenthood resulting from children born out of surrogacy arrangements.

• The only legislation which we have is the Registration of the Births and Deaths Act, 1969 which does not contain any provision regarding parentage as a result of a surrogacy arrangement.

Justices G S Singhvi and A K Ganguly Decision (SC)

• A German IVF child of an Indian mother was declared to have virtually become "stateless citizens" with India refusing it citizenship and Germany not ready to recognise surrogacy as a means of parenthood.

• The bench held –• “Statelessness cannot be clamped upon the children. There

must be some mechanism by which they get citizenship of some country. Children should be allowed to leave the country after an assurance of their citizenship has been given.

• Children born out of surrogacy mustn’t be treated as commodities.”

Artificial Reproductive Technologies (ART) Guidelines

• Promulgated by Parliament.• Form a base as with regards to legislation in this field.• Provides for careful practice of ART, accreditation of

infertility clinics and supervision of their performance in India.

• Does not maintain a Registry of ART clinics in India. • Asserts that the surrogate mother is under any

circumstances cannot be considered to be the legal mother.

ART Guidelines• Para 3.5.4 of the ART Guidelines says that a surrogate mother carrying a child

biologically unrelated to her must register as a patient in her own name.

• While registering she must mention that she is a surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc.

• She must not use/register in the name of the person for whom she is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death (in whose names will the hospital certify this death?).

• The birth certificate shall be in the name of the genetic parents. The clinic, however, must also provide a certificate to the genetic parents giving the name and address of the surrogate mother.

• All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the couple seeking surrogacy.

• The surrogate mother would also be entitled to a monetary compensation; the exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother.

• In cases where the surrogate mother also donates her egg, the authorizing parents / infertile couple will have to legally adopt the child. This fact will also have to be recorded in the birth certificate issued to such a child.

• Furthermore, where the genetic material is supplied by third party donors, then in such cases the birth certificate issued to the child will initially have the names of the genetic parents.

• Here, it becomes mandatory for the infertile couple to legally adopt the surrogate child so born, before they are declared to be the legal parents of such a child.

• However, Para 3.5.5 mentions that - A third-party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa.

Issues Pertaining to Inter-Country Adoption

• Section 361 of the Indian Penal Code provides for law against kidnapping and abduction. IPC territorial Jurisdiction.

• The innocent adoptive parents duly comply with the requirements of the HAMA 1956 for taking the child in adoption.

• The adoption deed is presented to the immigration authorities and this is where the dispute commences.

• Adoption (Designation of Overseas Adoptions) Order 1973, SI 1973/19: (UK Immigration Law)

1. When a child has been legally adopted from a country whose adoption orders are recognised as valid under UK law, i.e. from a ‘designated’ country, then the parents may apply for the child to join them in the United Kingdom as their adopted child.

2. If the child has not been legally adopted from a ‘designated’ country or the adoption is from a country whose adoption orders are not recognized as valid in UK law, i.e. the child is from a ‘non-designated’ country, entry clearance will have to be obtained for the child to travel to the United Kingdom for adoption through the English courts.

3. India is specified as a ‘non-designated’ country under the 1973 Order.

Singh v.Entry Clearance Officer, New Delhi ([2004] EWCA Civ. 1075)

• The Court held that that the bias against Indian adoption custom was wrong and that it was a breach of the right to family life and discriminatory to refuse an adopted child entry clearance to the United Kingdom by giving less weight to an adoption effected by customary law in India and which was recognized as valid there on the ground that it was not a recognized practice in English law.

• Furthermore, adoptions within the family fold are not encouraged, while adoption applications by foreigners seeking to adopt children from orphanages and welfare homes receive a more positive treatment.

• No benefit of the Hague Convention, rate of refusal at the Embassy level is very high.

Conclusion• CARA’s involvement is minimalistic. They merely provide a seal of

approval. Direct contact between foreign Agency and Domestic Placement Agency. Female Trafficking Rampant.

• Adoption Agencies ridden with Corruption and the use of personal connections to push applications.

• No legislation for Surrogacy.

• Rights of a Child to know about his biological parents.

• No Directions given to Embassies to ensure recognition of Adoptions under the JJ Act or the HAMA.

• No Uniform Procedure for Inter-Country Adoption. Uniform Code. Judges dealing with adoption cases, especially in small towns and cities in India, are not predominantly acquainted with the interpretation of the inter-country adoption Guidelines.

Conclusion

• Prevent Multiple Adoptions particularly in the case of presence of bio-logical Children.

• Fake hurdles in In-country Adoption.

• ‘Best Interest of the Child’ Principle

Thank You

Prachi and Varun