Inter Country Adoptions, Indian Perspective

THE INTER-COUNTRY ADOPTIONS - INDIAN PERSPECTIVE

Submitted to: Submitted from: Ms. Gagan Preet Abhiwadya Sood (470)

Arnab Naskar (459)

Mohinder Pratap Libra (469)

Vishu Agrawal (450)

TTABLEABLE OFOF CONTENTSCONTENTS

RRESEARCHESEARCH M METHODOLOGYETHODOLOGY........................................................................................................................................................................................................................II

ACKNOWLEDGEMENTACKNOWLEDGEMENT..........................................................................................................................................................................................................................................IIII

1.1. AADOPTIONDOPTION ANDAND I INTERNTER-C-COUNTRYOUNTRY A ADOPTIONSDOPTIONS............................................................................................................................................11

1.1. Adoption...........................................................................................................................11.2. Inter Country Adoption..................................................................................................1

2.2. AADOPTIONDOPTION L LAWSAWS ININ D DIFFERENTIFFERENT A ARENARENA..............................................................................................................................................................44

2.1. China..............................................................................................................................52.2. South Korea..................................................................................................................62.3. LGBT Adoptions.............................................................................................................7

3.3. IINDIANNDIAN L LEGISLATIONSEGISLATIONS ONON I INTERNTER-C-COUNTRYOUNTRY A ADOPTIONSDOPTIONS........................................................................................................99

3.1. THE LANDMARK CASE OF IN RE: RASIKLAL CHHAGANLAL METHA...........................93.2. CASE OF LAXMI KANT PANDEY V. UNION OF INDIA......................................................103.3. Other Significant Cases................................................................................................12

4.4. CCENTRALENTRAL A ADOPTIONDOPTION R RESOURCEESOURCE A AUTHORITYUTHORITY (CARA) (CARA)..........................................................................................................1414

4.1. Procedure for adoption from India by NRIS/OCIS/ PIOS/Foreighners.................17Step I (Registration for NRI/OCI/PIO/Foreign PAPs).......................................................17Step II (Home Study and Other requirements)....................................................................18Step III (Advance NOC to PAPs by CARA).........................................................................19Step IV (Matching, Referral, Consent and confirmation of adoption proposal)...............20Step V (Issue of No Objection Certificate to Child by CARA)............................................21Step VI (Filing of Petition in the Court)..............................................................................21Step VII (Passport and Visa)................................................................................................22Step VIII (Child travels to adoptive country).......................................................................22

5.5. SSTATUTESTATUTES GOVERNINGGOVERNING INTERINTER--STATESTATE ADOPTIONADOPTION ININ I INDIANDIA..................................................................................................2323

5.1. Juvenile Justice (Care and Protection of Children) Act, 2006..................................246.6. GGUIDELINESUIDELINES P PROVIDEDROVIDED BYBY UN UN........................................................................................................................................................................................2727

6.1. The Hague Convention and the ratification on inter-country adoption by the Government of India on 6th June, 2003..................................................................................276.2. The Conventions on the Rights of the Child (CRC)..................................................28

CCONCLUSIONONCLUSION..................................................................................................................................................................................................................................................................3030

BBIBLIOGRAPHYIBLIOGRAPHY..............................................................................................................................................................................................................................................XXXVIXXXVI

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[I]

RRESEARCHESEARCH M METHODOLOGYETHODOLOGY

When it comes to methodology which is to be used, various kinds of research

methodologies are put in our research project. We have used non-empirical research to

accomplish this project with possible wisdom. We have used explanatory and descriptive

research in concept of Judiciary, theoretical analysis and recent happenings. So, it is very

hard for us to give the precise name of any one research methodology which we are using

for the instant project.

____________________________________________________________________________________________________________________________________________________________________


[II]

ACKNOWLEDGEMENTACKNOWLEDGEMENT

The gratification and elation on the completion of this project will be incomplete without

mentioning all the people who helped to make it possible, whose guidance and

encouragement was valuable to us.

We express our sincere and heartiest thanks to Ms. Gagan Preet who has been a constant

source of inspiration to us in completing the project to its rightful path. We are

immensely indebted to for her inspiring guidance and kind suggestion in carrying out the

project.

We specially thank our parents who gave us a chance to study in this esteemed university,

a paradise for legal edification and all who supported, us directly or indirectly, for

successful completion of the project work.

Last, but not the least; we thank our institution, Rajiv Gandhi National University of

Law, for giving us the opportunity for developing the project.

____________________________________________________________________________________________________________________________________________________________________


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CHAPTER I

1. ADOPTION AND INTER-COUNTRY ADOPTIONS

1.1. Adoption

The practice of adoption can be crudely defined as ‘the admission of a stranger by birth to

the privileges of a child by a legally recognized form of affiliation’.1 It means accepting a

child as a biologically born child of our own. This is a remedy for the childless couple to

have a child of their own. It is an act of establishing a person as parent to one who is not

in fact or in law his child.2 It taking of stranger into the family and considering and

treating him, in all respects, as if, by birth that child belonged to that family; or it is the

adoptive parent acting towards the child as if that child were their own.

In this project we will discuss about adoption, a complex phenomenon, intimately knitted

into its family law frame work and shaped by the pressures affecting the family in its

local social context. Once the adoption is complete, all rights obligations and control of

the natural born family ceases to exists over the child, while new rights comes into

existence as far as adoptive family is concerned. The status of the natural parents

becomes nothing but that of a third party, with respect to the child who has been adopted

and moreover, the parents who have adopted the child or the adoptive parents take over

the responsibilities of the child. It is one of the means of solving the problem of destitute

and orphans. 3

1.2. Inter Country Adoption

If we talk about Inter Country adoptions or International adoption, it is a type

of adoption in which an individual or couple becomes the legal and permanent parents of

a child that is a national of a different country. In general, prospective adoptive parents

1 Raghunath Behera v. Balaram Behera And Anr. AIR 1996 Ori 38.

2 Adoption, <http://www.britannica.com/EBchecked/topic/6298/adoption> last accessed on November 7, 2010 at 7:22 IST.

3 Adoption inter-country, <http://www.legalservicesindia.com/articles/adopt.htm> last accessed on November 7, 2010 at 7:22 IST.

PPROJECTROJECT S SUBMISSIONUBMISSION ONON P PARTIALARTIAL F FULFILLMENTULFILLMENT OFOF T THIRDHIRD S SEMESTEREMESTER ____________________________________________________________________________________________________________________________________________________________________

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must meet the legal adoptions requirements of their country of residence and those of the

country whose nationality the child holds.4

The laws of different countries vary in their willingness to allow international adoptions.

Some countries, such as China and Korea, have relatively well-established rules and

procedures for international adoptions, while other countries expressly forbid it. Some

countries, notably many African nations, have extended residency requirements for

adoptive parents that in effect rule out most international adoptions. Malawi, for instance,

requires residency except in special cases.5 Inter-country adoption is an increasingly

common form of family formation. Inter-country adoption can be defined as adoption of

a child by a person of another country. Inter-Country adoption may be more viable choice

than domestic adoption for many families especially those who want to adopt a healthy

infant.

Inter country adoption is a subject of international law in several senses. First, because

inter country adoption involves the immigration of persons from one nation to another, it

raises core national sovereignty issues with international law significance.6 Second, Inter

country adoption as a humanitarian matter implicates human rights issues, which have

become a significant focus of international law. An exhaustive scope of international law

applicable to inter country adoption is beyond the scope of this Article. However, two

treaties will be reviewed: the Convention on the Rights of the Child (CRC)7 and the

Hague Convention on Protection of Children and Co-operation in Respect of Inter

country Adoption (Hague Convention).8 The CRC is probably the most relevant

human rights convention applicable to inter country adoption, which we will be dealing

4 <http://en.wikipedia.org/wiki/International_adoption> last accessed on November 3, 2010 at 13:22 IST.

5 <http://uai-news.blogspot.com/2010/01/malawi-as-example-for-haiti.html> last accessed on November 2, 2010 at 7:32 IST.

6 Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the Indian Adoption Scandals, Seton Hall Law Review, Vol. 35:403, Page No. 406.

7 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR,44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448

8 Hague Convention on Protection of Children and Co-operation in Respect of Inter country Adoption, May 29, 1993, 32 I.L.M. 1134.


http://uai-news.blogspot.com/2010/01/malawi-as-example-for-haiti.html

[3]

in the later part of our project work. The details regarding this will be discussed in

Chapter VI.


[4]

CHAPTER II

2. ADOPTION LAWS IN DIFFERENT ARENA

India is a legally pluralistic state. It is a land of diverse cultures, where people are free to

practice and profess their own religion by virtue of constitutional mandate provided under

Article 25. As adoption is legal affiliation of a child, in the absence of common code it is

the subject matter of personal laws. The Institution has changed over a period of time in

its form, purposes and objects because it is natural that as human though progresses, the

concept and organisation and social Institutions also advance and refined.9 Institution of

adoption is prevalent today in one form or other in almost all legal systems barring a few

systems such as Islamic countries. The Hindu and Roman legal systems are probably

among the only ancient systems of law which recognises adoption.10

In India, even today, it is not a part of uniform civil code but part of personal laws and

this institution is available only to Hindus. Muslims, Parsis and Christians do not

recognise adoption laws and have to approach court under The Guardians and Wards Act,

1890.11 Adoption is permitted by legislations amongst Hindus and by customs amongst a

few communities. Earlier a childless couple would adopt and take care of and bring up a

child either of immediate or distant family member. Nonetheless, the practise of adopting

an unrelated child is still in its infancy in India.

Now, coming back to the topic, i.e., intercountry adoptions, the adoption laws of China

and S. Korea are most suitable for international adoptions.12 These laws are worth

analysing. The other unique law which needs special attention is LGBT adoptions. There

are many countries where LGBT adoptions are illegal, on the other hand, in some well

codified. Whatsoever may be the laws, the same sex couples faces lots of problem in

adoptions. We had tried to cover up these topics in brief.

9 Gagan Preet, Hindu Adoption-A journey from Past to Present, Paradise Publishers, Jaipur, 2010, Pg. 17.

10 Ibid.

11 The Guardians and Wards Act, 1890, Article 1 (2).

12 International adoption <http://en.wikipedia.org/wiki/International_adoption> last assessed on 10 November 2010 at 16:32 IST.


http://en.wikipedia.org/wiki/International_adoption

[5]

2.1. China

The China adoption program is one of the most reliable and stable, and China is the

country from which most U.S. citizens have elected to adopt since the year 2000. In

2008, U.S. citizens adopted approximately 3,909 children from China. Children available

for adoption are mostly girls, infants to 6 years of age. Older and special needs children

are also available. These children reside in orphanages.13

Due to lack of transparency or say lack of freedom of speech in China, we could hardly

find any precise law prevailing in China. The only thing of importance which could

retrieve is the amendments in intercountry adoption policies of China.

The Seventh National People's Congress of the People's Republic of China originally

established the Current Adoption Law of China on December 29, 1991 (effective April 1,

1992).14 On November 4, 1998, the Ninth National People's Congress amended this law,

effective April 1, 1999, in several ways relevant to foreign adopters. The adoption law

applies across the board to all adoptions in the PRC; it includes adoptions of orphaned,

abandoned, and handicapped children in social welfare institutions, adoptions of blood

relatives and step-children, and adoptions of nonrelated children still living with their

birth families or guardians. These laws are applicable for both domestic and inter country

adoptions.15

The most significant change for foreign adopters in China's adoption law is that it allows

another exception to the adopter-must-be-childless requirement. Previously, the only

exceptions to this requirement were if the family adopted a child whose parents are

deceased or a child who has a special need. The law has been amended to add another

exception: abandoned children "whose parents cannot be ascertained or found (and who

are) under the care of social welfare institutions." Thus, adopters are still required to be

13China Adoption, < http://china.adoption.com/> last assessed on 10 November 2010 at 16:30 IST.

14 Chinese Cultural Centre of San Francisco, < http://www.c-c-c.org/> last assessed on 10 November 2010 at 16:32 IST.

15 Laura A. Cecere, Changes Broaden Opportunity For China's Abandoned Children To Be Adopted,

<http://www.chinaconnectiononline.com/amendlaw.htm> last assessed on 10 November 2010 at 16:32 IST.


http://www.chinaconnectiononline.com/amendlaw.htm

http://www.c-c-c.org/

http://china.adoption.com/

[6]

childless to adopt a healthy child, unless that child has a special need, has been orphaned,

or has been abandoned and is in the care of a social welfare institute.16

China also has a fixed age for adoption. No person in China below the age of 30 could

adopt a child, but no upper limit.17 There is also a provision of which qualifies children

available for adoption: only children under age 14 who have been orphaned (parents

deceased) or abandoned or whose parents are unable to raise them due to unusual

difficulties.

These are some of the unique features of China’s Adoption policies, which are considered

as the best in the world.18

2.2. South Korea

The South Korea adoption program is the oldest organized international adoption

program operating in the U.S. In 2008, U.S. citizens adopted approximately 1,065

children from South Korea. Children available for adoption include boys and girls, ages 6

months and older, healthy and special needs. These children reside in foster care and

group homes.19

As far as the resources could be analysed, the Korean Laws are stricter than China’s. In

Korea, the provision of adoption is only for hetero married couples. There is no provision

of adoption for homosexuals and LGBT community members. Even they don’t believe in

adoption by singles as they have o legal provision for it. Now, if we talk about the

minimum age of adoption, only a couple of age between 25 and 42 could go for adoption.

The age difference of the husband and wife should not be more than 10 years. There

should not be more than 4 children of less than 18 years living in the home. There is also

a specification on the length of marriage. The adopting couple must be married for at

16 Current Adoption Law of China, 1991, Article 8.

17 Ibid

18 International Adoption, <http://en.wikipedia.org/wiki/International_adoption>last assessed on 10

November 2010 at 16:32 IST.

19 Adoptive Families, < http://www.adoptivefamilies.com/news.php> last assessed on 10 November 2010 at 11:21 IST.


http://www.adoptivefamilies.com/news.php

http://en.wikipedia.org/wiki/International_adoption

[7]

least 3 years. Even the second married couple must also have to be married for at least 3

years. But not more than 2 marriages are allowed.

Two of the most amazing laws are couples may not be more than 30%

overweight. Applicants must not exceed the weight limit for their height at the time of

application and applicants with a history of any kind of depression or mental illness must

be stable for five (5) years with or without medication20.

2.3. LGBT Adoptions

Adoption by same-sex couples is prohibited by a majority of countries, but this is an area

of active debate and a growing number of jurisdictions are allowing it. Many gay and

lesbian people are choosing to become parents. Some bring children with them from

previous relationships or some couples impregnate through artificial insemination. Others

are finding adoption to be their preferred method of bringing a child into their family.

Should the sexual orientation of prospective adoptive parents be considered when placing

children in adoptive homes? The adoption of minor children by lesbian and gay adults

has been a topic of considerable debate. Although substantial research has demonstrated

that children of lesbian and gay parents develop in ways that are similar to those of

heterosexual parents, families with lesbian and gay parents remain controversial in

courtrooms, legislatures, and in the media.21 Meanwhile, many children await placement

with permanent families.

Gay couples looking to adopt face a number of challenges that married, heterosexual

couples do not. Adoption laws in the United States, for example, remain a patchwork

quilt when it comes to lesbians and gay men adopting. Many states do not allow

adoptions by any unmarried couples, which automatically preclude same-sex couples

from adopting in those states; and a few states – including Florida, Mississippi, Nebraska,

Oklahoma, Utah and Virginia – have enacted laws that specifically bar gay individuals or

couples from adopting. Here's an example:

20Dillon International, <http://www.dillonadopt.com/Korea-A.htm> last assessed on 10 November 2010 at 14:23 IST.

21 Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson; Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 2010, Pg. 164.


http://www.dillonadopt.com/Korea-A.htm

[8]

“A gay couple wants to adopt a newborn. They are chosen by a birth mother

in a state that doesn't allow lesbian or gay couples to adopt jointly. They fly to

that state to be present at the birth and to help welcome their new daughter

into the world; the birth mother tearfully presents the baby to them with her

blessings and their promise to send her photos and keep her memory alive

forever. Their plan is to bring the baby back to their home state and adopt her

there, since gay couples are allowed to adopt as couples in their home state,

and not in the state where the child was born. Unfortunately, once they return

home they discover that even though they have the birth mother's full consent,

and even though their state has no problem with their adoption, they are

unable to adopt as a couple because the Interstate Compact on the Placement

of Children (ICPC) requires the state in which their daughter was born to

approve the adoption, and that state's law expressly prohibits adoption by

couples of the same gender.”22

In the past, gay couples have had to be secretive in adopting a child due to certain

prejudices that existed against homosexuality. For example, one partner would adopt the

child as a single parent and the other would pretend to be a roommate or friend.

Currently in Canada a gay couple can legally marry and they are allowed to adopt, but in

the United States it is dependent upon each individual state. Here is a sample of countries

and states where same sex adoption s legal and where it is prohibited.

CHAPTER III

22 Gay Adoption Issues, <http://adoption.about.com/od/gaylesbian/a/gayadoptissues.htm> last assessed on 10 November 2010 at 4:32 IST.


http://adoption.about.com/od/gaylesbian/a/gayadoptissues.htm

[9]

3. INDIAN LEGISLATIONS ON INTER-COUNTRY

ADOPTIONS

In this chapter we will deal about the Indian perspective relating to the inter-country

adoption. Adoption is a beautiful means to enhance the lives of children and parents

alike. Its a way to secure a right of every child to a caring family environment ; a

permanent family for a child. It enables a parent-child relationship to be established

between persons not biologically related. It is defined as a process by which people take

children not born to them and raises them as a member of their family. In country like

India where adoption is a century old tradition for Hindus. Inter-state adoption is

definitely a major legal perspective.

3.1. THE LANDMARK CASE OF IN RE: RASIKLAL CHHAGANLAL METHA

In the case of In Re: Rasiklal Chhaganlal Metha23 the question of inter-country

adoption was first debated, whereby the Court held that inter-country adoptions

under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally

valid.24 The sections says that the adoptive parents must fulfil the requirements of law of

adoptions in their country and must have the requisite permission to adopt from the

appropriate authority thereby ensuring that the child would not suffer in immigration and

obtaining nationality in the adoptive parents’ country.25

The Indian Council of Social Welfare has defined an inter-country adoption as one in

which “the adopters and the child do not have the same nationality as well as one in

which the habitual residence of the adopters and the child is in different countries”.26 The

23 A.I.R. 1982 Gujarat 193.

24 Sec-9(4) - Persons capable of giving in adoption - Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

25 A.G.Gupte, Hindu Law, Premier Publishing Co., Allahabad, 2003, Pg. 768.

26 Ibid.


[10]

Indian Council of Social Welfare has pointed out that inter-country adoption is not a

simple matter. They involve a variety of principles and procedures over migration,

citizenship, the socio-economic situation of adoptive parents, matching parents with the

child, and the acceptance of the child in a different community and culture. Therefore, the

Indian Council of Social Welfare has recommended that in the interests of the child it is

necessary to regulate inter-country adoption by legislations and by strict collaboration

between qualified and au theorized personal and social authorities. The end result of the

process will be that adoption would not be mere legalistic in approach but the creation of

an environment in which the child can grow with the same nationality. However, since

there are more children in need of homes than there are parents forthcoming, inter-

country adoptions are filling the gap. The Indian Council of Social Welfare has,

therefore, also focused attention to this matter specially to ensure that the child's interest

is secured in cases of such adoptions.27

3.2. CASE OF LAXMI KANT PANDEY V. UNION OF INDIA

The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v.

Union of India,28 had framed the guidelines governing inter-country adoptions (Ref.

Annexure A) for the benefit of the Ministry of Welfare, Government of India. The

main objective, as held by the Court was to prevent trafficking of children and to protect

the welfare of adopted children so that the evils of the inter-country adoption can be

prevented to a certain extent. Furthermore, the apex court in the judgment of the instant

case had also pointed out that in ordinary circumstances the court, entertaining an

application on behalf of a foreigner seeking to be appointed guardian of a child with a

view to eventual adoption, should not insist on the foreigner making a deposit by way of

security for due performance of the obligations undertaken by him. However, in certain

cases, the court may pass an exceptional order requiring him or her to make such deposit.

27 Amicus Curiae and D.D. Vyas, Adv. for the Indian Council of Social Welfare, in the case of In Re: Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193.

28 A.I.R. 1984 S.C. 469.


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The court has also observed that it is at that point of time that the execution of a bond

would ordinarily be sufficient.29

Justice Bhagwati while giving its second supplemental judgment in the Laxmi Kant

Pandey’s v. Union of India30, have opined that -

“We would, therefore, direct that in case of a foreigner who has been living in India for

one year or more, the home-study report and other connected documents may be allowed

to be prepared by the recognised placement agency which is processing the application of

such foreigner for guardianship of a child with a view to its eventual adoption and that in

such a case the Court should not insist on sponsoring of such foreigner by a social or

child welfare agency based in the country to which such foreigner belongs nor should a

home-study report in respect of such foreigner be required to be obtained from any such

foreign social or child welfare agency, the home study report and other connected

documents prepared by the recognized placement agency should be regarded as

sufficient.”

The Court further held that - If it was not possible to find suitable adoptive parents for the

child within the country, it may become necessary to give the child in adoption to foreign

parents rather than allow the child to grow up in an orphanage or an institution where it

will have no family life and no love and affection of parents and quite often, in the

socioeconomic conditions prevailing in the country, it might have to lead the life of a

destitute, half clad, half-hungry and suffering from malnutrition and

illness.31 Thus foreign adoption was held to be consistent with India’s National Policy on

Children.

3.3. Other Significant Cases

Recently, the Delhi Court in Maria Chaya Schupp, A German National represented by

her Constituted Attorney, Smt. Geeta Menon v. The Director General of Police and

29 Laxmi Kant Pandey v. Union of India, A.I.R. 1984 S.C. 469.

30 Ibid

31 Re: Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193.


[12]

Ors.32 had held that it is essential for all the adoption to carefully scrutinize all the

adoption documents along with taking down the relevant permissions from the biological

parents before going for an inter-country adoption. A similar view was held in the case of

Mr. Craig Allen Coates S/o Mr. Roger Marvin Coates and Ms. Cynthia Ann Coates

W/o Mr. Craig Allen Coates through Mrs. Rekha Arora Adoption Officer Welfare

Home for Children v. State through Indian Council for Child Welfare and Welfare

Home for Children33 whereby the Court held that 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 and that CARA (details regarding

CARA will be discussed later) should ensure more stricter guidelines in this regard.

However, the apex court in Anokha v. State of Rajasthan34 had held that the above

guidelines would not be applicable where the child is living with his or her biological

parent(s) and who have agreed that he or she is to be given in adoption to a foreign

couple known to them. The court in such cases has to deal with the application

under section 735 of the Guardian and Wards Act 189036 and dispose of the same after

being satisfied that the child is being given in adoption voluntarily with the parents being

aware of the implications of adoption, i.e. that the child would legally belong to the

adoptive parents’ family; that the adoption is not induced by any extraneous reasons such

as the receipt of money etc; that the adoptive parents have produced evidence in support

of their suitability; and finally that the arrangement would be in the best interest of the

child.

32 2010 CriLJ 883.

33 162(2009) DLT 605.

34 2006(1) Hindu Law Reporter 122.

35 7. Power of the court to make order as to guardianship

(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made- (a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the court may make an order accordingly.

36 Guardian and Wards Act 1890, <http://wcd.nic.in/gawaact.htm> last accessed on Nov 6, 2010 at 9:45 IST.


http://wcd.nic.in/gawaact.htm

[13]

However, the Supreme Court in St. Theresa’s Tender Loving Care Home and others v.

States of Andhra Pradesh 37, had dissented with the adoption procedures by observing

that –

“While making the requisite and prescribed exercise it has to be kept in

mind that the child is a precious gift and merely because he or she for

various reasons is abandoned by the parents that cannot be a reason for

further neglect by the society.”

CHAPTER IV

4. CENTRAL ADOPTION RESOURCE AUTHORITY

(CARA) 37 2006(1) Hindu Law Reporter 122.


[14]

The Central Adoption Resource Authority (CARA) is an Autonomous Body under the

Ministry of Women and Child Development, Government of India. Its mandate is to find

a loving and caring family for every orphan/destitute/surrendered child in the country.

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 May 1990.

Pursuant to a decision of the Union Cabinet dated 2 July 1998, the then Ministry of

Social Justice and Empowerment conferred the autonomous status on CARA with effect

from 18 March 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 and

Empowerment on 17 July 2003 for the implementation of the Hague Convention on

Protection of Children & Cooperation in respect of Inter-country Adoption (1993). The

Ministry of Women & Child Development has of late been mandated to look after the

subject matters ‘Adoption’ and ‘Juvenile Justice (Care & Protection of Children) Act,

2000’ pursuant to 16 February 2006 notification of Government of India regarding

reallocation of the Business.38 The goal is to find a family for as many orphan children as

possible and to safeguard their interests as visualized in the UN Convention on Child

Rights and Hague Convention on Inter-country Adoption (both ratified by India). 39

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 recognised or licensed by

the government of the country in which the foreigner is resident. The agency should be

recognised by CARA. In-country Adoption of Indian children is governed by In-country

Guidelines-2004 while Inter-country Adoption procedure is governed by a set of

Guidelines last issued on 14 February 2006 (CARA guidelines). These Guidelines are a

follow up of various directions given by the Supreme Court of India in Laxmi Kant

Pandey v. Union of India.40 These Guidelines have been amended and updated from time

to time keeping in mind the welfare of such child. While CARA is engaged in clearing

38 About Central Adoption Resource Authority, <http://www.adoptionindia.nic.in/about_us.htm> last accessed on Nov 6, 2010 at 10:12 IST.

39 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last accessed on Nov 7, 2010 at 7:22 IST.

40 A.I.R. 1984 S.C. 469.


[15]

inter-country adoption of Indian children, its principal aim is to promote in-country

adoption. In fact, CARA ensures that no Indian child is given for inter-country adoption

without him/her having been considered by Indian families residing in India. CARA 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.41

While CARA is the nodal body set up at the governmental level, the actual functioning of

individual adoption agencies is monitored by Voluntary Coordinating Agencies (VCA)

like the Coordinating Voluntary Adoption Resource Agency (CVARA) in Delhi, and

other local bodies in other states.42

The local VCA in Delhi, CVARA was formed in 1984, on the recommendations of the

Supreme Court. The ten adoption agencies that come under its umbrella are:

SOS Children's Villages of India

Holy Cross Social Service Centre

Missionaries of Charity

Church of North India

Welfare Home for Children

Delhi Council for Child Welfare

Matri Chhaya

Children of the World

Right to Life Society

Asharan orphanage

Prof. M.N. Das observed the importance of CARA guidelines in a precise manner in his

book that –

“Firstly, it will help to reduce, if not eliminate altogether, the possibility of profiteering

and trafficking in children, because if a foreigner were allowed to contact directly

agencies or individuals in India for the purpose of obtaining a child in adoption, he might,

41 Supra note 38.

42 Adoption in India: the legal angle, <http://www.mothersspace.in/getting-pregnant/adoption/adoption-in-india-the-legal-angle/35> last accessed on Nov 7, 2010 at 19:22 IST.


[16]

in his anxiety to secure a child for adoption, be induced or persuaded to pay any

unconscionable or unreasonable amount which might be demanded by the agency or

individual procuring the child.

Secondly, it would be almost impossible for the court to satisfy itself that the foreigner

who wishes to take the child in adoption would be suitable as a parent for the child and

whether he would be able to provide a stable and secured family life to the child and

would be able to handle trans-racial, transcultural and trans-national problems likely to

arise from such adoption, because, where the application for adopting a child has not

been sponsored by a social or child welfare agency in the country of the foreigner, there

would be no proper and satisfactory home study report on which the court can rely.

Thirdly, in such a case, where the application of a foreigner for taking a child in adoption

is made directly without the intervention of social or child welfare agency, there would

be no 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 and affection

with moral and material security assured to it.”43

CARA will approve/authorize and maintain a list of all Enlisted Foreign Adoption

Agencies EFAAs) who can forward applications of foreign prospective adoptive parents

including NRIs (Non Resident Indians) to it for approval.44 It will recognize/accredit

Indian Placement Agencies for Inter-country Adoption (RIPA). It shall publish once a

year a list of RIPAs in leading national and vernaculars newspapers. CARA shall send

this list once a year to the High Courts in the country for circulation to the District

Courts. RIPAs shall function as accredited bodies as per the Hague Convention of 1993.

(Ref. Annexure B)

4.1. Procedure for adoption from India by NRIS/OCIS/ PIOS/Foreighners

43 Guardians and Wards Act, Eastern Law House: India, 14th edition, 1995, pg 80–81.

44 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last accessed on Nov 7, 2010 at 7:22 IST.


[17]

In the light of Supreme Court directions in L.K.Pandey v. Union of India and guidelines

issued by various High Courts in the country and India ratifying Hague Convention on

Inter-country Country Adoption in the year 2003, it has now been decided to receive all

applications from all prospective NRI/OCI/PIO/Foreign adoptive parents directly from

Central Authority/Government Department or EFAA at CARA. The procedure will be

followed as under and termed as

“Adoption proceedings under the Hague Convention”.45

4.1.1. Step I (Registration for NRI/OCI/PIO/Foreign PAPs)

All PAPs may register with the nearest Enlisted Foreign Adoption Agencies

(EFAA) and Central Authority/Government Department dealing with adoption

matters. Nearest Indian Diplomatic Mission or Central Adoption Resource

Agency, New Delhi are contact points for adoption information/application

form/checklist of documents.

45 Child Adoption Policies in india, < http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.doc>last accessed on Nov 7, 2010 at 7:22 IST.


[18]

The applicants will have to contact or register with an Enlisted Foreign Adoption

Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they

are resident.46

The applicants will have to contact or register with an Enlisted Foreign Adoption

Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they

are resident.

The applicants should obtain the permission of the competent authority for

adopting a child from India. Where such Central Authorities or Government

departments are not available, then the applications may be sent by the EFAA

with requisite documents including documentary proof that the applicant is

permitted to adopt from India. However, NRI and OCI parents residing in Middle

East are exempted from such permission as adoption is not recognized in such

countries.

4.1.2. Step II (Home Study and Other requirements)

A home study report of the prospective adoptive parents will be prepared based

on the standard Guidelines by the professional social worker of the EFAA or

Central Authority/Government Department dealing with adoption matters. The

adoption application should contain all documents prescribed in. All documents

are to be notarized. The signature of the notary is either to be attested by the

Indian Embassy/High Commission or the appropriate Govt. Department of the

receiving country. If the documents are in any language other than English, then

the originals must be accompanied by attested translations (see apostle

convention).47

46 Procedure for Inter-country adoption, <http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm> last accessed on Nov 7, 2010 at 4:54 IST.

47 Apostle convention, <http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37> last accessed on Nov 7, 2010 at 4:54 IST.


http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37

http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm

[19]

Each application should include all the required documents along with

authentications and translations in English if required so. In addition, each

application should indicate any preferences the prospective adoptive parents

might have about the child’s age, sex, physical/medical condition, or region of

origin within India.

4.1.3. Step III (Advance NOC to PAPs by CARA)

EFAA/CA/concerned Government Department of the receiving country has to

submit copies of the adoption applications (not original) directly to the CARA for

consideration. On receiving complete dossier, CARA shall make entry into the

central registry and approve the same.

Applications may also be forwarded through concerned CA/Government

Department. On receiving dossaire, a case file will be opened at CARA and it will

advise the PAPs through their sponsoring agency whether additional documents

are required.

Once CARA approves the application, it will communicate the

EFAA/CA/Government Department to send the original proposal to the particular

RIPA for arranging a suitable match if already indicated on the application;

otherwise, CARA shall suggest the name of alternate SAA (RIPA) to send its

original dossier where children are available for inter-country adoption to respond

to such applications. Initial approval given by CARA to the PAPs will no way

guarantee referral from India nor it will be obligatory on the part of CARA to

match a child. Any referral depends upon availability of children for inter-country

adoption.48

48Draft Guidelines on Adoption, < http://csa.org.in/DRAFT%20GUIDELINES%20ON%20ADOPTION.doc> last accessed on Nov 7, 2010 at 4:54 IST.


[20]

4.1.4. Step IV (Matching, Referral, Consent and confirmation of adoption proposal)

SAA (RIPA) shall be responsible for placement decision, matching and referral to

PAPs in each case. RIPA need not transmit matching information to prospective

adopters directly, on the other hand, it will transmit such information to the

EFAA/CA/Govt. Department as the case may be as required under regulations of

Hague Convention.

On receiving information about CARA’s initial approval and further original

dossier of the PAP, the SAA (RIPA) shall make every effort to match a child

according to the choice given by the PAPs and accordingly it shall forward the

sponsoring agency a copy of the CSR and PER of the child along with a letter of

introduction about the child. This document is commonly called a ‘referral.’

Once the matching information has been received and discussed by the adoption

agency with the PAPs, the PAPs then may visit the child in India. At this stage,

the child can not be entrusted to PAPs as a result of this initial visits to/meetings

with, the child.

On acceptance of the child by the PAPs, the sponsoring agency shall transmit its

original copy to RIPA and photocopy/scanning copy to CARA. CARA shall

maintain an online updating system to enable PAPs to see their status of

applications.

If prospective adoptive parents are declined to accept referral in consecutive 3

times, in such case, the PAPs may be advised by the EFAA/CA/Government

Department to withdraw their application for adoption from India. SAA (RIPA)

requires a response on a referral within 4 weeks of sending a referral to a family.


[21]

PAPs are advised to visit the proposed child if they so desire after referral. Copy

of any communication between SAA (RIPA) and foreign agency/authority shall

be endorsed to CARA and it will endorse copy of relevant communication to the

sponsoring agency or RIPA as the case may be.

CARA shall maintain a list of special needs children on its website which will be

updated from time to time for the benefit of PAPs and children. For such children,

PAPs may approach CARA through their EFAA/CA/Government Department

and CARA in such cases shall assist the SAAs to expeditiously send referrals to

PAPs.

4.1.5. Step V (Issue of No Objection Certificate to Child by CARA)

CARA shall expeditiously issue NOC at this stage since it has already received

HSR from the sponsoring agency, SARA Clearance from the State and CSR/PER

initially from SAA and later their acceptance through the sponsoring agency.

NOC (No Objection Certificate) issued by CARA conveys that CARA has no

objection to the adoption proposal and a copy of it shall be mailed to RIPA,

SARA, CA, EFAA.

Once the PAPs have received they may proceed to obtain a Court Order in India

No SAA can file an application in the competent court for inter-country adoption

without a “No Objection Certificate” from CARA and no child(orphan,

abandoned or surrendered) can be allowed to travel outside the country without

this valid document.

4.1.6. Step VI (Filing of Petition in the Court)


[22]

On receipt of the NOC from CARA, the RIPA shall file a petition for adoption in

the competent court as far as possible within 15 days if the court is not closed.

The competent court may dispose the case as early as possible in the first hearing

itself or within a maximum period of 2 months and issue an appropriate order for

the placement of the child with the PAP and allow the PAP to take out of the

country.

On receiving the Court Order, RIPA shall immediately transmit a copy of it to

CARA and SARA following which CARA will issue a certificate under Article

23 of the Hague Convention. The Hague Convention requires all States that have

signed the Convention to recognize adoptions, which have been certified under

Article 23. Through such process, the child might acquire automatic

citizenship/nationality and enjoy more safeguards.

4.1.7. Step VII (Passport and Visa)

SAA (RIPA) has to apply in the Regional Passport Office for obtaining an Indian

Passport in favour of the child. The concerned Regional Passport Officer may

issue the Passport within 10 days. Thereafter the VISA entry permit may be

issued by the Consulate/Embassy/High Commission of the concerned country for

the child.

4.1.8. Step VIII (Child travels to adoptive country)

The adoptive parent/parents will have to come to India and accompany the child

back to their country. They are required to spend at least one week with the child.

By doing so, they get a chance to mingle with the baby before making final

departure, they get to know more information about the baby’s food habits and

attitudes from the child care staff of the adoption agency. Escorting a child by the

RIPA is not permitted.


[23]

CHAPTER V

5. STATUTES GOVERNING INTER-STATE ADOPTION IN

INDIA

Adoption as a legal concept was available only among the members of the Hindu

community except where custom permits such adoption for any section of the polity.

Only Hindus were allowed to legally adopt the children and the other communities could

only act as legal guardians of the children.

The religion-specific nature of adoption laws was a very retrograde step. It reinforced

practices that were unjust to children and hindered the formation of a Uniform Civil

Code.

Article 44 of the Constitution declares that:

“The State shall endeavor to secure for the citizens a Uniform Civil Code

throughout the territory of India.”

Over the years several attempts were made to formulate a general secular law on

adoption. The attempts of Parliament in this direction did not bear fruit, all these went in

vain on account of a number of reasons. The history of all such efforts does not bring

credit to the secular credentials of the Indian polity.

The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The

Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption

applicable to all communities other than the Muslim community, was opposed by the

Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt

Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the

seventies, has yet to enter the statute books. The history of attempt to bring in the concept

of secular adoption into our system of laws narrates a sad tale of inaction and action

without conviction on the part of the legislature.


[24]

5.1. Juvenile Justice (Care and Protection of Children) Act, 2006

The Juvenile Justice (Care and Protection of Children) Act, 2006 has been enacted

for the benefit of all the children as well as parents irrespective of their religion, caste and

gender.

Thus all such adoptable children who falls under the category of children in need of

care and protection49 shall be processed under this specific legislation by district courts,

city civil courts, family court and other appropriate courts as defined under the State

Juvenile Justice Rules and framed based on the above Act.50This Act focuses on child

legislation and guarantees rights to an adopted child as recognized under international

obligations by all Hague member countries. Thus, it will ensure that in cases of orphan,

abandoned and surrendered children which will have to be processed under the Act so

that isolated children have adequate safeguards in their placement.51

Sec.41 of Juvenile Justice Act, 2000 read with Rule 33(1) of Central Rules expresses the

following aspects of adoption:

"The primary aim of adoption is to provide a child who can’t be cared for

by his biological parents with a permanent substitute family. The family of

a child has the primary responsibility to provide him care and protection.

Orphan, abandoned or surrendered children can be adopted for their

rehabilitation through such mechanism as may be prescribed. Such

children may be given in adoption by a Court in keeping with the

provisions of several guidelines regarding adoption issued by the State

Govt./Central Adoption Resource Authority and notified by the Central

Govt. But the Court should be satisfied with the investigation having

carried out which are required for giving such children in adoption.”

49 Sec. 2 (d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 available at <http://wcd.nic.in/childprot/jjact2000.pdf > last accessed on 15 Sep 2010 at 9:45 IST.

50 Rule 33 (5) of the Central Rules under the Juvenile Justice (Care & Protection of Children) Act, 2000.

51 Section 41 of the Act, 2000.


http://wcd.nic.in/childprot/jjact2000.pdf

[25]

The Children’s Homes and institutions run by the State Govt. or voluntary organizations

for children in need of care and protection who are orphan, abandoned or surrendered,

should ensure that these children are declared free for adoption by the Committee (Child

Welfare Committee) and such cases shall be referred to the adoption agency of that

district for their placement in adoption The guidelines issued by the CARA and notified

by the Central Govt. U/s 41(3) of the Act, shall apply for all matters relating to

adoption. Now, it is necessary to explain what Child Welfare Committee is?

As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression “Committee” means a

Child Welfare Committee constituted U/s 29 of the Act. Sec. 29 of the Juvenile Justice

Act, 2000 provides for the Child Welfare Committee. The Committee has the sole

authority to declare the child in need of care and protection who are orphan, abandoned

or surrendered free for adoption. CWC shall determine legal status of all orphans,

abandoned and surrendered children. Functions and powers of the Committee, procedure

in relation to the Committee, production of child before committee, procedure for

inquiry, procedure related to orphan and abandoned children and procedure related to

surrendered children shall be governed as laid down in the Juvenile Justice Amendment

Act 2006 and its Rules.52

The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its

subsequent amendment in 2006 is definitely a significant effort of the legislature towards

recognition of adoption of orphan, abandoned and surrendered children by people

irrespective of their religious status. It can’t be denied that it is a secular legislation only

under which any person can adopt a child of orphan, abandoned and surrendered child

irrespective of his/her religion. It is more children oriented unlike other legislations. But

it may be mentioned at the same time that some more factors need to be considered

specifically by the legislature.

Firstly this Act stipulates adoption by any person irrespective of his/her marital status,

but it does not specify whether the consent of the other spouse is required to be obtained

by the adopting spouse in case adoption by a married couple. This might create

52 Adoption Under juvenile Justice Act, < http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html> last accessed on 20 October 2010 at 23:44 IST.


http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html

http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html

[26]

misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife

by her husband is an essential criteria for adoption.

Secondly, the expression “Court” has not been specifically defined for the purpose of

adoption under this Act as a result of unwarranted mistakes/misconception arises

frequently in filing the application for adoption by the adoptive parents.

Thirdly, the Act is silent about the criteria for age difference between the adoptee and

adoptive parents in case they are of opposite sex. This is an essential factor for adoption,

which should be considered seriously for the purpose of preventing child abuse and

trafficking.

All these facts are obviously applicable to all religions and therefore, it is necessary to

specify them for the interest of the children. We should never forget the thrust of the

National Policy for the Welfare of Children (1974) that

“The Nation's children are a supremely important asset. Their nurture and

solicitude are our responsibility”.

CHAPTER VI

6. GUIDELINES PROVIDED BY UN


[27]

Under the Indian Constitution, Article 24 of the Indian Constitution provides for the right

against exploitation of the children below 14 years whereas Article 45 of the Directive

Principles of the State Policy in the Indian Constitution envisages for free and

compulsory education of children. At the International level, India has ratified the

convention on the Rights of Child and the Hague Convention on inter- country adoption

of children.

In the current chapter we will discuss about the international guidelines regarding the

inter-state adoptions.

6.1. The Hague Convention and the ratification on inter-country adoption

by the Government of India on 6th June, 2003

Due to the increase in international adoptions, in 1993, the Hague Convention on the

Protection of Children and Co-operation in Respect of Inter-country Adoption was

signed to create an international framework for arranging and formalizing these adoptions

and to prevent its abuses.53The Convention relies on cooperation between participating

states to safeguard children in the adoption process.54The states of origin takes the

responsibility for ensuring that children are made "adoptable," (i.e. when all the legal

requirements are met) while the receiving states take the responsibility for the suitability

of the applicants and in the event of only where both agree that the adoption should

proceed can it be finalized.55 Adoptions are recognized whether they take place in the

state of origin or the receiving state.

The Hague Convention had set out a framework for inter-country adoption and provides

for its implementation through central authorities. Its main objectives is to improve inter-

country adoption along with providing child welfare solutions which is dependent both

53 Articles 4, 5 and 17 of the Hague Convention, <http://www.hcch.net/upload/conventions/txt33en.pdf> last accessed on 6 Nov 2010 at 23:44 IST.

54 <http://www.allbusiness.com/government/3493265-1.html> last accessed on 6 November 2010 at 23:44 IST.

55 Article 15 , 16, 17, 18 and 19 of the Hague Convention, <http://www.hcch.net/upload/conventions/txt33en.pdf> last accessed on 6 Nov 2010 at 23:44 IST.


http://www.allbusiness.com/government/3493265-1.html

http://www.hcch.net/upload/conventions/txt33en.pdf

http://www.hcch.net/upload/conventions/txt33en.pdf

[28]

on an adequate legal framework and adoption professionals who can centre the interests

of the child.

Since then, modern day adoptions have undergone transitions in response to growing

professionalism, specialization within welfare services, greater diversity in accepted

family units, the move from institutional to family care for children in need, and major

reductions in the number of babies surrendered for adoption. Together, all of these have

fundamentally changed the way adoption is systematized and the relationships created or

legalized by adoption. These developments have implications for inter-country adoption;

because they make understandings of good practice amongst adoption agents and

legislators, along with the fact that it is widely accepted with equivalent standards and

practices which should apply to all adoptions.

6.2. The Conventions on the Rights of the Child (CRC)

Except the United States, almost every sovereign nation, including India, adheres to the

CRC.56 The CRC’s objective in this regard is to “recognize that inter-country adoption

may be considered as an alternative means of child’s care, if the child cannot be placed in

a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s

country of origin.”57 However unlike the Hague Convention, the CRC specifically

prefers in-country foster care over inter-country adoption.58 This view has also been

supported by the United Nation’s Children Fund (UNICEF).59

The CRC thus seeks to ensure:

56 Johan D. van der Vyver, “American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness,” 50 EMORY L.J., Pg. 775, 778 (2001)

57 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448; art. 21(b), 28 I.L.M. at 146.

58 William L. Pierce, Accreditation of Those Who Arrange Adoptions Under the Hague Convention on Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of Children, 12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996).

59 UNICEF, UNICEF’S Position on inter-country adoptions available at <http://www.unicef.org/media/media_41918.html> last accessed on 6 November 2010 at 18:36 IST.


http://www.unicef.org/media/media_41918.html

[29]

1. the use of the “best interests of the child”;60

2. safeguarding of the process in which adults (such as parents) relinquish children

for adoption, through a requirement of government approval, use of an “informed

consent” standard for relinquishments, and the provision of counselling “as may

be necessary”;61 and

3. Government safeguards against improper financial gain in inter-country

adoption.62

CHAPTER V

60 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), Art. 3, para. 1

61 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), Art. 21(a).

62 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), Art. 21(d).


[30]

CONCLUSION

For quite a long time, there has been an increasing demand for a universal law on

adoption which would enable any person who wishes to adopt a child can do so

irrespective of his religion, race or caste. As all the major embassies in India follow

rigorous guidelines in dealing with adoption applications in the inter-country adoption

mechanism, the rate of refusal is extremely high without any room for compassion. With

the amount of formalities as demanded by the authorities, the childless non-resident

Indian and foreign couples face a lot of hassles and hardships.

Even after so many disputes, the revised guidelines of the Juvenile Justice Act have failed

to make a clear standing on this issue regarding inter-country adoptions. In the case

of John Clements v. All Concerned63 whereby the Andhra Pradesh High Court observed

that -

“Para 2.14 of the guidelines envisages that no application by foreigner

for taking a child in adoption should be entertained directly by any

social child welfare agency in India working in the areas of inter-

country adoption or by any institution or centre or Home to which

children are committed by the Juvenile Court. However, the very next

paragraph says “the original application along with original documents

as prescribed by the Supreme Court of India would be forwarded by the

foreign enlisted agency to a recognised placement agency in India”.64

Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the

judgment of the Supreme Court and started directly approaching the adoption agencies in

India. They then take the Indian children in adoption with their involvement and active

support of CARA officials, who are simply putting their seal of approval without

inspecting the records of such adoption which is taking place. As a result, trafficking in

63 AP (2003) 2 Hindu Law Reporter 331

64 Inter-country adoptions in India, < http://www.docstoc.com/docs/18657623/INTER-COUNTRY-

ADOPTION-IN-INDIA> last accessed on 6 November 2010 at 20:43 IST.


[31]

female children is going on unrestricted in violation of the guidelines given by the

Supreme Court.

Consequently, the present loophole of law came to light and thereafter the Government of

Andhra Pradesh issued the Andhra Pradesh Orphanages and other Charitable Homes

(Supervision and Control) Rules.65 It states that “relinquishment” of child by “biological

parents” on family grounds of poverty, number of children, unwanted girl child will not

be permitted. Such children should not be admitted in Homes or “Orphanages” and, it

admitted, the license and recognition of Home or Orphanage shall be cancelled or

withdrawn.’66

All adoptions are to be processed by maintaining proper precautions and by compliance

of due process of law, both in India and abroad. The core issues lies in the recognition of

adoption orders handed down by the designated courts in India through the amended

provisions of the Juvenile Justice Act of 2006.

The agencies in receiving countries need to be conscious of the general living conditions

for children in sending countries as well as their culture, laws and practice. Similarly,

agencies in sending countries need to be aware of the conditions in the countries where

children are being sent. Where strong links are made between agencies and countries,

adopters and children are more likely to be able to share their happy experiences with

others. This can alleviate the isolation that people adopted outside their country of origin

can feel.67

It is a common situation in India that the 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 as discussed in this article. Hence, in this regard,

a uniform but stringent procedure must be developed which can be easily followed and

65 GO Ms No 16, dated 18.04.2001

66 In para 11 (VII) of the Andhra Pradesh Orphanages and other Charitable Homes (Supervision and Control) Rule, 2001

67 J.S. Sjoren, "A Ghost in My Own Country," Adoption and Fostering 20, 2 (1996) pp. 32-35; S. Jardine, "In Whose Interests?" in P. Selman, ed., p. 488


[32]

observed in regard to human spirit. For the entire adoption process, all procedural hurdles

along with legal and official procedures are required to be met for a smooth adoption

process without any abuse. However, separate and sophisticated adoption and

immigration procedures often leave foreign adopting parents in confusion over differing

interpretations as to the prevailing laws of the home country and the adoption country.

Thus the adoption process in India is tedious and is involved by all sorts of unnecessary

legal and social restrictions. It is an irony that in a country with so many homeless

children, there’s a long waiting list of couples waiting to adopt them. Therefore, it is

required that the entire adoption process and procedures are revamped so that they

conform to a uniform pattern (like an Uniform Civil code as provided under Article 44 of

the Constitution of India) which will make the process more suitable, less burdensome

and easier to follow. The paramount importance is the keeping the best interest of the

child along with both the letter and spirit of law to be adhered to. 68

A system needs to be created whereby these multiple adoption agencies must be declared

free from corruption through bribery and personal connections. Once it becomes apparent

that approvals are based on such personal connections or monetary inducements,

incentives to follow the rules may disappear. The presence of money can subvert the

fundamental principles of inter-country adoption, which favour the maintenance of the

child within the birth family, where feasible, and favour in-country adoptive placement

over inter-country adoption. There must be some legislation in place to prevent couples

from going for adoption even after having one or two biological children of their own,

like we have the celebrity Angelina Jolie who is in the process of adopting another child

even after having three biological children of her own and three adopted ones.69

Since foreign money is available, Indian agencies may be transformed from social

welfare organizations assisting families and orphans to foreign adoption profiteers

68 <http://www.allindiareporter.in/articles/index.php?article=1543> last accessed on 6 November 2010 at 18:36 IST.

69 Angelina Jolie and Brad Pitt to adopt child number seven,

<http://www.telegraph.co.uk/news/newstopics/celebritynews/3211078/Angelina-Jolie-and-Brad-Pitt-to-adopt-child-number-seven.html> last accessed on 6 November 2010 at 18:36 IST.


http://www.allindiareporter.in/articles/index.php?article=1543

http://www.telegraph.co.uk/news/newstopics/celebritynews/3211078/Angelina-Jolie-and-Brad-Pitt-to-adopt-child-number-seven.html

http://www.telegraph.co.uk/news/newstopics/celebritynews/3211078/Angelina-Jolie-and-Brad-Pitt-to-adopt-child-number-seven.html

[33]

scouting the countryside for children. Instead of offering counselling, services, or help

designed to allow a child to remain within her birth family, agencies will systematically

offer money to birth parents to induce relinquishment. Agencies will thus go into the

business of deliberately producing “paper” orphans, who when placed in foreign adoption

become an immensely profitable product. Similarly, obstacles to in-country adoption will

be systematically constructed when proportionately huge amounts of money can be made

for foreign placements. Agencies will prefer to place a child out-of country and receive

literally thousands of dollars, a year’s salary for a middle class Indian, rather than place

the child in-country and receive less than $100.70 This needs to be avoided.

It has been seen that the children are a supreme and chief asset to the nation. The nation’s

responsibilities are to nurture them as they are the future citizens of the country. All the

Children’s programs should be given a conspicuous part in the national plans for the

development of human resources so that children grow up to become robust citizens;

physically fit, mentally alert and morally healthy endowed with the skills and motivation

needed by the society.71 The aim is to provide equal opportunities for development to all

children during the period of growth, as this will serve larger purposes of reducing

inequality and increasing social justice.

Those who care about children should act now to preserve and promote international

adoption. It represents the best option for existing orphan children. It serves the interests

of birth parents who care about the children they cannot raise. It brings new resources

into poor sending countries to help improve conditions for the children left behind. It

represents the way forward to a world in which we recognize children as citizens of a

global community with basic human rights entitlements, a world in which we recognize

adults in that community as having responsibilities to all its members.

70 Conflict Of Laws In Inter - Country Adoptions – An Indian Perspective,

<http://www.allindiareporter.in/articles/index.php?article=1543> last accessed on 6 November 2010 at

3:21 IST.

71Ibid.


http://www.allindiareporter.in/articles/index.php?article=1543

[34]

To conclude this research paper, I would like to bring into notice the conclusions drawn

up by the national policy of India for welfare of children in India.The idea is to protect

the abandoned and destitute children and help them to find a family as far as possible and

to safeguard their interest as visualized in the UN Convention on child rights and Hague

Convention on Inter country adoption ratified by India government.72 The ‘Best Interest

of the Child’ is the guiding principle behind all adoption laws in India and social

awareness programs has helped to change the attitude of society and people towards

adoption in India.73

After going through the plethora of thoughts as discussed in this article, we can divide

our conclusion into two schools of thoughts i.e. the traditional and the contemporary.

Under the traditional school, we have the Uniform Civil Code as provided under Art – 44

of the Indian Constitution along with various other Constitutional and Civil provisions.

On the other hand under the Contemporary school, we have the modern Public

International Law. The Government of India should come up with a model to facilitate

inter-country adoptions in a smoother and hassle freeway. The laws should be made

uniform for all religious communities and the government agencies which are involved in

adoption procedures should work hand in hand for the best interest of the child and also

for the adoptive parents. Selfish interests should be removed. The international

community and the laws should also try to pitch in with their efforts in helping the

parents going for inter-country adoption in a less complicated way. Above all, the

countries of the world should coordinate with each other for the betterment of the

child who will be the future citizens of their respective countries.

72 National Policy for the Welfare of Children, 1974 available at http://www.indg.in/primary-education/policiesandschemes/national_policy_for_children_1974.pdf last accessed on 12-11-2010

73 A.S. Shenoy, Child Adoption Policies in India- A Review available at <www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.d> last accessed on 12-11- 2010


http://www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.d

http://www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.d

http://www.indg.in/primary-education/policiesandschemes/national_policy_for_children_1974.pdf

[xxxv]

BBIBLIOGRAPHYIBLIOGRAPHY

OTHER AUTHORITIES Johan D. van der Vyver, American Exceptionalism: Human Rights, International

Criminal Justice, and National Self-Righteousness, 50 EMORY L.J., (2001)William L. Pierce, Accreditation of Those Who Arrange Adoptions Under the Hague

Convention on Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of Children, 12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996).

BOOKS REFFERED Gupte, A.G., Hindu Law, Premier Publishing Co., Allahabad, 2003.Preet, Gagan, Hindu Adoption-A journey from Past to Present, Paradise Publishers,

Jaipur, 2010.

INTERNET SOURCE CITED

< http://www.adoptionindia.nic.in/about_us.htm>< http://www.adoptionindia.nic.in/adoptionfromindia.htm>< http://www.adoptivefamilies.com/news.php>< http://www.c-c-c.org/>< http://www.docstoc.com/docs/18657623/INTER-COUNTRY-ADOPTION-IN-INDIA>< http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child%20Adoption

%203%2007.doc>< http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-

Act.html><http://en.wikipedia.org/wiki/International_adoption><http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37><http://uai-news.blogspot.com/2010/01/malawi-as-example-for-haiti.html><http://www.adoptionindia.nic.in/about_us.htm><http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm><http://www.allbusiness.com/government/3493265-1.html><http://www.britannica.com/EBchecked/topic/6298/adoption><http://www.dillonadopt.com/Korea-A.htm><http://www.hcch.net/upload/conventions/txt33en.pdf><http://www.legalservicesindia.com/articles/adopt.htm><http://www.mothersspace.in/getting-pregnant/adoption/adoption-in-india-the-legal-

angle/35><www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption%203%2007.d><http://china.adoption.com/>

JOURNALS CITED

Farr, Rachel H., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 2010


[xxxvi]

Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the Indian Adoption Scandals, Seton Hall Law Review, Vol. 35:403


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