Inter country Adoption & Private International Law

Introduction

Adoption

The word ‘Adopt’ comes from Latin ‘adoptare’, to choose. To take by choice into a relationship; especially to take voluntarily (a child from other parents) as one’s own child. [1]  Adoption is the act of legally placing a child with a parent or parents other than those to whom they were born. It can be defined as the statutory process of terminating a child’s legal rights and duties towards the natural parents and substituting similar rights and duties towards adoptive parents by establishing a parent-child relationship between persons not so related by the birth of the child. [2] For the parentless or the abandoned child, adoption means a balanced physical and psychological family environment and to the desirous parents, chances to become parents and experience family growth.

Adoption is a complex social phenomenon, intimately knitted into its family law framework and shaped by the pressures affecting the family in its local social context. It is the mirror reflecting the changes in our family life and the efforts of family law to address those changes. This has caused it to be variously defines; different societies, in the same society at different times and across a range of contemporary societies. [3]

In other words, it can be said as the judicial or administrative act that establishes a permanent legal parent-child relationship between a minor and an adult who is not already the minor’s legal parent and terminates the legal parent-child relationship between the adoptive child and any former parent(s). [4]

In Legal terms, adoption has been defined as:

…a legal method of creating between the child and one who is not the natural parent of the child an artificial family relationship analogous to that of parent and child… [5]

Or more bluntly:

… providing homes for children who need them is its primary purpose. [6]

Inter Country Adoption

Reckoning the subject matter in context of the domain of Public International Law, by virtue of which the process of adoption of a child, can assume between nationals of different states and hence the institution of adoption has become international, crossing the borders of the national legislations.

Inter-country adoption (ICA) can be defined as adoption of a child by a person of another country. ICA may be more viable choice than domestic adoption for many families especially those who want to adopt a healthy infant. [7]

ICA began primarily as a North American philanthropic response to the devastation of Europe in the World War II that resulted in thousands of orphaned Children. When the European continent was rebuilt and its economy stabilised, the problem of orphaned children was basically solved. But a revitalized economy, coupled with a reduction in Europe’s male population, led to an increased rate of childlessness. Western societies then turned to Third- World countries with high birth rates for a solution to the dearth of healthy infants in the West. This led to evolution of the concept of ICA. [8] Considering the statistics, it is the United States ranks first among the receiving nations, accounting for over half of all ICAs worldwide. ICAs from developing countries happen primarily with the demand for children increasing in developed countries and the supply rising commensurately from the developing countries. [9]

On adhering together, the related feathers it can be said that ICA is the process by which a person:

Adopts a child from a different country , through legal means; and

Bring the child to the home country to live permanently with.

Through ICA, the legal transfer of parental rights from birth parent(s) to another parent (s) takes place. [10]

Hypothesis

In the present submission on the topic of ICA, wherein diverse issues are involved when a child is adopted from a nation and finally proceeding to a different nation. The act of ICA is for the paramount welfare of the Child, but when a child is adopted few negative considerations even crop up, leading to abuse of the child in many contours.

In this project an attempt is made to analyses the problems associated with ICA like the problem of Child trafficking, loss of culture and identity, exploitation of the child, etc. So, the hypothesis which the project puts forth is the problem related to the loss of the cultural and national identity of the child adopted. When a child is adopted, the child moves from one nation to altogether to a different nation, thereby leading to the loss of the cultural and national identity of the child and further related issues therein.

The adoption of a child is not only the acceptance of a child into a new family, but the intersection of the lives of the child, the adoptive family, and the birth family. This intersection can be complicated at the best of times, bringing issues of family structure, fertility, financial stability, and social class to the surface. However, the adoption process can also raise more controversial issues, based in social/cultural beliefs, prejudices, stereotypes, or simply different priorities. For example, many of these issues may come to light when an adoption involves the exchange of a child of one race into a family with a different racial background, a process known as trans racial adoption [11] . Trans racial adoptions refers to the adoption of infants or children by parents of different race. [12] It subsumes aspects of international adoption such that the adoption involves racial and ethnic differences that are often determined by physical features. [13]

In the present section of the project, an attempt is made to deal with the legislative provisions on the issue of ICA around the globe. Considering the laws of the various nations, somewhere it can be analysed that the laws are somewhat comprehensive thereby taking into consideration the paramount interest of the child adopted. Here , firstly the Indian laws followed by the laws prevalent in the US and then the related position in the UK

Indian Perspective

Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus and by custom amongst a few numerically insignificant categories of persons. Since adoption is legal affiliation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and have to approach court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance. Foreigners, who want to adopt Indian children have to approach the court under the aforesaid Act. In case the court has given permission for the child to be taken out of the country, adoption according to a foreign law, i.e., law applicable to guardian takes place outside the country. So following is the brief analysis of Indian laws governing adoption and also the provisions relating to ICA.

The Hindu Adoptions and Maintenance Act, 1956 (HAMA)

It is the only statute in force governing adoption of children and its ambit is confined to Hindus in India. There is a legal vacuum as regards adoption by or of other communities in India. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956. This act is the only statute in force governing adoption of children and its ambit is confined to Hindus [14] . Under this act a married man, a widow, a widower, single women, or a divorced or deceased women has the capacity to adopt, if they are Hindus [15] .

The Guardianship and Wards Act, 1890 (GWA)

It is indirectly invoked by other communities to become guardians of the child during minority. The statute does not deal with adoption as such but mainly with guardian ship, and is to be read along with the personal laws or the topic as ancillary/corollary to the latter. It may be indirectly invoked, in certain cases to confer legal guardianship of children during minority. The Guardians and Wards Act, deals only with the guardians of the person and property of the minor. In appointing or declaring the guardian of a minor, the court shall be guided by what appears in the circumstances of the case to be for the welfare of the minor consistently with the law to which the minor is subject. Among the various factors to be considered by the court in the matter, the welfare of the child is one of the considerations. [16]

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

This Juvenile Justice Act Provides for the adoption of abandoned and abused children by people of all communities. §41 (3) of the JJA states that Juvenile justice boards shall be empowered to give children in adoption implying that adoptive powers are not automatic and state government must empower their  respective justice  board  but no state govt. has notified empowerment of its JJBs on adoption matters .

Juvenile Justice Amendment act allows non Hindus to adopt but there is hardly any awareness about 2006 amendment to Juvenile Justice Act. Secondly, amending the act was not enough there has to be more clarity about procedures and information how the law should be applied. Instead of getting approval of higher courts like district court and high courts (in case of the inter country adoption. Adoption should be done locally by child welfare committees and juvenile justice boards. There are no rules or infrastructure in place nor is there clarity on related issues like if the law will apply to Muslims. Juvenile Justice Amendment act will apply to all Indians but it is not clear how this law would override the provisions of other personal laws.

Adoption laws of India for Foreign Nationals:

Adoption of Indian children by foreign nationals or International Adoption is a controversial issue. In foreign countries there are innumerable cases of Indian Orphans being given secured and loving homes. But on the other hand some of the children have been used as domestic servants, beggars and even for prostitution. In the matter of L.K. Pandey v. Union of India, [17]  SC has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children.  Foreign Nationals adopt an Indian child under provisions of the Guardian and wards Act, 1890. Indian Court will appoint the foreigner as the Childs guardian. The foreign National will take the child to his country and adopt him or her as per laws of his country.

Legislative Provisions in Nations around the Globe

CARA Guidelines

Adoptions are regulated by CARA (Central adoption resource authority). CARA pointed out some of the loopholes in Indian Adoption. CARA specifies the eligibility conditions, processing steps, documentation, costs, court processes, foster care conditions, issuance of birth certificates and post adoption follow ups. [18]

In India millions of children are bound to live the life of orphanage and destitute. Today when any child is adopted we are proud of giving a decent homely life to the child. But in the absence of the common adoption code for all community members, we cannot hope the expected results. So now it is a time to reassess our laws and regulations that deal with cases of Intra country and Inter country adoptions. Government cannot try and plug loopholes in one act by amending another. The most obvious feature of the Indian system for foreign adoptions is its bureaucratic layering of multiple institutions that must approve each adoption. By creating a system where multiple institutions must approve each adoption, within the context of a system often suffering from corruption through bribery and personal connections, safeguards can instead become opportunities for abuse. The system of adoption can become one where, in order to get an adoption through the system, an individual has to either have certain personal connections, or else be willing to “grease palms.” Once it becomes apparent that approvals are based on such personal connections or monetary inducements, incentives to follow the rules may disappear. Hence it’s a high time that adoption laws in India need an amendment to bring in grater uniformity for all religions but it needs to be done more systematically. Because of uncertainty of laws governing adoption and inter country adoption in India there arises the problem of conflict of laws. Thus the legislature has to take an imitative firstly to make a uniform adoption laws for all persons living in India and also to make a concrete legislation on inter country adoption.

UNITED STATES OF AMERICA

In United States, through ICA, the legal transfer of parental rights from birth parent(s) to another parent(s) takes place. Over the last decade, U.S. families have adopted on average approximately 20,000 children from foreign nations each year. [19]

Every child benefits from a loving home in deeply profound ways.  ICA has made this permanently possible for hundreds of thousands of children worldwide.  When children cannot remain with a relative, and new parents within their communities cannot be found, ICA opens another pathway to children to receive the care, security and love that only a permanent family can provide. [20] ICA is required for the welfare and development of a child, who may get an opportunity for this in some other country. [21]

Traditional Legal Principle

Most states allow either an individual or a married couple to adopt a child. Adoption by two persons not married to each other is not permitted. Absent a specific prohibition, a child may be placed with a homosexual individual, including an individual who resides with a homosexual partner.

Legalization of Homosexual Partnership

At least four states (California, Hawaii, Massachusetts, and Vermont), though, authorize marriage or an equivalent civil union for homosexual couples. If a state allows homosexuals to marry, these couples must be allowed to adopt on the same terms as any other married couple.

If a state authorizes some form of civil union rather than marriage per se, the couple can adopt only if the statute authorizing the civil union so provides. Most of these statutes were enacted in response to judicial decisions requiring as a matter of equal protection that same-sex couples have access to the legal benefits of marriage, which would normally include the legal right to adopt.

Adoption Law Responds

Through either statutes or case law, some states have modified their adoption laws to specifically address homosexual adoption. While some have broadened homosexuals’ right to adopt, others have moved in the opposite direction, specifically prohibiting homosexual adoption. Some of these merely restate existing law by prohibiting same-sex couples and cohabiting couples from adopting. However, a few also prohibit adoption by homosexual individuals or by any individual in a cohabiting relationship [22]

Best Interests of the Child

When the state places children in a foster or adoptive home, it is responsible for assuring the placement is consistent with the child’s best interests. This responsibility requires not just that the home be “fit” or suitable, but that it be the best available placement for that particular child.

Various arguments have been made against placing children with homosexual individuals or couples. For instance, it is argued that homosexual relationships are unstable, that children parented by homosexuals are subject to harassment from their peers, and that the best environment for a child is with a married couple. The validity of these arguments will not be evaluated here, but an agency basing policy on rationales such as these must make sure there is adequate factual support for its conclusions.

The agency also must make sure that any differential treatment goes no further than is justified by the rationale. For instance, a finding that the best environment for a child is with a married couple would justify a preference for placement with married couples, but not a prohibition on placement with homosexuals. A finding that non-marital cohabiting relationships are unstable would not justify treating homosexual cohabitants differently from heterosexuals. [23]

Over a Quarter Million Children Adopted in Three Decades Between 1971 and 2001, U.S. citizens adopted 265,677 children from other countries. [24]

International Adoptions Have More Than Doubled in the Last 11 Years [25]

Internationally Adopted Girls Predominate [26]

UNITED KINGDOM

Adoption was unknown to common law, and is a creature of statute, the first of which was the Adoption of Children Act, 1926, now replaced by the Adoption Act, 1976. [27] The English courts only have jurisdiction if the applicant, or in the case of a married couple applying, one of the applicants, is in any part of the United Kingdom, and the child is in England. [28]

Although there are many children in England who are looking for an adoptive family, there are also children in other countries who need homes. ICA may be their only opportunity to have a permanent family. For humanitarian reasons, the Government allows ICA to proceed where:

The child cannot be cared for in any suitable manner in his or her own country;

The adoption would be in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; and

The adopter has been assessed as eligible and suitable to adopt from overseas by an adoption agency. [29]

Certain restrictions have been very clearly laid down in a proper act that has been passed in the UK namely the UK Children Adoption Act 2006. Such a provision is the special restrictions that have been placed under this act. The part III of this Act deals with the adoptions with foreign element. [30] This provision can be of help as it gives complete power in the hands of the British Parliament to restrict adoptions which seem to it as against public policy or as harming any involved interests. The ICA procedure can seem daunting and complicated for those who are unfamiliar with the process. [31] Adoption law differs from state to state, and federal laws also affect many procedures connected with the adoption process. [32] The UK does not impose any restrictions on which country you may adopt a child from. However, not all overseas Governments allow ICA . [33]

The 1993 Hague Convention on Protection of Children and Co-operation in respect of ICA is an international system of collaboration that aims to prevent the abduction of, sale of, or traffic in children. The Convention requires that ICA happens only where it would be in the child’s best interests, that all adopters are assessed and approved as suitable to adopt and that no profit is made from the adoption process. The UK ratified the Convention on 1 June 2003. [34]

Currently there are around 300 children adopted by UK families from overseas each year. Such adoptions can be plagued by legal and administrative complexities and many believe that the needs of these children would be better served if they were able to secure a place within a family in their country of origin. For some the idea of allowing children to be adopted by a foreign person or family, who are almost always from a very different culture, and are often of different racial origin, is a very questionable practice. [35]

Those who wish to adopt from overseas must first become an approved adopter. To do this they should contact their local social services who may carry out the home study themselves or ask another agency or independent social worker to do it for them. An individual or family can also ask a voluntary adoption agency to carry out the assessment. A home study cannot be obtained from any other organisation or individual. [36]

Most agencies which offer services related to overseas adoption are based in the U.S.A. where there has been a much greater number of overseas adoptions. Overseas agencies should not assist you to adopt a child from abroad until you have completed the process outlined above. If they offer to do so before confirming your status as an approved adopter we would strongly suggest that you should not use them. [37]

This is to explain the provisions in the Immigration Rules for children who are not British citizens or nationals of the European Economic Area to join their adoptive or prospective adoptive parent(s) in the United Kingdom. While this is only a guide and is not an authoritative statement of the law, it aims to answer the immigration questions that are most likely to arise. [38]

The Status of E.U. / E.E.A. Nationals in the United Kingdom [39]

European Economic Area, (E.E.A.) nationals residing and exercising Treaty rights in the United Kingdom are not “settled” for the purposes of the Immigration Rules, unless they have become entitled to “Permanent Residency” status in the U.K. If they do not have “Permanent Residency” they cannot sponsor the entry of a child under any of the Immigration Rules. E.E.A. Nationals can, once they can demonstrate that there has been a continuous exercise of Treaty rights in the U.K. for a period of five years, apply for a document to declare that they have acquired “Permanent Residency”. Please note that when making an application for Entry Clearance to bring a child to the U.K. under the adoption provisions in the Immigration Rules, EEA nationals must be able to demonstrate that they have acquired “Permanent Residence” in the U.K. by way of confirmation from UK Borders Agency. (i.e. EEA nationals must apply for confirmation of their “permanent residency” from the UK Borders Agency. BA prior to their leaving the U.K. to adopt a child) [40]

International Perspective: Comparison

COMPARATIVE ANALYSIS OF THE LEGAL PROVISIONS

India

In this chapter, an attempt has been made to compare the provisions of the laws prevailing in different countries. Here, for the purpose of simplification, the study of ICA has been narrowed down to comparison between European, American and Indian Laws.

In India there is paucity of legislations regarding ICA. The main laws regulating ICA derives its authority and validity from Judicial Pronouncements and CARA Guidelines. The Government of India, in pursuance of its constitutional mandate, has evolved a National Policy for the welfare of children. The thrust of this policy is summed up in the following words: “The Nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programmes should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivation needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice.” The National Policy for the Welfare of Children also stresses the vital role which the voluntary organisations have to play in the field of education, health, recreation and social welfare services for children and declares that it shall be the endeavor of the state to encourage and strengthen such voluntary organisations. [41]

There is no express provision regarding ICA and India is now a signatory to Hague Convention of 1993. India has signed the treaty in 2003

The “Revised Guidelines for the Adoption of Indian Children-1995″ were issued by the Govt. of India on 21st May’1995 and it has now been decided to further revise this Guidelines keeping in view the developments such as the ratification of the Hague Convention on Inter-country Adoption-1993 by India on 06.06.2003 etc. since then.  [42]

United States America

Intercountry Adoption Act of 2000 (P. L. P. L. 106-279; 114 Stat. 825; 42 U.S.C. 14901 et seq.).   The major goal of the Act was to provide for implementation by the United States of the Hague Convention on Protection of Children and Cooperation in Respect to Intercountry Adoption (aka The Hague Convention).  By so doing the Act accepted standards and procedures for adoptions between implementing countries that prevents abuses such abduction or sale of children, ensures proper consent for the adoption, allows for the child’s transfer to the receiving country, and established the adopted child’s status in the receiving country. [43] The law is recent so, is in consonance with the recent changes and trends and is exhaustive in nature and in toto.

United Kingdom

In UK, the provisions of ICA are governed by the children and Adoption Act, 2006. Part 2 of the Act makes provision for the Secretary of State to suspend ICA from a country if he has concerns about the practices there in connection with the adoption of children.

Section 13 of the act makes other provision for the following other matters relating to ICA:

Providing a power for the Secretary of State and the National Assembly for Wales to charge a fee to adopters or prospective adopters for services provided in relation to ICA;

Preventing an overlap of functions by local authorities where a child is brought into the country for the purposes of ICA; and

Amending section 83 of the Adoption and Children Act 2002 to make it harder for intercountry adopters to circumvent restrictions on bringing children into the UK. [44]

For futher explanations a camparative analysis has been given below.

Suggestions and Recommendations

When Romans and Hindus conceived the idea of adoption they did not contemplate it as a mode of conferring state legitimacy on illegitimate children. The sole object then was to provide a child to childless. It was a means by which the family line was prevented from extinction made to continue. [