Inter-Country Adoptions to Be or Not to Be & Its Implications in India

Introduction

Parenting is an essential aspect of our evolutionary heritage. Maternal nurturing of the young mammal is instinctual and ensures that the young survive and thrive. Compared to most other species, humans have a long infancy. The prolonged infancy gives both the time and scope for bonding between parents and the child. The enduring mutual relationship of love and affection which develop go beyond any biological purpose and constitute the very stuff of poetry.

Adoption for common man means establishing a parent-child relationship between persons not so related by the birth of the child. 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. [1] Adoption 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.

In India, adoption law for Hindus is codified in Hindu Adoptions and Maintenance Act in 1956 & personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in ‘guardianship’ under the provisions of the Guardian and Wards Act, 1890.

From the age of mythology, there are abundant examples to see that not only in India but in other civilizations also there was concept of substituted parenting eg. in Greek Mythology Hercules was born to Lord of Gods Zeus but was brought up by a farmer couple & in India too Sita, Shakuntala, Krishna & Karna were born to one but brought up by another.

With the forward times this institution of adoption is showcasing itself on global plethora. For couples (or individuals) whose country of residence has few healthy babies available for adoption, going outside the country for a child is a desirable option. It is also desirable from the perspective of the child, who usually comes from a country with more available children than potential adoptive parents. But to our dismay this inter-country adoption is posing a menace of child-trafficking, child exploitation & child laundering. These types of inter-country adoption involve transracial, transcultural and transnational aspects and therefore care has to be taken that the process of solving the problems of such children may not land them in more difficulties arising on the wake of maladjustment in the new atmosphere.

INTER-COUNTRY ADOPTION : INDIAN PERSPECTIVE

Inter-country adoption is an increasingly common form of family formation. In most Western nations, the number of healthy infants available for adoption has been steadily decreasing, due to a number of social and economic factors including widespread use of birth control, an increased number of abortions, and more options available to unwed mothers who want to keep their children. Because of this, inter-country adoption is on an upward trend.

At present, non-Hindus and foreigners can only be guardians of children under the Guardian and Wards Act 1890. In actual practice, foreign nationals and person of Indian origin domiciled overseas wishing to adopt children from India first obtain guardianship orders from the District Court or the High Court, as the case may be, within whose territorial jurisdiction the child is residing. This is with a view to adopt formally under the legal system of the country of their habitual residence.

Over the last 10 years, the numbers of children who are adopted by families who live outside of the child’s birth country has more than tripled. Our increasingly globalize world is blurring the edges of racial, ethnic or national identity. No where is this phenomenon more actualized than in the act of building a family through inter-country adoption.

Subject to the onward march in the progressive society, the ambiguities within the domestic law, the issue of bar on adoptions and on the applications of domestic law with respect to international law, a need for a few inclusions in domestic law for universal uniformity of adoption laws substantially emerged. Eventually, formal attempts to reform were constantly contested and undermined.

Nevertheless, it must be recognized that some children adopted from foreign countries arrive in their new families with special needs. In some cases the child’s special needs are known or diagnosed prior to adoption, in some cases not. Some inter-country adopted children may be immediately diagnosed with treatable medical conditions, while some children may later develop conditions which entail a longer term commitment to treatments or therapies. However, it is important that prospective adoptive parents recognize that there are risks associated with inter-country adoption and be prepared to deal with them.

Inter-country Adoption is questionable than what used to be the case. As a result of this, there have been many moves to wipe off inter-country adoption that often seem to have a polarizing effect between agencies and adoptive families. In addition, legislators, NGOs, and other interest groups have been prone to jump on the bandwagon of increased regulation in attempts to repair the causes that have led to the unfortunate minority of adoption cases mired by poor practices and controversy.

It may be noted that there is no concrete legislation present in India, which deals with inter-Country adoption. In fact before the Laxmikant Pandey’s case therefore, the inadequacy of the law of adoption to address the issue of inter country adoption was highlighted by the Gujarat High Court in Re Rasiklal Chagan Lal Mehta. [2] It is common knowledge that such adoptions are on the increase. While it is a welcome trend that poor and needy children get an opportunity to get affluent family and homes, it cannot be denied that such adoptions have opened opportunities for unscrupulous agencies to commercialize the practice, and abuse and exploitation of children is not unknown. In Rasiklal case, a German Couple wished to adopt a girl from an orphanage at Rajkot, and take her to Germany with them. In the absence of any statutory provision under which a foreigner could adopt an Indian child, the applicants tried to explore the provision under the section 9(4) of the Hindu Adoptions and Maintenance Act 1956. [3] In order to overcome the hurdle, which requires that the adopter under the Act has to be a Hindu, they even adopted Hinduism. They had to shuttle between the passport office and the courts and ultimately had to file another application under the Guardians and Wards Act 1890. After detailed consideration of all aspects of such adoption, the Division Bench of the High Court came out with various guidelines, eg, in any case involving inter-country

adoption, a notice should be compulsorily issued to the concerned welfare agency; there should be a provision in the adoption order providing for periodical report pertaining to the maintenance and well being of the child in the hands of the adoptive parents, the courts must ensure that the adoption is legally valid under the laws of both the countries and that the child should be able to immigrate to that country and also obtain the nationality of the parents. [4]

The Indian Ministry of Welfare, pursuant to certain guidelines issued by the Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v Union of India [5] , framed guidelines governing inter-country adoptions. This case was monitored by the Supreme Court from time to time until 1991, when the court scrupulously reviewed the existing procedure and practices followed in inter-country adoptions. The main objective was to prevent trafficking of children and to protect the welfare of adopted children.

In the further supplemental judgment of Laxmi Kant Pandey v Union of India [6] the apex court pointed out that ordinarily 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 appropriate cases, the court may exceptionally pass an order requiring him or her to make such deposit. The court has also observed that it is at that point of time that the execution of a bond would ordinarily be sufficient.

The apex court in the second supplemental judgment of Laxmi Kant Pandey v Union of India [7] , once again, among other issues, clarified this aspect of the matter. The apex court held that the guardian judge need not insist on security or a cash deposit or bank guarantee, and it should be enough if a bond is taken from the recognised Indian placement agency which is processing the application. This agency may in turn take a corresponding bond from the sponsoring social or child welfare agency in the foreign country.

More importantly, Justice Bhagwati (in AIR 1987 SC 232 at p 240, para 12) incorporated a vital note of clarification, as follows:

“… 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.”

After the implementation of the initial guidelines in 1989, it was felt necessary to revise them. Accordingly, a taskforce comprising a cross-section of representatives of adoption agencies under the chairmanship of former Chief Justice of India Justice PN Bhagwati, was constituted on 12 August 1992. The taskforce submitted its report on 28 August 1993, and the Indian Government accepted its recommendations. Accordingly, the Government of India circulated revised guidelines in 1994 (hereinafter ‘the Guidelines’) to regulate matters relating to the adoption of Indian children. These guidelines were published by the Government in the Gazette of India on 20 June 1995. Subsequently, new further revised guidelines have come into place from 14 February 2006. It submitted a draft of amended comprehensive guidelines to the newly created Ministry for Women and Child Development. These are called the Draft Guidelines on Adoption of Indian Children without Parental Care. These 2007 Guidelines have not been approved by the concerned Ministry as yet.

It may however be pertinent to point out that the apex court in Anokha v State of Rajasthan [8] has held that the above guidelines would not be applicable where the child is living with his or her biological parent(s) who have agreed that he or she is to be given in adoption to a known couple who may be of foreign origin. The court in such cases has to deal with the application under section 7 of the Guardian and Wards Act 1890 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.

Much more recently the Supreme Court of India has again reiterated the guidelines in case of adoption of children by foreign parents, as originally laid down in the case of Laxmi Kant Pandey v Union of India, [9] . While emphatically following these guidelines in St. Theresa’s Tender Loving Care Home and others v. States of Andhra Pradesh [10] , the apex Court pointed in Para 10 at page 128 of the judgment: “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….”

Therefore, the inter-country adoptions are handled with strict supervision by the Indian Courts through series of precedents as there’s no effective legislation for these adoptions.

INTERNATIONAL STANDARDS

In 1989, the United Nations drafted the Convention on the Rights of Child, in which it laid out several principles according to which children have a right to be treated.

Article 9 states that “the child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be subject of traffic in any form”. Article 21 states that, in regard to adoption, “the best interests of the child shall be the paramount consideration.” Included in Article 21 is the recognition of inter-country adoption as an appropriate means, under certain circumstances, of reaching this goal. It says that states shall “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.” [11]

Second comes The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (or Hague Adoption Convention) [12] is an international convention dealing with international adoption, child laundering, and child trafficking. It was concluded on 29 May 1993 and entered into force on 1 May 1995. The main objectives of the Convention are:

to establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

INTER-COUNTRY ADOPTIONS & CONFLICT OF LAWS

Both countries of origin and receiving countries of children have to take special legal action in an attempt to exert supervision over-inter-country adoption, on the other hand in order to improve the chances of success of such adoption and on the other to combat abuses. Such mandatory provision generally is intended to over-ride the conflicting rules of Private International Law. The increase in the numbers of children being adopted by families from other countries has also been the cause of an enormous increase in Public Policy Controversy, leading to The Hague Convention and Treaty on International Adoption, and numerous countries changing their internal laws and policies, to regulate inter-country adoption practices. There have been many instances when adoption laws/rules of two country clash resulting in psychological harassment of the adopting parents & the adopted child. For instance the adoptive parents duly comply with the requirements of the HAMA 1956 for taking the child in adoption. The adoption deed is proudly presented to the immigration authorities; and this is where the trouble begins. The UK immigration authorities completely disregard the Indian adoption deed, and they are legally justified in doing so under the Adoption (Designation of Overseas Adoptions) Order 1973, SI 1973/19. Under the 1973 Order, if a child has been legally adopted from a country whose adoption orders are recognised as valid under UK law, ie from a ‘designated’ country, then the parents may apply for the child to join them in the United Kingdom as their adopted child. If the child has not been legally adopted from a ‘designated’ country or the adoption is from a country whose adoption orders are not recognised as valid in UK law, i.e. the child is from a ‘non-designated’ country, entry clearance will have to be obtained for the child to travel to the United Kingdom for adoption through the English courts. India is specified as a ‘non-designated’ country under the 1973 Order. The adoptive parents, then, are confronted with a refusal by the immigration authorities on the ground that the adoption deed is not valid under the 1973 Order, although there has been due compliance with the provisions of the Hindu Adoption & Maintenance Act, 1956. The only avenues available to the parents are to challenge the refusal by way of appeal or to lodge a fresh application. The real dilemma in such a situation is to set back the clock to satisfy the requirements of British immigration law. How can a non-resident Indian adoptive couple obtain a guardianship order from a local court once a formal irrevocable adoption process has taken place?

But one of the landmark judgment of Royal Court of Appeal upholding the adoption deed of UK couple under Hindu Adoption & Maintenance Act, 1956 but the validity of such an adoption is on the basis of right to family life i.e. Singh v ECO Delhi [13] in which the main principle arising for consideration was whether an adoption which does not meet the requirements of relevant international instruments should invariably be a reason for according little weight to it in determining whether family life exists or not. The adoption of the boy in the case of Singh was valid in India but not recognised in the United Kingdom. the Court held that the bias against Indian adoption custom was wrong and that it was a breach of the right to family life and discriminatory to refuse an adopted child entry clearance to the United Kingdom by giving less weight to an adoption effected by customary law in India and which was recognised as valid there, on the ground that it was not a recognised practice in English law. The Court concluded that such a rigid and formulaic approach is not justified and that the failure to satisfy the requirement of relevant international instruments will vary from case to case The principles enunciated in Singh which are relevant in determining whether family life exists between an adopted child and adoptive parents are equally applicable in a situation which needs to resolve whether there is family life existing between a child and his natural parents who are separated from each other. [14]

Likewise, the American Embassy and numerous European embassies at New Delhi also outright refuse to accept the above-mentioned adoption deeds under the provisions of HAMA 1956. Hence, only guardianship orders are acceptable. These can be obtained only by lodging guardianship petitions under the provisions of the Hindu Minority and Guardianship Act, 1956 in the court of the guardian judge, in whose jurisdiction the minor child is residing. It is like a full blown trial. It is very difficult to obtain guardianship orders. These petitions have to be supported by exhaustive documentation as to the background and standing of the proposed overseas adoptive parents. Sometimes, it can be a time consuming exercise, and it is very difficult in such a situation for the foreign couple to spend long periods of time in India awaiting custody orders. With these custody orders, the adoption ultimately takes place in the foreign country of habitual residence of the adoptive parents. In India, as we have no exclusive law of adoption for foreigners or non-resident Indians hence these hurdles.

INDIA AS PLAYER

The Government of India has also ratified the Hague convention on Inter-Country Adoption on 6 June 2003. There is an attempt to evolve a uniform civil code; the government of India introduced an Adoption of Children’s Bill, 1972 and 1980. Keeping in mind the large-scale child trafficking in the world, The Rights of the Child, 1989 Convention requires that Inter-Country adoption will receive only the last priority while searching for a foster home.

According to the Adoption of Children Bill, 1995, an adoption will be valid only if:

The person adopting is competent to adopt

The person giving in adoption is competent to do so;

The person adopted is capable of being taken in adoption;

Consent where necessary is obtained.

The adoption is made in accordance with the other provisions of this bill and rules framed therein.

Clauses 23 and 24 of the said bill were most relevant in this respect.

Clause 23 read as follows:

Except under the authority of an order under section 24, it shall not be lawful for any person to take or send out of India a child who’s a citizen of India to any place outside India with a view to the adoption of the child by any person.

(2) Any person who takes or sends a child out of India to any place outside India in contravention of sub-section (1) or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that purpose, shall be punishable with imprisonment for a term which may extend to six months, or with fine or with both.

Clause 24 of the above mentioned bill states that: if upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that purpose desires to remove the child from India, either immediately or after an interval, the court may make an order (in this section referred to as a provisional adoption order) authorising the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody pending his adoption aforesaid

Provided that no application shall be entertained unless it is it is accompanied by a certificate by the central government to the effect that:

the applicant is in its opinion a fit person to adopt the child.

the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant.

the applicant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this act to enable the child to be repatriated to India, should it become necessary for any reason.

PROCEDURE FOR INTER-COUNTRY ADOPTIONS IN INDIA

The Central Adoption Resource Authority (CARA) is an Autonomous Body under the Ministry of Women and Child Development, Government of India. Its objective is to help both Indian and foreign agencies, involved in inter country adoption of Indian children, to function within a prescribed framework so that such children are adopted legally through recognized agencies and to ensure that no exploitation takes place. 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). There are about 254 foreign agencies enlisted by CARA in various countries across the world. They are authorized to sponsor cases of prospective adoptive parents to the recognized placement agencies in India. Following are the guidelines formulated for inter-country adoption known as CARA Guidelines 2006:

Step 1: Enlisted Foreign Adoption Agency (EFAA):

The applicants will have to contact or register with an Enlisted Foreign Adoption Agency (EFAA)/Central Authority/Government Department in their country, in which they are resident, which will prepare the Home Study Report (HSR). HSR includes details like social & economic status of family, description of home, current relationship between husband & wife, employment status of adoptive parents etc. The validity of “Home Study Report” will be for a period of two years. HSR report prepared before two years will be updated at referral.

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 enlisted agency with requisite documents including documentary proof that the applicant is permitted to adopt from India.

The adoption application dossier should contain all documents prescribed in Annexure-2. 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.

A copy of the application of the prospective adoptive parents along with the copies of the HSR and other documents will have to be forwarded to RIPA by the Enlisted Foreign Adoption Agency (EFAA) or Central Authority of that country.

Where there is no Enlisted Foreign Adoption Agency (EFAA): In the case of an Indian National residing in a country where there is no Enlisted Agency, CARA may allow an organization or individual recommended by the Indian Embassy to do the Home Study Report (HSR), undertaking as prescribed in the Guidelines and other documentation. The said application may be forwarded with the approval of the Indian Embassy to CARA.

Wherever there is no Foreign Adoption Agency enlisted by CARA in any country, the concerned Government Department Ministry or any authorized body of that country may forward the original application and related documents of the prospective adoptive parents to CARA through the Indian Embassy/High Commission.  In case of resident non-citizens where the host Govt. may not be willing to sponsor the cases, the documentation may be done through the Embassy of the country to which the applicant belongs. Home studies however will have to be prepared by a qualified Agency/Social Worker in all cases. In case CARA receives the papers it will send those papers   to any of the Recognized Indian Placement Agencies (RIPA) for further processing the case only after HSR has been approved by it. The procedure to be adopted thereafter shall be the same as indicated in the process.

Step 2: Role of Recognised Indian Placement Agency (RIPA):

On receipt of the documents, the Indian Agency will make efforts to match a child who is legally free for inter-country adoption with the applicant.

In case no suitable match is possible within 3 months, the RIPA will inform the EFAA and CARA with the reasons therefore.

Step 3:   Child being declared free for inter-country adoption – Clearance by ACA

Before a RIPA proposes to place a child in the Inter country adoption, it must apply to the ACA for assistance for Indian placement.

The child should be legally free for adoption.  ACA will find a suitable Indian prospective adoptive parent within 30 days, failing which it will issue clearance certificate for inter-country adoption.

ACA will issue clearance for inter-country adoption within 10 days in case of older children above 6 years, siblings or twins and Special Needs Children as per the additional guidelines issued in this regard.

In case the ACA cannot find suitable Indian parent/parents within 30 days, it will be incumbent upon the ACA to issue a Clearance Certificate on the 31st day.

If ACA Clearance is not given on 31st day, the clearance of ACA will be assumed unless ACA has sought clarification within the stipulation period of 30 days.

NRI parent(s) (at least one parent) holding Indian Passport will be exempted from ACA Clearance, but they have to follow all other procedures as per the Guidelines.

Step 4:    Matching of the Child Study Report with Home Study Report of FPAP by RIPA: After a successful matching, the RIPA will forward the complete dossier as per Annexure 3 to CARA for issuance of “No Objection Certificate”.

Step 5:     Issue of No Objection Certificate (NOC) by CARA:

RIPA shall make application for CARA NOC in case of foreign/PIO parents only after ACA Clearance Certificate is obtained.

CARA will issue the ‘NOC’ within 15 days from the date of receipt of the adoption dossier if complete in all respect.

If any query or clarification is sought by CARA, it will be replied to by the RIPA within 10 days.

No Indian Placement Agency can file an application in the competent court for inter-country adoption without a “No Objection Certificate” from CARA.

Step 6:    Filing of Petition in the Court:

On receipt of the NOC from CARA, the RIPA shall file a petition for adoption/guardianship in the competent court within 15 days.

The competent court may issue an appropriate order for the placement of the child with FPAP.

As per the Hon’ble Supreme Court directions, the concerned Court may dispose the case within 2 months.

Step 7:  Passport and Visa:

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.

Step 8: Child travels to adoptive country: The adoptive parent/parents will have to come to India and accompany the child back to their country.