INTER-COUNTRY ADOPTION IN INDIA
1. The Geneva Declaration of the Right of the Child, 1924
2. Declaration of the Right of the Child, UN GA resolution, 1959.
3. Draft Guidelines of Procedure concerning Inter-Country Adoptions formulated by
Expert Group and adopted by ECOSOC, 20th Session.
4. UN Declaration on Social and Legal Principles relating to the Protection and Welfare
of Children with special reference to foster placement and adoption nationally and
internationally; UN GA resolution: A/RES/41/85 of 3 December 1986.
a. Article 18: Governments should establish policy, legislation and effective
supervision for the protection of children involved in intercountry adoption.
Intercountry adoption should, wherever possible, only be undertaken when
such measures have been established in the States concerned.
b. General Assembly Resolutions are not legally binding.
c. This was passed without vote.
5. UNCRC
a. Article 20
(a) A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to remain in
that environment, shall be entitled to special protection and assistance
provided by the State.
(b) States Parties shall in accordance with their national laws ensure
alternative care for such a child.
(c) Such care could include, inter alia, foster placement, kafalah of Islamic
law, adoption or if necessary placement in suitable institutions for the care of
children. When considering solutions, due regard shall be paid to the
desirability of continuity in a child's upbringing and to the child's ethnic,
religious, cultural and linguistic background.
b. Article 21
States Parties that recognize and/or permit the system of adoption shall ensure
that the best interests of the child shall be the paramount consideration and
they shall:
(a) Ensure that the adoption of a child is authorized only by competent
authorities who determine, in accordance with applicable law and procedures
and on the basis of all pertinent and reliable information, that the adoption is
permissible in view of the child's status concerning parents, relatives and legal
guardians and that, if required, the persons concerned have given their
informed consent to the adoption on the basis of such counselling as may be
necessary;
(b) 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;
(c) Ensure that the child concerned by inter-country adoption enjoys
safeguards and standards equivalent to those existing in the case of national
adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the
placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by
concluding bilateral or multilateral arrangements or agreements, and
endeavour, within this framework, to ensure that the placement of the child in
another country is carried out by competent authorities or organs.
6. Hague Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption
a. Entered into force in 1995
b. India Ratified it in 2003.
c. Central Authority (Art.6)
i. Central Adoption Recourse Agency (CARA)
ii. Setup as a Wing of the Ministry of Welfare on 28.06.1990
iii. Made an autonomous body on 18.03.1999
d. Child is declared adoptable (legally Free for Adoption) by the concerned
public authority, such as, Child Welfare Committee, etc. (as required under art.
4(a).)
e. Priority is given to in-country adoption before a child is proposed for inter
country adoption through the VCAs & State Governments concerned (as
required under art. 4.(b) & 16(b))
f. All authorities/agencies including CARA apply the principle of Best Interest
of the Child to an adoption case (as required under art. 4(b) & 16(d))
g. Necessary consents of biological parents, adoptive parents and the older
Childs are obtained before an adoption is effected. (As required under art. 4(b)
& 16(d))
h. Adoption is permitted only through recognized placement Agencies with
professionally trained Social Workers. (as required under art. 11)
i. Adoptive parents are required to escort a child from India for the secured
transfer of the child as required under 19.2
j. Any improper financial or other gain is prevented (as required under art. 8 &
32) through:
i. Fixing adoption costs.
ii. Prohibition of direct contact between Prospective Foreign adoptive
parents and Indian Agencies.
iii. Prohibition of middlemen.
iv. Giving recognition to those Indian Agencies for working under the
Convention who work with non-profit motive.
v. Financial Returns furnished by the inter-country adoption Agencies to
charity commissioners, local state government & Ministries.
7. National Policy for Children, 1974
a. Does not specifically mention adoption.
b. Provides a mandate to enact laws regarding welfare of children.
8. Central Adoption Resource Agency (CARA) guidelines for adoption
a. The 2015 guidelines replaced the 2011 guidelines.
b. Chapter IV of the Guidelines refers to adoption procedure for non-resident
Indian, overseas citizen of India and foreign prospective adoptive parents
9. Guardians and Wards Act 1890
a. Applies uniformly across religions.
b. Purpose is to provide for regulation of guardianship where the religion does
not provide for adoption.
c. Section 7 does not prohibit appointment of a foreigner as a guardian for an
Indian Child.
10. Hindu Adoption and Maintenance Act, 1956
11. Juvenile Justice (Care and Protection of Children) Act 2000
a. This Act has incorporated the provision of adoption of child as an alternative
to institutional care.
12. The Indian Council of Social Welfare
a. To safeguard from malpractices and deviations from prescribed guidelines for
adoption notified by Government of India, Supreme Court of India (CASE: )
has appointed this independent NGO with experience in child adoption with
head quarters in Mumbai and branches in all state as Scrutiny Agency.
b. This agency verifies all the relevant documents and authenticity before orders
are issued by Judicial Courts for the formal adoption.
13. Adoption by Single Parents
a. Many NGOs recognized by CARA are seeking de-recognition because the
new guidelines allow for adoption by a single parent which is against their
religious beliefs.
b. Missionaries of Charity has done this.
14. Legislative efforts
a. Adoption of Children Bill, 1980
i. Placed before Lok Sabha. Lapsed.
ii. Clause 23 and 24
15. Judgments
a. Marggarate Maria v. Dr. Chacko AIR 1970 Ker 1
b. In re R.C. Mehta AIR 1982 Guj 193.
i. District Judge granted permission under S. 9(4) of HAMA for giving a
minor female child for adoption to a West German Couple. However,
order did not mention that they could take the child outside India.
Adopted parents applied for issue of passport for the child but this was
refused.
c. Case Name?
i. Concerns adoption of children by foreigners.
ii. Article 15, 34 and 39 of the Constitution
iii. Section 7,8,9 of Guardians and Wards Act.
iv. When a foreigner wishes to adopt a child he/she must make an
application before the District Court for appointment as guardian of
that child, after such appointment may take the child to his/her country
with the permission of the Court.
d. L. K. Pandey vs. Union of India (1984) 2 SCR 795
i. The case was instituted on the basis of a letter addressed to the court by
a lawyer, Laxmikant Pandey alleging that social organisations and
voluntary agencies engaging in the work of offering Indian children to
foreign parents are indulged in malpractices. It was alleged that these
adopted children were not only exposed to long horrendous journey to
distant foreign countries at the risk of their life but they also ultimately
are forced into prostitution and beggary.
ii. Relief sought: Restrain Indian based private agencies from carrying out
further activity of routing children for adoption abroad and directing
the Government of India, the Indian Council of Child Welfare and the
Indian Councilof Social Welfare to carry out their obligations in the
matter of adoption of Indian Children by Foreign parents.
iii. Court laid down guidelines for the same.
e. Lakshmikant Pnadey v. UoI, 1985 SCR Supl. (3) 71
i. Case filed by Social/Child Welfare Agencies engaged in placement of
children in inter-country adoption after having felt that there were
certain difficulties in implementing the principles and norms adopted
and the procedure laid down by Supreme Court in its judgment in
Laxmi Kant Pandey v.Union of India
ii. Sought clarification on:
(i)
whether a scrutinizing agency must
be distinct
from a
placement agency;
(ii)
what steps must be taken where there is disruption in the family
of the petitioner either before or after the adoption;
(iii) what is the role which a scrutinising agency is expected to play
in the procedure relating to inter-country adoptions;
(iv) whether it is desirable to permit a child to be taken from one State
to another for the purpose of being given in adoption and,, if so, what
guidelines should be followed;
(v) Clarification in regard to the reports to be made by the social or
child welfare agency sponsoring the application after the foreigner is
appointed guardian of the child and
he takes the child to his own country;
(vi) what is the role which the representatives of foreign agencies
should be allowed to play in inter-country adoption;
(vii) whether the requirement that the certificates, declarations and
documents required to be submitted along with the application of
`the foreigner for taking a child in adoption should be duly notarised
by a Notary Public and the signature of the Notary Public should
be duly attested either by an officer of the Ministry of External
Affairs or Justice or social welfare of the country of the foreigner or by
an officer of the Indian Embassy or High Commissioner or Consulate
in that country, must be insisted upon;
(viii) whether the court, while making an order for appointment of a
foreigner as guardian should not insist on deposit being made by way
of security for enabling the child to be repatriated
to India, should it
become necessary for any reason and instead a bond to be executed
by the foreigner should be sufficient;
(ix) Direction regarding extension of time of 2 years to complete the
adoption process in bona fide cases;
(x) whether the sum of Rs. 60 per day fixed as the maximum for
reimbursement of maintenance expenses which may be incurred by a
social or child welfare agency on the
child was to High and that it should be reduced to Rs. 500 per month;
(xi) whether suitable directions be given to district courts
to
expedite proceeding for appointment of a prospective adoptive parent
as guardian of the child.
(xii) whether the courts must require the foreign parents wishing to
take a child in adoption to come down to India for the purpose of
meeting the child before approving the child for adoption and
(xiii) what efforts be made to give a child in adoption to Indian parents
before considering the possibility of placing it in adoption with foreign
parents.
f. Ashraya And Ors. vs Jan-Erik Lundqvist And Ors, II (1990) DMC 524
g. Cappellotto Livio vs Indian Council Of Social Welfare, I (1994) DMC 564
h. Zaveed Pharukhi And Ors. vs Unknown, 2005 (4) BomCR 244
i. Stephanie Joan Becker vs. State and Anr. 2013. CIVIL APPEAL No.
of 2013 (Arising out of SLP (Civil) No. 29505 of 2012)
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