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Written by - Nandini Srivastava
This article discusses the meaning of adoption, the practice of inter-country adoption. It further analyses the challenges of inter country adoption such as the circumvention of child adoption going on inter boundary and examines the loopholes of the laws. The children are known as the most vulnerable functions of the society whose mental and physical growth can be hampered due to the ill effects of inter-country adoption.
Introduction
Adoption is associated with the process when an adopted child gets the lawful parents/ guardians to all the privileges, responsibilities that were related to the biological child. For adoption in India, there have to be certain principles of paramount importance that have to be kept in consideration and they are-
I. Keeping in mind the child’s interest while the adoption process is undergoing.
II. The adoptions have to be registered under the Child Adoption Resource Information and Guidance System with respecting the confidentiality of the same.
III. The preference shall be kept of paramount importance concerning for socio-cultural importance of the child’s background and nationality.
Legal Framework of Adoption
i. CARA[1] - The Adoption Resource Authority known as CARA issues various guidelines that keep a check and ensure smooth functioning of the adoption process from time to time.
ii. SARA- It is the State Adoption Agency that acts as a branch in the state which commands the adoption and post institutional care with the trunk of Central Adoption Resource Authority.
iii. SAA- In addition to these, there is a Specialised Adoption Agency which has is recognition from the state government under section 41 while keeping the children up for adoption.
iv. AFAA- Authorised Foreign Adoption Agency has its command over the foreign social child welfare agency which keeps its audit with the Central Adoption Resource Authority in matters with the adoption of the Indian child by the parents/citizens of the concerned country.
v. DCPU[2] - The District Child Protection Unit is set up under the Integrated Child Protection Scheme introduces in the year 2009 by the government of India for bringing all the child protection programs intramural.
Concept of Inter country Adoption
Inter country adoption involves the transfer of children from one nation to the other with the purpose of guardianship and parenting. It is uncommon to the relative adoption in India which means that the child’s stepparent adopts him or her, or the biological member of the family adopts the child. The relative adoption makes sure the elimination of the enmity towards the child by fastening the relationship of the child with the family.
International adoption has emerged from the last century when the number of adoption had seen a rise with the change in political attitude of countries. The number of adoption had increased due to the second world war which saw massive destruction and predictable death of the parents. The United Nations Convention on Child Rights in the year 1989 had provided under article 20 that if a child is deprived whether temporarily or permanently, of the family, he/she shall be provided special privilege by the State. The state parties shall ensure better care of the child includes foster care, adoption, or placing certain children in a better environment to suit their mental health. While giving the child such care, some things of paramount importance were kept in mind such as keeping mind the child’s upbringing and ethnic and cultural environment.
As understood by Article 21, states that the adoption of the child should be authorized by the competent authorities and such that they identify the adoption laws and where the adoption is permissible with the requisite and reliable information of the parties and based information and counselling, if necessary (relies on the information provided by the parties), of the parties, the adoption to be given second preference and foster to be kept in the priority of the State.
India and Inter country Adoption
The inter-country adoption has been a newer concept and there has not been legislation that governs the concept solely. In the case of Laxmikant Pandey vs Union of India[3], the supreme court has laid down few principles which govern the trans country adoption. Laxmikant Pandey was a known lawyer who had sent a letter to the court alleging that the organizations involved in offering Indian children to the other country for the reason of adoption were engaged in malpractices of child trafficking and was further alleged that the children were exposed to the long horrible journey for meeting their distant parents and also some of them end up becoming prostitutes and beggars[4]. The supreme court further channelized its ruling and stated that-
i. The sole objective of giving a child for adoption is to seek the welfare of the child while supporting the inter-country adoption
ii. There has to be excessive care to be taken while giving up the child in adoption to distant parents of other countries or else, the child will be exposed to sexual or moral, or mental abuse.
iii. All the applications for foreign adoption must be sponsored by social or child welfare agency which is acknowledged by the government of the country of which the foreigner is a resident.
iv. No adoption to be undertaken by the application which is sponsored by the social agency which takes care of the juvenile court.
v. The age limit of the child for inter-country adoption must be 3 years and not beyond that.
Following the judgment of Laxmikant, The Bombay high court in the case of Re Jay Kevin Salerno exerted the opinion that if the child is kept under an institution, he/she is subjected to be under the care of a nursing home and the institution does not have the custody of the child. There has not been any specific legislation that talks about international adoption solely but India follows \certain guidelines by the other nations as well as customary law of India.
Challenges due to Inter country Adoption
1. Child Trafficking
The critics have been constantly on the opinion that the inter country adoption has been an unhealthy dynamics where the wealthier countries extract from the poor countries. The allegations have arisen that the children that were being sent for adoption are not orphans only but they were purposefully made worthy of adoption to fulfill the financial needs of the parents or sometimes trafficking, kidnapping, or unwanted forced labour. This condition has been observed in a report of Guatemala and the US where children are reportedly trafficked from hospitals, streets or relatives who are not parents but adopted.
It is also worth noting that despite the states who encounter child trafficking there are places where inter country adoption proceeds without any scandal. These places are China, South Korea, and Russia. These states have laws and regulations which keep children at par from being trafficked.
Conclusion
India Ratified The Hague Convention on inter-country adoption of children and the Convention on the Rights of a child for inter-country adoption. The principle and existing law in India under the Hindu System is provided by the Hindu Adoption and Maintenance Act,1956. The validity of inter-country adoptions was discussed in the case of In Re Rasikal Chhaganlal Mehta[5], where it was held by the court that under section 9(4) of the Hindu Adoption and Maintenance Act the intercountry adoptions must be legally valid as per the laws of both the countries. The parents who are adopting should have necessarily fulfilled the requirements made by the laws of the country they live in and have permission to adopt from that authority and it should be made sure that the child does not suffer in immigration and in obtaining the nationality of the country where the adoptive parents belong to.
There was public interest litigation filed in the case of Laxmi Kant Pandey V. Union Of India[6], where the apex courts framed some guidelines for inter-country adoptions for the benefit of the Government of India. Central Adoption Resource Agency was recommended and had set up for the government of India.
It was held in the case of Mr. Craig Allen Coates V. State[7] Through Indian Council For Child Welfare And Welfare Home For Children, that if the parents who want to adopt, fail to provide the motive for adopting a child from another country and the adoption process would be declared to be mala fide and it would be barred.
In a judgment by the Bombay High Court in the case of Varsha Sanjay Shinde & Anr V. Society Of Friends Of The Sassoon Hospital And Others, it was held once the child is approved after the due procedure by the overseas couple, then that child cannot be shown to any other Indian parents and that Indian parents won’t be given priority just because they are Indian and preference should be given to them.
It is a big misconception and is just an illustrious facade by saying that in international adoption, we have in mind distressing images of couples who are saving a parentless and hungry child who lives happily ever after. International adoption is considered a corrupted business as it has been seen that it has been a big reason for the increasing number of cases of child trafficking. Even though as per records there were 22,991 children adopted by the Americans in the year 2004 but the implementation of the convention the number had dropped to 9319 in 2011.
Child laundering is the term which states that the current inter-country adoption system follows malpractices and children are taken from their birth parents illegally and then they are used by the official process of adoption and the legal system to launder those children as the legally adopted ones. This adoption system treats children in such a way that helps the criminal organizations which are engaged in money laundering in which process they earn funds illegally but after that, they launder that money through a legitimate business. Because of both the deliberate manipulation and the faulty bookkeeping, there is no solid source on how much the amount of corruption takes place. Hence, it is difficult to solidly decide if activities decrease corruption, as the solitary accessible measurement is the number of kids embraced abroad.
[1] Central Adoption Resource Authority, India, available at http://cara.nic.in, (last visited on July 24, 2021) [2] District Child Protection Unit, India, available at https://cdn.s3waas.gov.in/s338b3eff8baf56627478ec76a704e9b52/uploads/2018/02/2018022780.pdf (last visited on July 20, 2021) [3] 1984 AIR 469. [4] Dr. Achina Kundu & Ms. Ayushi Kundu, “ An Overview of Intercountry Adoption with Special Focus on India”, Bharati Law Review (2013) [5] AIR 1982 GUJ 193 [6] Supra at 3 [7] 2010 (11) SCR 102
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