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An overview of adoption in India, including the definition of adoption, the concept of Inter-Country Adoption, and the legal framework governing adoption in India. It discusses the Hindu Adoption and Maintenance Act, the Hague Convention, and the role of CARA in regulating adoption. The document also touches upon the recent amendments in the Juvenile Justice Act and the challenges of post-adoption negligence in transnational adoption.
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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. Adoption establishes 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. It is one of the means of solving the problems of destitute and orphans. It is also a way of satisfying the interest of person who is childless. It is prevalent in every nook and corner of the world. In India also, adoption has been prevailing since ages. Even the great epics like Ramayana and Mahabharata depicted adoption. Though the practice of adoption has been exercised from ages, the concept of Inter-country Adoption is relatively a new concept. The word ‘Adopt’ can be defined and characterized as the legal cycle of ending a youngster’s legitimate rights and obligations towards the natural and birth-guardians and subbing comparative rights and obligations towards new guardians by establishing a type of similar rights and obligations with different people as their guardians. This Particular word is adopted from the Latin word ‘adoptare’, which means “to choose”. So basically, it means to voluntarily choose and take a child from its birth and original parents legally and establishing a similar kind of relationship with the people who are adopting the child. The Majority of children who are being adopted are abandoned by their original parents or are parentless and for those children, adoption means a well proportionate mental and physical family environment which is the legal responsibility of the new guardians. Adoption is an unpredictable social marvel, personally sewed into its family law system and molded by the weights influencing the family in its social setting. It is the mirror that is mirroring the adjustments in our family life and the endeavors of family law to address those changes. All in all, it tends to be defined or termed as the legal or managerial act that builds up a lasting legitimate family connection between a minor and a grown-up who isn’t as of now the minor’s lawful parent and ends the lawful parent-kid connection between the supportive kid and any previous natural and original parent. What is Inter-Country Adoption (aka Foreign Adoption) 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. Though Inter-Country adoption has become quite regular throughout the world.Under inter-country adoption, any individual or any couple can become legal parents to any child who is a citizen of a different country. If an Indian citizen is considering overseas adoption, they should meet the eligibility criteria of that country, in addition to meeting eligibility criteria within India.
Child Adoption Laws in India Hindu’s along with Jains, Sikhs, and Buddhists are governed by the Hindu Adoption and Maintenance Act, 1956. This legislation allows couples belonging to the aforementioned religions, to adopt and raise a child legally and this legislation also states that the adopted child has the right to inherit the property of its new parents. Religions other than the aforementioned such as people belonging to Christianity and Islam along with Parsis are governed by the Guardianship and Wards Act, 1890. The reason for separate legislation is, these religions don’t have their own personal law which is concerned with the adoption of children. However, this act only considers them as “Guardians” and not “Parents”. So, according to this act, the children are prohibited to inherit the property of their guardians. This act also considers the adopted children as a separate identity when they turn Twenty-one years of age. Legislations concerning the Inter-Country Adoptions in India are very minimal. The principle laws directing and concerning Inter-Country Adoptions determine its position and legitimacy from Judicial Pronouncements and CARA Guidelines which sets out an eligibility criterion regarding the adoption of children. Hence, a National Policy for the welfare of children was put forth by the Indian Government in pursuance of its constitutional mandate. The Government of India explained the motive and aim behind this policy in the following words: “The Nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programs 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.” This National policy focuses on providing every basic necessity to the children to survive in the modern world. This lays emphasis to work in the fields of education, health as well as recreational activities. There is no express provision regarding ICA and India is now a signatory to the Hague Convention of 1993. India has signed the treaty in the year 2003. The government of India on 21st May, 1995 issued the “Revised Guidelines for the Adoption of Indian Children- 1995” and it has been decided that the said guidelines would be revised with few developments as the years goes by.
What is the Hague Convention? Hague Convention on the protection of children & cooperation in respect of inter-country adoption is an international treaty. This treaty was concluded in Hague on 29th^ May 1993 and came into force on 1st^ May 1995. The document of the treaty was drafted by the Hague Conference on private international law and till now the treaty has been ratified by 99 countries and 3 countries have signed it but not yet ratified. The countries which have ratified the conventions are supposed to follow the conditions or the standards as far as possible. Many countries which have not ratified the convention are neither permitted to participate in foreign adoptions of their children nor are allowed to adopt foreign children by their residents. Purpose of The Hague Convention The purpose of the Hague convention is to safeguard the best interests of the adopted child and to prevent illegal, irregular adoptions so that both the families and child are protected at all costs. To achieve this purpose, it has set out clear roles, responsibilities, and procedures regarding inter-country adoptions. It has also established a system of cooperation between the authorities of the child’s native country and the receiving country. It provides inter-government recognition of the adoption, which has taken place following the Hague convention. Such adoptions shall be held valid by both the countries and no adverse consequences will be faced by the adopted child and the adoptive family. India has signed and ratified the Hague convention in 2003 and it is also a member of the Hague Conference. An NRI, OCI, or a foreign prospective adoptive parent who wishes to adopt a child from India must follow the Indian guidelines. These regulations are required to check the illegal practices like trafficking, kidnapping, and sale of children and corruption.
Child Trafficking- In many cases, the child becomes the victim of human trafficking. Children are sold after being taken out of the country by providing false information about the child and forging documents. Post-Adoption Negligence In transnational adoption, post-adoption monitoring is extremely tough and hence the child may be prone to negligence by the adoptive parents. Post-Adoption Identity Problem - In cases of transnational adoption, the adoptive parents have to take the child out of the country as guardians and then complete the adoption procedure of their country too. The situation becomes very bad if the guardian does not turn out to be the adoptive parents of the child. CASES Rasiklal Chhaganlal Mehta, in 1956 The issue of validity of inter-country adoption was first discussed in the famous case of Re Rasiklal Chhaganlal Mehta, in 1956. The Court ruled that inter-country adoptions under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid under the laws of both the countries. Adoptive parents must comply with their country's adoption laws and must obtain approval for adoption from the competent authorities so that children do not suffer in immigration and obtaining citizenship in the adoptive parent's country. *Laxmi Kant Pandey v. Union of India FACTS OF THE CASE Laxmi Kant Pandey was an attorney who through a letter wrote to the Supreme Court regarding neglect and malpractice in adoption of Indian children to foreign parents. This was done by social organisations and adoption agencies.He mentioned the long and toxic journey these children made to the countries And the incidences of neglect they had to go through because of their adopted parents, sometimes also resulting in sexual exploitation of the children which was treated as a writ petition. *Groups involved in the case: Apart from the Government of India, several government agencies and social welfare organizations (both national and international) filed affidavits and statements before the court in this case. The institutions included the Indian Council of Social Welfare, Enfants Du Monde, Missionaries of Charity, Enfants De L’s Espoir, Indian Association for promotion of Adoption Kuan-yin Charitable Trust, Terre Des Homes (India) Society, Maharashtra State Women’s Council, Legal Aid Services West Bengal, SOS Children’s Villages of India and the Bhavishya International Union for Child Welfare. The Supreme Court explicitly acknowledged their contribution in its judgment stating that the valuable recommendations provided for the consideration of the Court helped the judges formulate the principles and norms to be observed in the case of inter-country adoptions.
It was brought to attention that there was no regulation of intercountry adoptions in India which might lead to trafficking of children. For the same purpose, a comprehensive framework was formulated for regulating intercountry adoption to have the children get a healthy family life. *CRAIG ALLEN COATES V STATE & ANR FACTS OF THE CASE
slowly and steadily, are approaching every possible dimension of this issue and are laying down norms for eliminating any legal or emotional havoc for the child or his biological and adoptive parents. BIBLIOGRAPHY https://egyankosh.ac.in/bitstream/123456789/20871/1/Unit-2.pdf https://www.canlii.org/en/commentary/doc/1955CanLIIDocs29#! fragment/ROOT/ BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAlAeSvwEoAaZ bUwiARUUNwE9oByfgwiEwuBJ259Bw0eJABlPKQBCfCgFEAMhoBq AQQByAYQ0NSYAEbRS2OHTpA https://bnwjournal.com/2020/11/07/recognition-of-foreign-adoptions/ https://www.familylawweek.co.uk/site.aspx?i=ed http://www.legalservicesindia.com/articles/adopt.htm https://www.lawctopus.com/academike/inter-country-adoption/ https://www.lawcolumn.in/inter-country-adoption/ https://advocatespedia.com/CRAIG_ALLEN_COATES_V_STATE_ %26_ANR
