Picture Courtesy: http://somatyler.org/wp-content/uploads/2016/09/adoption-1.jpg

This article was written by Vidhatri Bharti, a student of Army Institute of Law.

“Adoption is not about finding children for families, it’s about finding families for children.”
– Joyce Maguire Pavao[1]

1. Introduction

Children are a supremely important national asset, however, this statement holds good only when a child is provided with the right environment for growth. Thus, for the welfare of an orphaned child or a destitute  it is of utmost importance to provide them with considerate and compassionate adoptive parents within the country, and in situations of non-availability of prospective parents in-country providing a child with foreign adoptive parents.

The Indian constitution also gives paramount importance to welfare of child.[2]Adoptions bring a balance in the equation of the orphaned children in need of parental care and prospective parents desirous of adopting a child.

A widely accepted definition of adoption is that it is the admission of a stranger by birth to the privilege of a child by a legally recognized form of affiliation. Inter country adoptions on the other hand can be defined as adoption of a child by an overseas citizen of India or a foreign national.[3]Inter-country adoptions are the most sensitive aspect of adoptions in general. Despite having critics these adoptions have been widely accepted by international organisations.

The history of adoption dates back to the ancient era although in a form not known today, earlier adoption was deemed to be a spiritual benefit so as to fulfil last rites of the father, while adoption as known today has its entire focus on child welfare.

The following sections of the article will discuss inter-country adoptions with reference to the recent guidelines issued by the Central Adoption Resource Authority in 2015.

2.Present Legal Position

In India the basic legislation governing adoptions is the Hindu Adoptions And Maintenance Act of 1956, however, this legislation does not contain provisions with regard to inter-country adoptions. For this purpose, thus, the provisions of the Guardians And Wards Act, 1860 had been utilised before the coming of The Juvenile Justice (Care And Protection Of Children)Act, 2015.

2.1 Provisions Under The Guardians And Wards Act, 1860

Under the mechanism of this act the desirous parents had to make an application to the district court under whose jurisdiction the matter lied and then the court would grant the order under section 7 of the Act. Further, the adoptive parents could seek to move the child to their respective country in order to bring him up according to their culture and designed upbringing.[4]

2.2 The Juvenile Justice (Care And Protection Of Children)Act, 2015

After the recent reframing of this act in 2015 the preamble of the act defines it as an act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established. Some of the vital provisions of the Act are:

• 59(1),(2) of the act talk about inter-country adoptions
• The procedure for such adoptions of orphaned and surrendered children has been defined under §60.
• 68 of the act also defines the powers of the central adoption resource authority.

3. Central Adoption Resource Authority

The Central Adoption Resource Authority (CARA) is an autonomous body of the Ministry Of Women And Child Development, Government Of India. It is the Central Authority and functions as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country as well as inter-country adoptions.[5]

The objective of this authority is to facilitate the orphaned, deprived, destitute and the abandoned Indian Children. At present there are 70 adoption agencies recognised by CARA. From April, 2014 till December 2014; CARA has placed 271 children in inter-country adoption out of which 154 children have got special needs.[6]

3.1 Adoption regulations framed by CARA,2017

In exercise of its power CARA on 4th January 2017 notified certain regulations in supersession to the guidelines of 2015, except as respect things done or omitted prior to the supersession.[7]

The Adoption Regulations have been framed keeping in mind the issues and challenges faced by CARA and other stake holders including the Adoption Agencies & Prospective Adoptive Parents (PAPs). These regulations aim to further strengthen the  adoption programme in the country by streamlining the adoption process.

3.1.1 Salient Features Of The Adoption Regulations, 2017

• Procedures related to adoption by relatives both within the country and abroad have been defined in the Regulations.
• The guidelines have given paramount importance to the child’s interest.
• Validity of Home Study Report has been increased from two to three years.
• The time period available to the domestic PAPs for matching and acceptance, after reserving the child referred, has been increased to twenty days from the existing fifteen days.

• District Child protection Unit (DCPU) shall maintain a panel of professionally qualified or trained social workers.
• There are 32 Schedules annexed to the Regulations including model adoption applications to be filed in the Court and this would considerably address delays prevalent in obtaining the Court order.
• CARA shall be facilitating all adoptions under the Juvenile Justice(care and protect Act, 2015 through Child Adoption Resource Information & Guidance System (CARINGS) and all kinds of adoptions, including adoptions by relatives shall be reported to CARA which would enable safeguards for all adopted children by maintaining their record and ensuring post adoption follow up.
• Transparency, early deinstitutionalisation of children, informed choice for the parents, ethical practices and strictly defined timelines in the adoption process are some other aspects of the Adoption Regulations.[8]

3.1.2 Some Provisions From The Regulations Relevant To Inter-Country Adoptions

• The regulations specify and put limit as to the age of the child after he has been held legally free for giving in adoption by the child welfare committee.
• The procedure of Specialised Adoption Agency filing an application to the court having jurisdiction has been provided which is mutatis mutandis to be followed as in the case of in-country adoptions.
• With regard to inter-country adoptions any individual who is a national of a country which is a signatory to the Hague Convention can approach the Central Authority or the organisation concerned of their respective countries for adoption of a child. The concerned organisation on the completion of a home report shall register the application of the prospective adoptive parents in Child Adoption Resource Information and Guidance System in the format along with the required documents which are mentioned in Schedule – 6 of the regulations.
• A no-objection certificate has to be obtained after which parents can take the child into foster care within the county. This is followed by a court proceeding for an order.
• There are also guidelines for a childcare institution in order to acquire the status of a Specialised Adoption Agency has to follow schedule XXVI of the regulations.
• The regulations also specify the functions of CARA apart from that mentioned in §68 of the Juvenile Justice Act,2015.
• There has been mention on Indian Diplomatic Missions wherein the role of Indian Diplomats has been defined.

4. suggestions And Conclusion

“The child, by reason of physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth, and that mankind owes to the child the best it has to give.”[9]

One aspect to inter-country adoption is that it has led a number of malpractices where unscrupulous persons encourage practices like child trafficking and this is one of the reasons why Supreme court while exercising its power of judicial review laid down guidelines in the previously discussed precedents.

Moreover, the progressive tendencies of a highly populated state like India make the desire for an organised, structured and well arranged system of adoption essential. After observing the above mentioned guidelines and legislative lacunae, it is the imminent necessity of the Indian society to codify a law for the above mentioned issue. This statement comes from the fact that though the Indian government claims to be fully sensitized towards the child rights issue has not been able to reach a beneficial conclusion.

With regard to the recent guidelines of 2017, though they lay down the legal procedure as to inter country adoption and also encourage the role of CARA and functions of Indian Diplomatic Missions, however, guidelines do not provide assurance as to a well organised adoptive system.

Provisions of the Juvenile Justice Act do not hold sufficient for inter-country adoptions owing to the decreasing distances, world unification and obligations of our country to international treaties made the need for a separate legislations for such adoptions necessary.

[1] Author, The Family Of Adoption.

[2] See Article 15(3), Indian Constitution.

[3] 1(18) Guidelines,2015 Central Adoption Resource Authority.

[4] 153rd Report, Law Commission Of India, Pg.4.

[5] http://cara.nic.in/

[6] Annual Report 2014-15, Ministry Of Women And Child Development, Government Of India, pg.  141-142.

[7] See §68 of The Juvenile Justice (Care And Protection Of Children) Act, 2015. The Central Adoption Resource Agency existing before the commencement of this Act, shall be deemed to have been constituted as the Central Adoption Resource Authority under this Act to perform the following functions, namely:— (a) to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency; (b) to regulate inter-country adoptions; (c) to frame regulations on adoption and related matters from time to time as may be necessary; (d) to carry out the functions of the Central Authority under the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption; (e) any other function as may be prescribed.

[8] Press Information Bureau Government Of India, Ministry Of Women And Child Development, http://pib.nic.in/newsite/PrintRelease.aspx?relid=157354.

[9] The Preamble of Declaration of the Right of the child,1959.