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Inter Country Adoption Procedure and Supreme Court Guidelines

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Authored By: Soura Subha Ghosh, IVth year law, Symbiosis Society's Law College, Pune
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.

It is great characteristic of Hindu culture that though out the Hindu period, right from the Vedic age to this date, the Hindus have always desired to have natural born son for the spiritual benefit and the continuation of lineage, yet right from the Vedic age, the existence of secondary sons in one form or the other has been recognised. References of Khetraja (Soil born son), Kanina (Mainden son), Dattaka (Adopted son) can be found in the Vedic literature. Most of these concepts of secondary sons in the course of time became obsolete and during the British period only natural sons and adopted sons existed.

This institution of adoption has become international. 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 through out the world, still it is most unfortunate that often Inter-country adoption leads to misuse or ill use of children. Sometimes, it becomes a mask for trafficking in children. These types of adoption involve Trans-racial, Trans-cultural and Trans -national 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.

Legislation: 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, it did not have any guidelines regarding it. High Court of Bombay and Delhi framed some rules, which were found to be quite insufficient. In the international level though, attempts had been made to legalise Inter-Country adoption through Rights of Child Resolution adopted by the United Nations General Assembly on November 20, 1959 and Guidelines formulated by Expert group and adopted by the Economic and Social Council of the United Nations its 20th session and also through adoption of Children Bill, 1980 relating to Inter-Country adoption legislation. Under the Adoption of Children Bill, 1980 giving in and taking in child for adoption was made unlawful. Clauses 23 and 24 of the said bill were most relevant in this respect.

Clause 23 read as follows:
(1) 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: "(1) 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:
I. the applicant is in its opinion a fit person to adopt the child.
II. the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant.
III. 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.

(2) The provision of this act relating to an adoption order shall, as far as may be, apply in relation to a provisional adoption order made under this section."
Thus it is quite clear from the above provision that, care has been taken to legalize the process of Inter-Country adoption. Similarly, the Rights of the Child adopted by the General Assembly made provisions for protection of children adopted by citizen of another country. Principle 9 of the said declaration clearly mentions that: " The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be subject of traffic in any form ". Moreover in the draft formulated by the Expert Group and adopted by the Economic and Social Council of the United Nations in its 20th session, we find provisions relating to safety of children. Clause 24 the draft states " In Inter-Country adoptions, legal validation of the adoption should be assured in the countries involved." Thereafter, at the regional conference of Asia and Western Pacific held by International Council on Social Welfare in Bombay in 1981, draft guidelines and procedure concerning Inter-Country adoption were formulated and were at the workshop held in Brigton,UK on 4th September. These guidelines were based on the draft declaration and they are extremely relevant as they reflect the almost unanimous thinking of participants from various countries who took part in the regional conference in Bombay and in the workshop in Brigton, UK. Of these guidelines important ones are:
1.4: In all Inter-Country adoption agreements, the welfare of the child should be the prime consideration.
2.6: parents should be encouraged, where possible to provide information about the child's background and development and their own health.

3.5: Before any adoption placement is finalised, the child concerned shall be consulted in a manner appropriate to his/her age and level of development.

5.5: The appropriate authority or agency in born countries shall monitor the reimbursement of costs involved in inter-state adoption to prevent profiteering and trafficking in children.

7.1:It is essential that in Inter-Country adoption child is given the same legal status and rights of inheritance, as if he/she had been born to adoptive parents in marriage.

It is thus submitted that, though there exists no statute dealing with Inter-Country adoption in India, sufficient rule shave been formulated to make it simple worldwide.

Supreme Court Guidelines on Adoption

As already mentioned, the concept of Inter-Country adoption is relatively a new concept. It did not find place in the top priorities of the legislators. There was not and still is not exist a legislation which primarily provides for the rules regarding Inter-Country adoption. But in the year 1984, the Hon'ble Supreme Court of India in a landmark case of Laxmikant Pandey Vs. Union of India laid down few principles governing the rules for Inter-Country adoption. 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 become prostitutes and beggars. Supreme Court in this case expressed its opinion and framed certain rules for Inter-Country adoption. The Hon'ble Court asserted in para 8 of the judgement that, " while supporting Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able provide to the child a life of moral and material security or the child may be subjected to moral and sexual abuse or forced labour or experimentation for medical or other research and may be placed in worse situation than that in his own country ." It further went on to give the prerequisites for foreign adoption. It stated that " In the first place, every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognised or licensed by the government of the country in which the foreigner is a resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social welfare agency in India working in the area of Inter-Country adoption or by any institution or centre or home to which children are committed by the juvenile court." The Supreme Court did not stop at that. It also insisted the age within which a child should be adopted in case of Inter-Country adoption. " if a child is to be given in Inter-Country adoption, it would be desirable that it is given in such adoption before it completes the age of 3 years." Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a foreign parent before he/she attains the age of 3, he/she has more chances of assimilating to the new environment and culture. Another important rule framed by the Court during the course of judgement was " Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedures which must be followed in such a case, resort had to be taken to the provisions of Guardian and Wards Act, 1890 for the purpose of felicitating such adoption.

Following this judgement, the Indian courts gradually broadened the scope of adopting child to other countries. In the later judgments, the courts have also interpreted the word ' custody' to make adoption easier. The Bombay High Court in Re Jay Kevin Salerno [AIR1988 BOM139] iterated that " where the custody of a child is with an institution, the child is kept in a private nursing home or with a private party for better individual care of the child, it does not mean that the institution ceases to have the custody of the child." Therefore it may be submitted that in the absence of any explicit legislation on the subject, the Supreme Court has played a pivotal role in regulating the adoption of tendered aged children to foreign parents. It has taken the help of various international guidelines and subject to Indian culture framed the rules thereof.

Appointment of guardian: Now the question arises how the guardian is to be appointed? This aspect is very important because if care is not taken in selecting the parents then it may lead to trafficking in children. It must be stated in this respect that the provisions of Guardian and Wards Act, 1890 are applicable in case of Inter-Country adoption. Section 7 of the said act provides that, when the district court is satisfied that appointment of the guardian will be for the welfare of the minor, it appoints one. But the person appointed should come under any of the four categories mentioned in the section 8 of the act. These four categories are:
a) Any person desirous of being guardian of the minor
b) any relative or friend of the minor
c) The collector of the district within whose jurisdiction the minor resides or in which he has property
d) The collector having authority with respect to the class to which the minor belongs.

The foreign parents desirous of making the adoption of an Indian child makes an application to the court for being appointed guardian of the person and property of the child whom he wishes to take in adoption and on being appointed the guardian, for leave of the court to take the child with him to his country for taking it in adoption. As because most of the children sought to be adopted are destitute and orphans, notice under section 11 of the act has no specific meaning. In their case there is no agency, which can look into the question whether the proposed adoption will be in their welfare, or not. Thus, the Delhi High Court rules provide that, a notice should be sent to Indian Council of Child Welfare whereas the Bombay and Gujrat High Court rules provides for notice being sent to Indian Council for Social Welfare. Every child welfare agency is required to get license. They are also required to maintain a register in which the names and particulars of all the children proposed to be given in Inter-Country adoption through it should be kept. The child welfare agency processing the adoption must place sufficient material before the court to satisfy that the child is legally available for adoption. It is imperative that the application for adoption of an Indian child by a foreigner should be sponsored by a social or child welfare agency recognized and licensed by the government of the country in which the foreigner is a resident. There are three reasons for this. a) It will reduce the possibility of profiteering and trafficking in children. b) The court won't be able satisfy itself about the eligibility of the parents unless it is sponsored by the agency of the country in which the foreigner resides. c) In case, adoption is made without the intervention of any agency, there would no authority or agency, which could be made responsible for supervising the growth of the child. These agencies are required to submit a Home Study Report that includes amongst others the following a) Source of referral b) schooling facilities c) current relationship between husband and wife etc. Along with this report the agency is also required to send a photograph of the family and a declaration stating that the family is willing to adopt the child in accordance with the law prevailing in their country. In case, child's biological parents exist, then they should be properly assisted in making a decision about giving away the child in adoption to foreign parents by the child welfare agency to which the child is surrendered for making arrangement for its adoption If the child is an orphan or destitute child then the agency must try to trace its biological parents before giving in adoption. If the agency is a non-registered agency, then it must contact a registered agency for giving in adoption. The district court is required to dispose of all the application at the earlier but in no case later than two months from the date of filing of an application. Section 17 of the Guardian and Wards Act, 1890 provides that in appointing guardian of a minor, the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor and in considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor. The main function of the Council of Social Welfare or Council for Social Welfare or any other recognized agency in the Inter-Country adoption is to help the court in finding what is for the welfare of the people. For this purpose the council prepares a report called 'Child Study Report'. This report contains legal and social data regarding the child. The report should also contain an assessment of child's behavioral pattern and its intellectual, emotional and physical development. It should also contain the recent photograph of the child, information about original parents.

Selecting an agency: It is another aspect needs to be taken care of when a person wants to adopt a kid of another country. It is always advisable to use a reputable agency with experience in Inter-Country adoption. Although the quality can vary, the adoption agencies are regulated by state government. If the child is given in adoption without the help of the agency then there are possibilities of involvement in the black market, loss of confidentiality, infringements upon the child's right to privacy and permanency. Therefore, it is always desirable to give the child in adoption through a reputed adoption agency.

Conclusion: Article 39 and 44 of the Indian Constitution, calls for the protection of children and youth from material and moral exploitation. In an effort to evolve a uniform civil code, the government of India introduced an Adoption of children's Bill, 1972. But the Muslim community opposed it. 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 the foster home. Like any other types of adoption, Inter-Country adoption can be expensive, time-consuming and uncertain. It is very important to learn about Inter-Country adoption by reading books, attending parent support group and talking with people who has given a child in adoption or has taken a child in adoption. If these aspects are taken care of then Inter-Country adoption will give thousands of families joy and satisfaction as it has already fulfilled dreams of many.

More Articles on Adoption Law
Inter Country Adoption Procedure and Supreme Court Guidelines
The Paradox of Inter Country Adoption
Adoption under Juvenile Justice Act

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