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Introduction:
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: 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 [AIR1984 SC469] 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 judgements, 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 recognised 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.
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