Inter Country Adoptions, Indian Perspective

TABLE OF CONTENTS

R ESEARCH ESEARCH METHODOLOGY......................................................................................................I ACKNOWLEDGEMENT...............................................................................................................II

1.

ADOPTION AND INTER -COUNTRY ADOPTIONS....................................................................1

1.1. Adoption..............................................................................................................1 1.2. 1.2. Inte Interr Cou Count ntry ry Adopt doptio ion n .....................................................................................1 2. ADOPTION LAWS IN DIFFERENT ARENA............................................................................4 2.1. .1. Chi China..................................................................................................................5 2.2. South South Korea Korea......................................................................................................6

2.3. LGBT Ad Adoptions.................................................................................................7 3. INDIAN LEGISLATIONS ON INTER -COUNTRY ADOPTIONS.....................................................9 3.1. THE LANDMARK  CASE OF IN R E: R ASIKLAL ASIKLAL CHHAGANLAL METHA..............................9 3.2. CASE OF L AXMI  K  ANT  P  ANDEY  V. U  NION  OF  I  NDIA.....................................................10 3.3. 3.3. Ot Othe herr Sign Signif ific ican antt Case Casess ....................................................................................12 4. CENTRAL ADOPTION R ESOURCE ESOURCE AUTHORITY (CARA)...................................................14 4.1. Procedu Procedure re for adopt adoption ion from from India India by NRIS/O NRIS/OCIS/ CIS/ PIOS/ PIOS/For Foreigh eighners ners .....17  Step I (Registration for NRI/OCI/PIO/Foreign PAPs)..........................................17   Step II (Home Study and Other requirements)................................................ requirements)................................................ .......18  Step III (Advance (Advance NOC to PAPs by CARA)........................................................ ....19  Step IV (Matching, Referral, Consent and confirmation confirmation of adoption proposal). proposal). .20  Step V (Issue of No Objection Objection Certificate Certificate to Child by CARA).......................... CARA)................... ............21 .....21  Step VI (Filing of Petition in the Court).................................................................21  Step VII (Passport and Visa)...................................................................................22  Step VIII (Child travels travels to adoptive country)............................................... country)............................................... ...........22 ........ ...22 5. STATUTES GOVERNING INTER -STATE ADOPTION IN INDIA................................................... 23

The Inter-Country Adoptions - Indian Perspective 5.1. Juvenile Juvenile Justice Justice (Care (Care and and Protec Protection tion of Child Children ren)) Act, Act, 2006 2006 .....................24 6. GUIDELINES PROVIDED BY UN...................................................................................... UN...................................................................................... ......................................................................................27 27 6.1. The Hague Hague Conve Conventio ntion n and the the ratifi ratificati cation on on inter inter-cou -countr ntry y adoption adoption by th the Government of India on 6 June, 2003...............................................................27 6.2. 6.2. The Conve Conventi ntion onss on the the Righ Rights ts of the the Child Child (CRC) (CRC) ......................................28 CONCLUSION........................................................................................................................ ........................................................................................................................30 30 Submitted to: Submitted from: BIBLIOGRAPHY.................................................................................................................XXXVI XXXVI Ms. Gagan Preet Abhiwad Abhiwadya ya Sood (470) (470 ) Bibliography Arnab Naskar Naskar (459) (4 59) Mohinder Mohinder Pratap Libra (469 ) Vishu Agrawal (450)

[1] R ESEARCH ESEARCH METHODOLOGY

When When it come comess to meth method odol olog ogy y which which is to be used, used, vario various us kinds kinds of rese resear arch ch methodologies are put in our research project. We have used non-empirical research to accomplish this project with possible wisdom. We have used explanatory and descriptive research in concept of Judiciary, theoretical analysis and recent happenings. So, it is very hard for us to give the precise name of any one research methodology which we are using for the instant project.

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ACKNOWLEDGEMENT

The gratification and elation on the completion of this project will be incomplete without ment mentio ioni ning ng all all the the peopl peoplee who who help helped ed to make make it poss possib ible le,, whos whosee guida guidance nce and encouragement was valuable to us. We express our sincere and heartiest thanks to Ms. Ms. Gagan Gagan Pree Preett who has been a constant source of inspiration to us in completing the project to its rightful path. We are immensely indebted to for her inspiring guidance and kind suggestion in carrying out the  project. We spec specia iall lly y thank thank our our paren parents ts who who gave gave us a chanc chancee to stud study y in this this este esteem emed ed unive univers rsit ity, y, a para paradi dise se for for lega legall edif edific icat atio ion n and and all all who who suppo support rted, ed, us dire direct ctly ly or  indirectly, for successful completion of the project work. Last, but not the least; we thank our institution, Rajiv Gandhi National University of  Law, for giving us the opportunity for developing the project.

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CHAPTER  I 1. ADOPTION AND INTER -C -COUNTRY ADOPTIONS 1.1.Adoption

The practice of adoption can be crudely defined as ‘the admission of a stranger by birth to the privileges of a child by a legally recognized form of affiliation’.1 It means accepting a child as a biologically born child of our own. This is a remedy for the childless couple to have a child of their own. It is an act of establishing a person as parent to one who is not in fact or in law his child. 2 It taking of stranger into the family and considering and treating him, in all respects, as if, by birth that child belonged to that family; or it is the adoptive parent acting towards the child as if that child were their  own. In this project we will discuss about adoption, a complex phenomenon, intimately knitted into its family law frame work and shaped by the pressures affecting the family in its local social context. Once the adoption is complete, all rights obligations and control of  the natural born family ceases to exists over the child, while new rights comes into existe existence nce as far as adopti adoptive ve family family is concer concerned ned.. The status status of the natura naturall parent parentss  becomes nothing but that of a third party, with respect to the child who has been adopted  ___  and moreover, the parents who have adopted the child or the adoptive parents parents take over   ___ 

the responsibilities of the child. It is one of the means of solving the problem of destitute  ___   ___   ___   ___  1.2.Inter Country Adoption  ___   ___   ___  If we talk talk abou aboutt Inte Interr Count Country ry adopt adoptio ions ns or Inte Intern rnat atio ional nal adopt adoptio ion, n, it is a type ty pe  ___   ___  of adoption in which an individual or couple becomes the legal and permanent parents of   ___  1 Raghunath Behera v. Balaram Behera And Anr . AIR 1996 Ori 38.  ___   ___  2 Adoption, > last accessed on November 7,  ___  2010 at 7:22 IST.  ___  3 Adoption Adoption inter-coun inter-country, try, > last accessed accessed  ___  on  ___   November 7, 2010 at 7:22 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

and orphans. 3

[2] a child that is a national of a different country. In general, prospective adoptive parents must meet the legal adoptions requirements of their country of residence and those of the country whose nationality the child holds.4 The laws of different countries vary in their willingness to allow international adoptions. Some countries, such as China and Korea, have relatively well-established rules and  procedures for international adoptions, while other countries expressly forbid it. Some countries, notably many African nations, have extended residency requirements for  adoptive parents that in effect rule out most international adoptions. Malawi, for instance, requires residency except in special cases.5 Inter-country adoption is an increasingly common form of family formation. 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. Inter country adoption is a subject of international law in several senses. First, because inter country adoption involves the immigration of persons from one nation to another, it raises core national sovereignty issues with international law significance.6 Second, Inter  country adoption as a humanitarian matter implicates human rights issues, which have  become a significant focus of international law. An exhaustive scope of international law  ___ 

applicable to inter country adoption is beyond the scope of this Article. However,  ___  two treaties will be reviewed: the Convention on the Rights of the Child (CRC)7 and ___  the  ___   ___  Hague Convention on Protection of Children and Co-operation in Respect of Inter  ___   ___   ___   ___  4 last accessed on November 3, 2010 at 13:22 IST.  ___   ___  5 last accessed on November 2,  ___  2010 at 7:32 IST.  ___   ___  6 Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the Indian Adoption  ___  Scandals, Seton Hall Law Review, Vol. 35:403, Page No. 406.  ___   ___  7 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR,44th Sess., Supp. No. 49, at 167, U.N.  ___  Doc. A/44/49 (1989), 28 I.L.M. 1448  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[3] country Adoption (Hague Convention) .8

The CRC is probably the most relevant

human rights convention applicable to inter country adoption, which we will be dealing in the later part of our project work. The details regarding this will be discussed in Chapter VI.

 ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___  HAPTER   ___   ___  8 Hague Convention on Protection of Children and Co-operation in Respect of Inter country Adoption,  ___  May 29, 1993, 32 I.L.M. 1134.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

C

II

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1. ADOPTION LAWS IN DIFFERENT ARENA India is a legally pluralistic state. It is a land of diverse cultures, where people are free to   practice and profess their own religion by virtue of constitutional mandate provided under Article 25. As adoption is legal affiliation of a child, in the absence of common code it is the subject matter of personal laws. The Institution has changed over a period of time in its form, purposes and objects because it is natural that as human though   progresses, the concept and organisation and social Institutions also advance and refined.9 Institution of adoption is prevalent today in one form or other in almost all legal systems barring a few systems such as Islamic countries. The Hindu and Roman legal systems are probably among the only ancient systems of law which recognises adoption.10 In India, even today, it is not a part of uniform civil code but part of personal laws and this institution is available only to Hindus. Muslims, Parsis and Christians do not recognise adoption laws and have to approach court under The Guardians and Wards Act, 1890.11 Adoption is permitted by legislations amongst Hindus and by customs amongst a few communities. Earlier a childless couple would adopt and take care of and  bring up a child either of immediate or distant family member. Nonetheless, the practise of adopting an unrelated child is still in its infancy in India.  ___   ___   Now, coming back to the topic, i.e., intercountry adoptions, the adoption laws of China  ___   ___  and S. Korea are most suitable for international adoptions.12 These laws are worth  ___   ___  analysing. The other unique law which needs special attention is LGBT adoptions. There  ___   ___  are many countries where LGBT adoptions are illegal, on the other hand, in some well  ___   ___   ___  9 Gagan Preet, Hindu Adoption-A journey from Past to Present , Paradise Publishers, Jaipur, 2010, Pg. 17.  ___   ___  10 Ibid.  ___   ___  11 The Guardians and Wards Act, 1890, Article 1 (2).  ___  12 International adoption last assessed on 10  ___   ___   November 2010 at 16:32 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2] codified. Whatsoever may be the laws, the same sex couples faces lots of problem in adoptions. We had tried to cover up these topics in brief. 2.1. China

The China adoption program is one of the most reliable and stable, and China is the country from which most U.S. citizens have elected to adopt since the year 2000. In 2008, U.S. citizens adopted approximately 3,909 children from China. Children available for adoption are mostly girls, infants to 6 years of age. Older and special needs children are also available. These children reside in orphanages.13 Due to lack of transparency or say lack of freedom of speech in China, we could hardly find any precise law prevailing in China. The only thing of importance which could retrieve is the amendments in intercountry adoption policies of China. The Seventh National People's Congress of the People's Republic of China originally established the Current Adoption Law of China on December 29, 1991 (effective April 1, 1992).14 On November 4, 1998, the Ninth National People's Congress amended this law, effective April 1, 1999, in several ways relevant to foreign adopters. The adoption law applies across the board to all adoptions in the PRC; it includes adoptions of orphaned, abandoned, and handicapped children in social welfare institutions, adoptions of blood relatives and step-children, and adoptions of nonrelated children still living with their 

 ___   ___   birth families or guardians. These laws are applicable for both domestic and inter country  ___  adoptions.15  ___   ___  The most significant change for foreign adopters in China's adoption law is that it allows  ___   ___  another exception to the adopter-must-be-childless requirement. Previously, the only  ___   ___   ___  13China Adoption, < http://china.adoption.com/> last assessed on 10 November 2010 at 16:30 IST.  ___   ___  14 Chinese Cultural Centre of San Francisco, < http://www.c-c-c.org/> last assessed on 10 November 2010  ___  at 16:32 IST.  ___   ___  15 Laura A. Cecere, Changes Broaden Opportunity For China's Abandoned Children To Be Adopted,  ___   ___  last assessed on 10 November 2010 at 16:32  ___  IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2] exceptions to this requirement were if the family adopted a child whose parents are deceased or a child who has a special need. The law has been amended to add another  exception: abandoned children "whose parents cannot be ascertained or found (and who are) under the care of social welfare institutions." Thus, adopters are still required to be childless to adopt a healthy child, unless that child has a special need, has been orphaned, or has been abandoned and is in the care of a social welfare institute.16 China also has a fixed age for adoption. No person in China below the age of 30 could adopt a child, but no upper limit.17 There is also a provision of which qualifies children available for adoption: only children under age 14 who have been orphaned (parents deceased) or abandoned or whose parents are unable to raise them due to unusual difficulties. These are some of the unique features of China’s Adoption policies, which are considered as the best in the world.18 2.2.South Korea

The South Korea adoption program is the oldest organized international adoption   program operating in the U.S. In 2008, U.S. citizens adopted approximately 1,065 children from South Korea. Children available for adoption include boys and girls, ages 6 months and older, healthy and special needs. These children reside in foster care and

 ___   ___  group homes.  ___  As far as the resources could be analysed, the Korean Laws are stricter than China’s. ___  In  ___  Korea, the provision of adoption is only for hetero married couples. There is no provision  ___   ___   ___  16 Current Adoption Law of China, 1991, Article 8.  ___   ___  17 Ibid  ___   ___  18 International Adoption, < http://en.wikipedia.org/wiki/International_adoption>last assessed on ___  10  ___   November 2010 at 16:32 IST.  ___   ___   ___  19 Adoptive Families, < http://www.adoptivefamilies.com/news.php> last assessed on 10 November 2010  ___  at 11:21 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___  19

[2] of adoption for homosexuals and LGBT community members. Even they don’t believe in adoption by singles as they have o legal provision for it. Now, if we talk about the minimum age of adoption, only a couple of age between 25 and 42 could go for  adoption. The age difference of the husband and wife should not be more than 10 years. There should not be more than 4 children of less than 18 years living in the home. There is also a specification on the length of marriage. The adopting couple must be married for  at least 3 years. Even the second married couple must also have to be married for at least 3 years. But not more than 2 marriages are allowed. Two of the most amazing laws are couples may not be more than 30% overweight. Applicants must not exceed the weight limit for their height at the time of  application and applicants with a history of any kind of depression or mental illness must  be stable for five (5) years with or without medication20. 2.3.LGBT Adoptions

Adoption by same-sex couples is prohibited by a majority of countries, but this is an area of active debate and a growing number of jurisdictions are allowing it. Many gay and lesbian people are choosing to become parents. Some bring children with them from   previous relationships or some couples impregnate throughartificial insemination. Others are finding adoption to be their preferred method of bringing a child into their  family. Should the sexual orientation of prospective adoptive parents be considered when  ___   ___ 

 placing children in adoptive homes? The adoption of minor children by lesbian and  ___  gay adults has been a topic of considerable debate. Although substantial research  ___  has

 ___   ___  demonstrated that children of lesbian and gay parents develop in ways that are similar to  ___   ___  those of heterosexual parents, families with lesbian and gay parents remain controversial  ___  in courtrooms, legislatures, and in the media.21 Meanwhile, many children await  ___   ___   placement with permanent families.  ___   ___   ___  20Dillon International, last assessed on 10 November 2010 at  ___  14:23 IST.  ___   ___  21 Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson; Parenting and Child Development in  ___   Adoptive Families: Does Parental Sexual Orientation Matter?, 2010, Pg. 164.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2] Gay couples looking to adopt face a number of challenges that married, heterosexual couples do not. Adoption laws in the United States, for example, remain a patchwork  quilt when it comes to lesbians and gay men adopting. Many states do not allow adoptions by any unmarried couples, which automatically preclude same-sex couples from adopting in those states; and a few states – including Florida, Mississippi,  Nebraska, Oklahoma, Utah and Virginia – have enacted laws that specifically bar gay individuals or couples from adopting. Here's an example: “A gay couple wants to adopt a newborn. They are chosen by a birth mother  in a state that doesn't allow lesbian or gay couples to adopt jointly. They fly to that state to be present at the birth and to help welcome their new daughter  into the world; the birth mother tearfully presents the baby to them with her  blessings and their promise to send her photos and keep her memory alive  forever. Their plan is to bring the baby back to their home state and adopt  her there, since gay couples are allowed to adopt as couples in their home  state, and not in the state where the child was born. Unfortunately, once they return home they discover that even though they have the birth mother's full  consent, and even though their state has no problem with their adoption, they are unable to adopt as a couple because the Interstate Compact on the  ___ 

 Placement of Children (ICPC) requires the state in which their daughter was  ___  born to approve the adoption, and that state's law expressly prohibits  ___ 

 ___   ___  adoption by couples of the same gender.”  ___   ___   ___  In the past, gay couples have had to be secretive in adopting a child due to certain  ___   prejudices that existed against homosexuality. For example, one partner would adopt ___  the  ___   ___  child as a single parent and the other would pretend to be a roommate or friend.  ___   ___   ___   ___  22 Gay Adoption Issues, last assessed ___  on  ___  10 November 2010 at 4:32 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___  22

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Currently in Canada a gay couple can legally marry and they are allowed to adopt, but in the United States it is dependent upon each individual state. Here is a sample of countries and states where same sex adoption s legal and where it is prohibited.

CHAPTER  III 1.

INDIAN LEGISLATIONS ON INTER -COUNTRY ADOPTIONS

In this chapter we will deal about the Indian perspective relating to the inter-country adoption. Adoption is a beautiful means to enhance the lives of children and parents alike. Its a way to secure a right of every child to a caring family environment ; a   permanent family for a child. It enables a parent-child relationship to be established  between persons not biologically related. It is defined as a process by which people take children not born to them and raises them as a member of their family. In country like India where adoption is a century old tradition for Hindus. Inter-state adoption is definitely a major legal perspective.  ___   ___   ___  23 In the case of  In Re: Rasiklal Chhaganlal Metha the question of inter-country  ___   ___  adoption was first debated, whereby the Court held that inter-country adoptions  ___   ___  under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally  ___  valid.24 The sections says that the adoptive parents must fulfil the requirements of law ___  of   ___  adoptions in their country and must have the requisite permission to adopt from  ___  the  ___  23 A.I.R. 1982 Gujarat 193.  ___   ___  24 Sec-9(4) - Persons capable of giving in adoption - Where both the father and mother are dead or have  ___  completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, ___  the  ___  guardian of the child may give the child in adoption with the previous permission of the court to any  ___   person including the guardian himself.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

3.1.THE LANDMARK  CASE OF IN R E: R ASIKLAL CHHAGANLAL METHA

[2] appropriate authority thereby ensuring that the child would not suffer in immigration and obtaining nationality in the adoptive parents’ country.25 The Indian Council of Social Welfare has defined an inter-country adoption as one in which “the adopters and the child do not have the same nationality as well as one in which the habitual residence of the adopters and the child is in different countries”. 26 The Indian Council of Social Welfare has pointed out that inter-country adoption is not a simple matter. They involve a variety of principles and procedures over migration, citizenship, the socio-economic situation of adoptive parents, matching parents with the child, and the acceptance of the child in a different community and culture. Therefore, the Indian Council of Social Welfare has recommended that in the interests of the child it is necessary to regulate inter-country adoption by legislations and by strict collaboration  between qualified and au theorized personal and social authorities. The end result of the  process will be that adoption would not be mere legalistic in approach but the creation of  an environment in which the child can grow with the same nationality. However, since there are more children in need of homes than there are parents forthcoming, intercountry adoptions are filling the gap. The Indian Council of Social Welfare has, therefore, also focused attention to this matter specially to ensure that the child's interest is secured in cases of such adoptions.27 3.2.CASE OF L AXMI  K  ANT  P  ANDEY  V. U  NION  OF  I  NDIA

 ___   ___   ___  The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v.  ___  Union of India ,28 had framed the guidelines governing inter-country adoptions (Ref.  ___   ___  Annexure A) for the benefit of the Ministry of Welfare, Government of India . The  ___   ___  main objective, as held by the Court was to prevent trafficking of children and to protect  ___   ___   ___  25 A.G.Gupte, Hindu Law , Premier Publishing Co., Allahabad, 2003, Pg. 768.  ___   ___  26 Ibid.  ___  27 Amicus Curiae and D.D. Vyas, Adv. for the Indian Council of Social Welfare, in the case of In ___  Re:  ___  Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193.  ___   ___  28 A.I.R. 1984 S.C. 469.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2] the welfare of adopted children so that the evils of the inter-country adoption can be  prevented to a certain extent. Furthermore, the apex court in the judgment of the instant case had also pointed out that in ordinary circumstances the court, entertaining an application on behalf of a foreigner seeking to be appointed guardian of a child with a view to eventual adoption, should not insist on the foreigner making a deposit by way of  security for due performance of the obligations undertaken by him. However, in certain cases, the court may pass an exceptional order requiring him or her to make such deposit. The court has also observed that it is at that point of time that the execution of a bond would ordinarily be sufficient.29 Justice Bhagwati while giving its second supplemental judgment in the  Laxmi Kant   Pandey’s v. Union of India 30, have opined that -

“We would, therefore, direct that in case of a foreigner who has been living in India for  one year or more, the home-study report and other connected documents may be allowed to be prepared by the recognised placement agency which is processing the application of  such foreigner for guardianship of a child with a view to its eventual adoption and that in such a case the Court should not insist on sponsoring of such foreigner by a social or  child welfare agency based in the country to which such foreigner belongs nor should a home-study report in respect of such foreigner be required to be obtained from any such foreign social or child welfare agency, the home study report and other connected  ___   ___ 

documents prepared by the recognized placement agency should be regarded ___  as  ___   ___   ___  The Court further held that - If it was not possible to find suitable adoptive parents ___  for  the child within the country, it may become necessary to give the child in adoption ___  to  ___   ___  foreign parents rather than allow the child to grow up in an orphanage or an institution  ___  where it will have no family life and no love and affection of parents and quite often, ___  in  ___  the socioeconomic conditions prevailing in the country, it might have to lead the life  ___  of a  ___   ___  29 Laxmi Kant Pandey v. Union of India , A.I.R. 1984 S.C. 469.  ___   ___  30 Ibid  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

sufficient.”

[2] destitute,

half

clad,

half-hungry

and

suffering

from

malnutrition

and

illness.31 Thus foreign adoption was held to be consistent with India’s National Policy on Children. 3.3.Other Significant Cases

Recently, the Delhi Court in Maria Chaya Schupp, A German National represented by her Constituted Attorney, Smt. Geeta Menon v. The Director General of Police and  Ors.32 had held that it is essential for all the adoption to carefully scrutinize all the

adoption documents along with taking down the relevant permissions from the biological  parents before going for an inter-country adoption. A similar view was held in the case of   Mr. Craig Allen Coates S/o Mr. Roger Marvin Coates and Ms. Cynthia Ann Coates W/o Mr. Craig Allen Coates through Mrs. Rekha Arora Adoption Officer Welfare   Home for Children v. State through Indian Council for Child Welfare and Welfare  Home for Children33 whereby the Court held that where the adoptive parents fail to

establish clearly the motive for adopting a child from another country, then the adoption  process would be barred and be declared as malafide and that CARA (details regarding CARA will be discussed later) should ensure more stricter guidelines in this regard. However, the apex court in Anokha v.  State of Rajasthan34 had held that the above guidelines would not be applicable where the child is living with his or her biological  ___   parent(s) and who have agreed that he or she is to be given in adoption to a foreign  ___ 

 ___  couple known to them. The court in such cases has to deal with the application

31 Re: Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193. 32 2010 CriLJ 883. 33 162(2009) DLT 605. 34 2006(1) Hindu Law Reporter 122.

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[2] under section 735 of the Guardian and Wards Act 1890 36 and dispose of the same after   being satisfied that the child is being given in adoption voluntarily with the parents being aware of the implications of adoption, i.e. that the child would legally belong to the adoptive parents’ family; that the adoption is not induced by any extraneous reasons such as the receipt of money etc; that the adoptive parents have produced evidence in support of their suitability; and finally that the arrangement would be in the best interest of the child. However, the Supreme Court in St. Theresa’s Tender Loving Care Home and others v.  States of Andhra Pradesh 37, had dissented with the adoption procedures by observing

that –  “While making the requisite and prescribed exercise it has to be kept in mind that the child is a precious gift and merely because he or she for  various reasons is abandoned by the parents that cannot be a reason for  further neglect by the society.”

 ___   ___   ___   ___   ___   ___   ___   ___  35 7. Power of the court to make order as to guardianship  ___   ___  (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made ___  (a) appointing a guardian of his person or property, or both, or   ___   ___  (b) declaring a person to be such a guardian, the court may make an order accordingly.  ___  36 Guardian and Wards Act 1890, last accessed on Nov 6, 2010 at  ___  9:45  ___  IST.  ___   ___  37 2006(1) Hindu Law Reporter 122.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[3]

CHAPTER  IV 1. CENTRAL ADOPTION R ESOURCE AUTHORITY (CARA) The Central Adoption Resource Authority (CARA) is an Autonomous Body under the Ministry of Women and Child Development, Government of India. Its mandate is to find a loving and caring family for every orphan/destitute/surrendered child in the country. The Central Adoption Resource Authority (CARA) was initially set up in 1990 under the aegis of the Ministry of Welfare in pursuance of Cabinet decision dated 9 May 1990. Pursuant to a decision of the Union Cabinet dated 2 July 1998, the then Ministry of  Social Justice and Empowerment conferred the autonomous status on CARA with effect from 18 March 1999 by registering it as a Society under the Societies Registration Act, 1860. It was designated as Central Authority by the Ministry of Social Justice and Empowerment on 17 July 2003 for the implementation of the Hague Convention on Protection of Children & Cooperation in respect of Inter-country Adoption (1993).  ___  The  ___ 

Ministry of Women & Child Development has of late been mandated to look after ___  the  ___ 

subject matters ‘Adoption’ and ‘Juvenile Justice (Care & Protection of Children) Act,  ___   ___ 

2000’ pursuant to 16 February 2006 notification of Government of India regarding  ___  reallocation of the Business.38 The goal is to find a family for as many orphan children ___  as  ___ 

 ___   ___   possible and to safeguard their interests as visualized in the UN Convention on Child  ___  39  ___  Rights and Hague Convention on Inter-country Adoption (both ratified by India).  ___  38 About Central Adoption Resource Authority,  ___  last  ___  accessed on Nov 6, 2010 at 10:12 IST.  ___  39 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last ___   ___  accessed on Nov 7, 2010 at 7:22 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[3] The CARA Guidelines requires that every application from a foreigner wishing to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident. The agency should be recognised by CARA. In-country Adoption of Indian children is governed by In-country Guidelines-2004 while Inter-country Adoption procedure is governed by a set of  Guidelines last issued on 14 February 2006 (CARA guidelines). These Guidelines are a follow up of various directions given by the Supreme Court of India in   Laxmi Kant   Pandey v. Union of India .40 These Guidelines have been amended and updated from

time to time keeping in mind the welfare of such child. While CARA is engaged in clearing inter-country adoption of Indian children, its principal aim is to promote incountry adoption. In fact, CARA ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India. CARA also provides financial assistance to various NGOs and Government run Homes to promote quality child care to such children and place them in domestic adoption.41 While CARA is the nodal body set up at the governmental level, the actual functioning of individual adoption agencies is monitored by Voluntary Coordinating Agencies (VCA) like the Coordinating Voluntary Adoption Resource Agency (CVARA) in Delhi, and other local bodies in other states.42  ___ 

The local VCA in Delhi, CVARA was formed in 1984, on the recommendations of ___  the  ___   ___   ___  SOS Children's Villages of India •  ___   ___  Holy Cross Social Service Centre •  ___  Missionaries of Charity •  ___   ___  Church of North India •  ___   ___   ___  40 A.I.R. 1984 S.C. 469.  ___   ___  41 Supra note 38.  ___  42 Adoption in India: the legal angle, last accessed on Nov 7, 2010 at 19:22 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

Supreme Court. The ten adoption agencies that come under its umbrella are:

[1] •

Welfare Home for Children

•

Delhi Council for Child Welfare

•

Matri Chhaya

•

Children of the World

•

Right to Life Society

•

Asharan orphanage

Prof. M.N. Das observed the importance of CARA guidelines in a precise manner in his

 book that –  “Firstly , it will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children, because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might, in his anxiety to secure a child for adoption, be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency or  individual procuring the child. Secondly , it would be almost impossible for the court to satisfy itself that the foreigner 

who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secured family life to the child and would be able to handle trans-racial, transcultural and trans-national problems likely to arise from such adoption, because, where the application for adopting a child has  ___  not  ___ 

 ___   been sponsored by a social or child welfare agency in the country of the foreigner, there  ___   ___   ___  in Thirdly , in such a case, where the application of a foreigner for taking a child ___   ___  adoption is made directly without the intervention of social or child welfare agency, there  ___   ___  would be no authority or agency in the country of the foreigner who could be made  ___   ___  responsible for supervising the progress of the child and ensuring that the child ___  is  ___  adopted at the earliest in accordance with law and grows up in an atmosphere of warmth  ___  43  ___  and affection with moral and material security assured to it.”  ___   ___  43 Guardians and Wards Act, Eastern Law House: India, 14th edition, 1995, pg 80–81.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

would be no proper and satisfactory home study report on which the court can rely.

[3] CARA will approve/authorize and maintain a list of all Enlisted Foreign Adoption Agencies EFAAs) who can forward applications of foreign prospective adoptive parents including NRIs (Non Resident Indians) to it for approval.44 It will recognize/accredit Indian Placement Agencies for Inter-country Adoption (RIPA). It shall publish once a year a list of RIPAs in leading national and vernaculars newspapers. CARA shall send this list once a year to the High Courts in the country for circulation to the District Courts. RIPAs shall function as accredited bodies as per the Hague Convention of 1993. (Ref. Annexure B)

4.1.Procedure for adoption from India by NRIS/OCIS/ PIOS/Foreighners

In the light of Supreme Court directions in L.K.Pandey v. Union of India and guidelines issued by various High Courts in the country and India ratifying Hague Convention on Inter-country Country Adoption in the year 2003, it has now been decided to receive all applications from all prospective NRI/OCI/PIO/Foreign adoptive parents directly from Central Authority/Government Department or EFAA at CARA. The procedure will be followed as under and termed as “ Adoption proceedings under the Hague Convention”.45

4.1.1.  Step

I (Registration for NRI/OCI/PIO/Foreign PAPs)

 ___   ___  All PAPs may register with the nearest Enlisted Foreign Adoption Agencies •  ___   ___  (EFAA) and Central Authority/Government Department dealing with adoption  ___   ___  matters. Nearest Indian Diplomatic Mission or Central Adoption Resource  ___   ___  Agency, New Delhi are contact points for adoption information/application  ___  form/checklist of documents.  ___   ___   ___   ___  44 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last ___   ___  accessed on Nov 7, 2010 at 7:22 IST.  ___   ___  45 Child Adoption Policies in india, < http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child  ___  %20Adoption%203%2007.doc>last accessed on Nov 7, 2010 at 7:22 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[1] •

The applicants will have to contact or register with an Enlisted Foreign Adoption Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they are resident.46

•

The applicants will have to contact or register with an Enlisted Foreign Adoption Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they are resident.

•

The applicants should obtain the permission of the competent authority for  adopting a child from India. Where such Central Authorities or Government departments are not available, then the applications may be sent by the EFAA with requisite documents including documentary proof that the applicant is  permitted to adopt from India. However, NRI and OCI parents residing in Middle East are exempted from such permission as adoption is not recognized in such countries.

4.1.1.Step II (Home Study and Other requirements) •

A home study report of the prospective adoptive parents will be prepared based on the standard Guidelines by the professional social worker of the EFAA or  Central Authority/Government Department dealing with adoption matters. The adoption application should contain all documents prescribed in. All documents  ___   ___ 

are to be notarized. The signature of the notary is either to be attested by  ___  the Indian Embassy/High Commission or the appropriate Govt. Department of  ___  the

 ___   ___  receiving country. If the documents are in any language other than English, then  ___   ___  the originals must be accompanied by attested translations (see apostle  ___  convention).47  ___   ___   ___   ___  46 Procedure for Inter-country adoption,  ___  last accessed on Nov 7, 2010 at 4:54  ___  IST.  ___   ___  47 Apostle convention, last accessed on  ___   Nov 7, 2010 at 4:54 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[3]

•

Each application should include all the required documents along with authentications and translations in English if required so. In addition, each application should indicate any preferences the prospective adoptive parents might have about the child’s age, sex, physical/medical condition, or region of  origin within India.

4.1.1.  Step

•

III (Advance NOC to PAPs by CARA)

EFAA/CA/concerned Government Department of the receiving country has to submit copies of the adoption applications (not original) directly to the CARA for  consideration. On receiving complete dossier, CARA shall make entry into the central registry and approve the same.

•

Applications may also be forwarded through concerned CA/Government Department. On receiving dossaire, a case file will be opened at CARA and it will advise the PAPs through their sponsoring agency whether additional documents are required.

•

 ___   ___  Once CARA approves the application, it will communicate  ___  the  ___  EFAA/CA/Government Department to send the original proposal to the particular   ___   ___  RIPA for arranging a suitable match if already indicated on the application;  ___  otherwise, CARA shall suggest the name of alternate SAA (RIPA) to send ___  its  ___  original dossier where children are available for inter-country adoption to respond  ___   ___  to such applications. Initial approval given by CARA to the PAPs will no way  ___  guarantee referral from India nor it will be obligatory on the part of CARA ___  to  ___   ___   ___   ___   ___   ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2] match a child. Any referral depends upon availability of children for inter-country adoption.48

4.1.1.Step IV (Matching, Referral, Consent and confirmation of adoption  proposal)

•

SAA (RIPA) shall be responsible for placement decision, matching and referral to PAPs in each case. RIPA need not transmit matching information to prospective adopters directly, on the other hand, it will transmit such information to the EFAA/CA/Govt. Department as the case may be as required under regulations of  Hague Convention.

•

On receiving information about CARA’s initial approval and further original dossier of the PAP, the SAA (RIPA) shall make every effort to match a child according to the choice given by the PAPs and accordingly it shall forward the sponsoring agency a copy of the CSR and PER of the child along with a letter of  introduction about the child. This document is commonly called a ‘referral.’

•

Once the matching information has been received and discussed by the adoption  ___   ___ 

agency with the PAPs, the PAPs then may visit the child in India. At this stage,  ___   ___  the child can not be entrusted to PAPs as a result of this initial visits to/meetings

 ___   ___  with, the child.  ___   ___   ___  On acceptance of the child by the PAPs, the sponsoring agency shall transmit ___  its •  ___  original copy to RIPA and photocopy/scanning copy to CARA. CARA shall  ___  maintain an online updating system to enable PAPs to see their status ___  of   ___   ___  applications.  ___   ___  48Draft Guidelines on Adoption, < http://csa.org.in/DRAFT%20GUIDELINES%20ON  ___  %20ADOPTION.doc> last accessed on Nov 7, 2010 at 4:54 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2]

•

If prospective adoptive parents are declined to accept referral in consecutive 3 times, in such case, the PAPs may be advised by the EFAA/CA/Government Department to withdraw their application for adoption from India. SAA (RIPA) requires a response on a referral within 4 weeks of sending a referral to a family.

•

PAPs are advised to visit the proposed child if they so desire after referral. Copy of any communication between SAA (RIPA) and foreign agency/authority shall  be endorsed to CARA and it will endorse copy of relevant communication to the sponsoring agency or RIPA as the case may be.

•

CARA shall maintain a list of special needs children on its website which will be updated from time to time for the benefit of PAPs and children. For such children, PAPs may approach CARA through their EFAA/CA/Government Department and CARA in such cases shall assist the SAAs to expeditiously send referrals to PAPs.

4.1.1.Step V (Issue of No Objection Certificate to Child by CARA)

•

•

•

 ___   ___  CARA shall expeditiously issue NOC at this stage since it has already received  ___   ___  HSR from the sponsoring agency, SARA Clearance from the State and CSR/PER   ___  initially from SAA and later their acceptance through the sponsoring agency.  ___   ___   ___   ___   NOC (No Objection Certificate) issued by CARA conveys that CARA has ___  no  ___  objection to the adoption proposal and a copy of it shall be mailed to RIPA,  ___   ___  SARA, CA, EFAA.  ___   ___   ___   ___  Once the PAPs have received they may proceed to obtain a Court Order in India  ___   ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[3]

•

 No SAA can file an application in the competent court for inter-country adoption without a “No Objection Certificate” from CARA and no child(orphan, abandoned or surrendered) can be allowed to travel outside the country without this valid document.

4.1.1.  Step

•

VI (Filing of Petition in the Court)

On receipt of the NOC from CARA, the RIPA shall file a petition for adoption in the competent court as far as possible within 15 days if the court is not closed. The competent court may dispose the case as early as possible in the first hearing itself or within a maximum period of 2 months and issue an appropriate order for  the placement of the child with the PAP and allow the PAP to take out of the country.

•

On receiving the Court Order, RIPA shall immediately transmit a copy of it to CARA and SARA following which CARA will issue a certificate under Article 23 of the Hague Convention. The Hague Convention requires all States that have signed the Convention to recognize adoptions, which have been certified under   ___   ___ 

Article 23. Through such process, the child might acquire automatic  ___  citizenship/nationality and enjoy more safeguards.

4.1.1.Step VII (Passport and Visa)

PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER 

 ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___ 

[1] •

SAA (RIPA) has to apply in the Regional Passport Office for obtaining an Indian Passport in favour of the child. The concerned Regional Passport Officer may issue the Passport within 10 days. Thereafter the VISA entry permit may be issued by the Consulate/Embassy/High Commission of the concerned country for  the child.

4.1.1.  Step

•

VIII (Child travels to adoptive country)

The adoptive parent/parents will have to come to India and accompany the child  back to their country. They are required to spend at least one week with the child. By doing so, they get a chance to mingle with the baby before making final departure, they get to know more information about the baby’s food habits and attitudes from the child care staff of the adoption agency. Escorting a child by the RIPA is not permitted.

CHAPTER  V 1. STATUTES GOVERNING INTER -STATE ADOPTION IN INDIA Adoption as a legal concept was available only among the members of the Hindu

 ___   ___  community except where custom permits such adoption for any section of the polity.  ___   ___  Only Hindus were allowed to legally adopt the children and the other communities could  ___  only act as legal guardians of the children.  ___   ___   ___  The religion-specific nature of adoption laws was a very retrograde step. It reinforced  ___    practices that were unjust to children and hindered the formation of a Uniform Civil  ___   ___  Code.  ___   ___  Article 44 of the Constitution declares that:  ___   ___  “The State shall endeavor to secure for the citizens a Uniform Civil Code  ___   ___  throughout the territory of India.”  ___   ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[1] Over the years several attempts were made to formulate a general secular law on adoption. The attempts of Parliament in this direction did not bear fruit, all these went in vain on account of a number of reasons. The history of all such efforts does not bring credit to the secular credentials of the Indian polity. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books. The history of attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature.

5.1.Juvenile Justice (Care and Protection of Children) Act, 2006 The Juvenile Justice (Care and Protection of Children) Act, 2006 has been enacted

for the benefit of all the children as well as parents irrespective of their religion, caste and gender. Thus all such adoptable children who falls under the category of children in need of   ___   ___  care and protection shall be processed under this specific legislation by district courts,  ___   ___  city civil courts, family court and other appropriate courts as defined under the State  ___  Juvenile Justice Rules and framed based on the above Act.50This Act focuses on child  ___   ___  legislation and guarantees rights to an adopted child as recognized under international  ___   ___  obligations by all Hague member countries. Thus, it will ensure that in cases of orphan,  ___   ___   ___   ___   ___   ___  49 Sec. 2 (d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 available  ___  at last accessed on 15 Sep 2010 at 9:45 IST.  ___   ___  50 Rule 33 (5) of the Central Rules under the Juvenile Justice (Care & Protection of Children) Act, 2000.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___  49

[2] abandoned and surrendered children which will have to be processed under the Act so that isolated children have adequate safeguards in their placement.51 Sec.41 of   Juvenile Justice Act, 2000 read with Rule 33(1) of Central Rules expresses the

following aspects of adoption: "The primary aim of adoption is to provide a child who can’t be cared for   by his biological parents with a permanent substitute family. The family of a child has the primary responsibility to provide him care and  protection. Orphan, abandoned or surrendered children can be adopted for  their rehabilitation through such mechanism as may be prescribed. Such children may be given in adoption by a Court in keeping with the  provisions of several guidelines regarding adoption issued by the State Govt./Central Adoption Resource Authority and notified by the Central Govt. But the Court should be satisfied with the investigation having carried out which are required for giving such children in adoption.” The Children’s Homes and institutions run by the State Govt. or voluntary organizations for children in need of care and protection who are orphan, abandoned or surrendered, should ensure that these children are declared free for adoption by the Committee (Child Welfare Committee) and such cases shall be referred to the adoption agency of that  ___  district for their placement in adoption The guidelines issued by the CARA and notified  ___ 

  by the Central Govt. U/s 41(3) of the Act, shall apply for all matters relating ___  to  ___   ___   ___   ___  As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression “Committee” means a  ___  Child Welfare Committee constituted U/s 29 of the Act. Sec. 29 of the Juvenile Justice  ___   ___  Act, 2000 provides for the Child Welfare Committee. The Committee has the sole  ___   ___  authority to declare the child in need of care and protection who are orphan, abandoned  ___   ___  or surrendered free for adoption. CWC shall determine legal status of all orphans,  ___   ___  abandoned and surrendered children. Functions and powers of the Committee, procedure  ___   ___  51 Section 41 of the Act, 2000.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

adoption. Now, it is necessary to explain what Child Welfare Committee is?

[3] in relation to the Committee, production of child before committee, procedure for  inquiry, procedure related to orphan and abandoned children and procedure related to surrendered children shall be governed as laid down in the Juvenile Justice Amendment Act 2006 and its Rules.52 The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its subsequent amendment in 2006 is definitely a significant effort of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. It can’t be denied that it is a secular legislation only under which any person can adopt a child of orphan, abandoned and surrendered child irrespective of his/her religion. It is more children oriented unlike other legislations. But it may be mentioned at the same time that some more factors need to be considered specifically by the legislature. Firstly this Act stipulates adoption by any person irrespective of his/her marital status,

 but it does not specify whether the consent of the other spouse is required to be obtained   by the adopting spouse in case adoption by a married couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife  by her husband is an essential criteria for adoption. Secondly , the expression “Court” has not been specifically defined for the purpose of   ___  adoption under this Act as a result of unwarranted mistakes/misconception arises  ___   ___   ___  and Thirdly , the Act is silent about the criteria for age difference between the adoptee  ___   ___   ___  adoptive parents in case they are of opposite sex. This is an essential factor for adoption,  ___  which should be considered seriously for the purpose of preventing child abuse  ___  and  ___  trafficking.  ___   ___   ___   ___   ___   ___  52 Adoption Under juvenile Justice Act, < http://www.legalserviceindia.com/article/l327-Adoption-und ___  er ___  Juvenile-Justice-Act.html> last accessed on 20 October 2010 at 23:44 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

frequently in filing the application for adoption by the adoptive parents.

[5] All these facts are obviously applicable to all religions and therefore, it is necessary to specify them for the interest of the children. We should never forget the thrust of the  National Policy for the Welfare of Children (1974) that “The Nation's children are a supremely important asset. Their nurture and solicitude are our responsibility”.

CHAPTER  VI

1. GUIDELINES PROVIDED BY UN

 ___   ___   ___  Under the Indian Constitution, Article 24 of the Indian Constitution provides for the right  ___   ___  against exploitation of the children below 14 years whereas Article 45 of the Directive  ___  Principles of the State Policy in the Indian Constitution envisages for free  ___  and  ___  compulsory education of children. At the International level, India has ratified  ___  the  ___  convention on the Rights of Child and the Hague Convention on inter- country adoption  ___   ___  of children.  ___  In the current chapter we will discuss about the international guidelines regarding ___  the  ___   ___  inter-state adoptions.  ___   ___   ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[1] 6.1.The Hague Convention and the ratification on inter-country adoption by the Government of India on 6 th June, 2003

Due to the increase in international adoptions, in 1993, the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption was

signed to create an international framework for arranging and formalizing these adoptions and to prevent its abuses.53The Convention relies on cooperation between  participating states to safeguard children in the adoption process.54The states of origin takes the responsibility for ensuring that children are made "adoptable," (i.e. when all the legal requirements are met) while the receiving states take the responsibility for the suitability of the applicants and in the event of only where both agree that the adoption should proceed can it be finalized.55 Adoptions are recognized whether they take place in the state of origin or the receiving state. The Hague Convention had set out a framework for inter-country adoption and provides for its implementation through central authorities. Its main objectives is to improve intercountry adoption along with providing child welfare solutions which is dependent both on an adequate legal framework and adoption professionals who can centre the interests of the child. Since then, modern day adoptions have undergone transitions in response to growing  ___    professionalism, specialization within welfare services, greater diversity in accepted  ___ 

 ___  family units, the move from institutional to family care for children in need, and major   ___ 

reductions in the number of babies surrendered for adoption. Together, all of these have  ___   ___ 

fundamentally changed the way adoption is systematized and the relationships created or   ___   ___  legalized by adoption. These developments have implications for inter-country adoption;  ___   ___   ___   ___  53 Articles 4, 5 and 17 of the Hague Convention,  ___  last accessed on 6 Nov 2010 at 23:44 IST.  ___  54 last accessed on 6 November 2010 at  ___   ___  23:44 IST.  ___   ___  55 Article 15 , 16, 17, 18 and 19 of the Hague Convention, last accessed on 6 Nov 2010 at 23:44 IST.  ___   ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[2]   because they make understandings of good practice amongst adoption agents and legislators, along with the fact that it is widely accepted with equivalent standards and  practices which should apply to all adoptions. 6.2.The Conventions on the Rights of the Child (CRC) Except the United States, almost every sovereign nation, including India, adheres to the CRC.56 The CRC’s objective in this regard is to “recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”57

However unlike the Hague Convention, the CRC specifically

  prefers in-country foster care over inter-country adoption.58 This view has also been supported by the United Nation’s Children Fund (UNICEF).59 The CRC thus seeks to ensure: 1. the use of the “best interests of the child”;60 2. safeguarding of the process in which adults (such as parents) relinquish children for adoption, through a requirement of government approval, use of an “informed consent” standard for relinquishments, and the provision of counselling “as may  be necessary”;61 and  ___  56 Johan D. van der Vyver, “American Exceptionalism: Human Rights, International Criminal Justice, and  ___   National Self-Righteousness,” 50 EMORY L.J., Pg. 775, 778 (2001)  ___   ___  57 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167,  ___  U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448; art. 21(b), 28 I.L.M. at 146.  ___  58 William L. Pierce,  Accreditation of Those Who Arrange Adoptions Under the Hague Convention on ___   ___   Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of   ___  Children, 12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996).  ___   ___  59 UNICEF, UNICEF’S Position on inter-country adoptions available at last accessed on 6 November 2010 at 18:36 IST. ___   ___  60 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___   ___  U.N. Doc. A/44/49 (1989), Art. 3, para. 1  ___  61 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___   ___  U.N. Doc. A/44/49 (1989), Art. 21(a).  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[1] 3. Government safeguards against improper financial gain in inter-country adoption.62

CHAPTER  V

 ___   ___   ___  ONCLUSION  ___   ___  For quite a long time, there has been an increasing demand for a universal law ___  on adoption which would enable any person who wishes to adopt a child can do ___  so  ___   ___  irrespective of his religion, race or caste. As all the major embassies in India follow  ___  rigorous guidelines in dealing with adoption applications in the inter-country adoption  ___   ___  mechanism, the rate of refusal is extremely high without any room for compassion. With  ___   ___   ___   ___  62 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___   ___  U.N. Doc. A/44/49 (1989), Art. 21(d).  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

C

[2] the amount of formalities as demanded by the authorities, the childless non-resident Indian and foreign couples face a lot of hassles and hardships. Even after so many disputes, the revised guidelines of the Juvenile Justice Act have failed to make a clear standing on this issue regarding inter-country adoptions. In the case of   John Clements v.  All Concerned 63 whereby the Andhra Pradesh High Court observed that “Para 2.14 of the guidelines envisages that no application by foreigner   for taking a child in adoption should be entertained directly by any   social child welfare agency in India working in the areas of intercountry adoption or by any institution or centre or Home to which children are committed by the Juvenile Court. However, the very next    paragraph says “the original application along with original  documents as prescribed by the Supreme Court of India would be   forwarded by the foreign enlisted agency to a recognised placement  agency in India”.64

Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the  judgment of the Supreme Court and started directly approaching the adoption agencies in India. They then take the Indian children in adoption with their involvement and active  ___  support of CARA officials, who are simply putting their seal of approval without  ___ 

 ___  inspecting the records of such adoption which is taking place. As a result, trafficking in  ___ 

female children is going on unrestricted in violation of the guidelines given by  ___  the  ___   ___   ___  Consequently, the present loophole of law came to light and thereafter the Government  ___   ___  of Andhra Pradesh issued the Andhra Pradesh Orphanages and other Charitable Homes  ___   ___   ___   ___  63 AP (2003) 2 Hindu Law Reporter 331  ___   ___  64 Inter-country adoptions in India, < http://www.docstoc.com/docs/18657623/INTER-COUNTRY ___   ___  ADOPTION-IN-INDIA> last accessed on 6 November 2010 at 20:43 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

Supreme Court.

[3] (Supervision and Control) Rules.65 It states that “relinquishment” of child by “biological  parents” on family grounds of poverty, number of children, unwanted girl child will not  be permitted. Such children should not be admitted in Homes or “Orphanages” and, it admitted, the license and recognition of Home or Orphanage shall be cancelled or  withdrawn.’66 All adoptions are to be processed by maintaining proper precautions and by compliance of due process of law, both in India and abroad. The core issues lies in the recognition of  adoption orders handed down by the designated courts in India through the amended  provisions of the Juvenile Justice Act of 2006. The agencies in receiving countries need to be conscious of the general living conditions for children in sending countries as well as their culture, laws and practice. Similarly, agencies in sending countries need to be aware of the conditions in the countries where children are being sent. Where strong links are made between agencies and countries, adopters and children are more likely to be able to share their happy experiences with others. This can alleviate the isolation that people adopted outside their country of origin can feel.67 It is a common situation in India that the judges dealing with adoption cases, especially in small towns and cities in India, are not predominantly acquainted with the  ___  interpretation of the inter-country adoption Guidelines as discussed in this article. Hence,  ___ 

 ___  in this regard, a uniform but stringent procedure must be developed which can be easily  ___ 

followed and observed in regard to human spirit. For the entire adoption process, ___  all  ___ 

 procedural hurdles along with legal and official procedures are required to be met for a  ___   ___  smooth adoption process without any abuse. However, separate and sophisticated  ___ 

 ___   ___  adoption and immigration procedures often leave foreign adopting parents in confusion  ___  65 GO Ms No 16, dated 18.04.2001  ___   ___  and  66 In para 11 (VII) of the   Andhra Pradesh Orphanages and other Charitable Homes (Supervision  ___   ___  Control) Rule, 2001  ___   ___  67 J.S. Sjoren, "A Ghost in My Own Country,"  Adoption and Fostering 20, 2 (1996) pp. 32-35; S. Jardine,  ___  "In Whose Interests?" in P. Selman, ed., p. 488  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[4] over differing interpretations as to the prevailing laws of the home country and the adoption country. Thus the adoption process in India is tedious and is involved by all sorts of unnecessary legal and social restrictions. It is an irony that in a country with so many homeless children, there’s a long waiting list of couples waiting to adopt them. Therefore, it is required that the entire adoption process and procedures are revamped so that they conform to a uniform pattern (like an Uniform Civil code as provided under Article 44 of  the Constitution of India) which will make the process more suitable, less burdensome and easier to follow. The paramount importance is the keeping the best interest of the child along with both the letter and spirit of law to be adhered to. 68 A system needs to be created whereby these multiple adoption agencies must be declared free from corruption through bribery and personal connections. Once it becomes apparent that approvals are based on such personal connections or monetary inducements, incentives to follow the rules may disappear. The presence of money can subvert the fundamental principles of inter-country adoption, which favour the maintenance of the child within the birth family, where feasible, and favour in-country adoptive placement over inter-country adoption. There must be some legislation in place to prevent couples from going for adoption even after having one or two biological children of their own, like we have the celebrity Angelina Jolie who is in the process ___  of   ___ 

adopting another child even after having three biological children of her own and three  ___   ___   ___   ___  Since foreign money is available, Indian agencies may be transformed from social  ___   ___  welfare organizations assisting families and orphans to foreign adoption profiteers  ___   ___  scouting the countryside for children. Instead of offering counselling, services, or help  ___   ___  68 last accessed on 6 November 2010 at  ___  18:36 IST.  ___   ___  69 Angelina Jolie and Brad Pitt to adopt child number seven,  ___  last accessed on 6 November 2010 at 18:36 IST.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

adopted ones.69

[5] designed to allow a child to remain within her birth family, agencies will systematically offer money to birth parents to induce relinquishment. Agencies will thus go into the   business of deliberately producing “paper” orphans, who when placed in foreign adoption become an immensely profitable product. Similarly, obstacles to in-country adoption will be systematically constructed when proportionately huge amounts of  money can be made for foreign placements. Agencies will prefer to place a child out-of  country and receive literally thousands of dollars, a year’s salary for a middle class Indian, rather than place the child in-country and receive less than $100.70 This needs to  be avoided. It has been seen that the children are a supreme and chief asset to the nation. The nation’s responsibilities are to nurture them as they are the future citizens of the country. All the Children’s programs should be given a conspicuous part in the national plans for the development of human resources so that children grow up to become robust citizens;  physically fit, mentally alert and morally healthy endowed with the skills and motivation needed by the society.71 The aim is to provide equal opportunities for development to all children during the period of growth, as this will serve larger purposes of reducing inequality and increasing social justice. Those who care about children should act now to preserve and promote international adoption. It represents the best option for existing orphan children. It serves the interests  ___   ___ 

of birth parents who care about the children they cannot raise. It brings new resources  ___   ___  into poor sending countries to help improve conditions for the children left behind. It  ___   ___  represents the way forward to a world in which we recognize children as citizens of a  ___   ___  global community with basic human rights entitlements, a world in which we recognize  ___  adults in that community as having responsibilities to all its members.  ___   ___   ___  70 Conflict Of Laws In Inter - Country Adoptions – An Indian Perspective,  ___   ___  last accessed on 6 November 2010 at  ___  3:21 IST.  ___   ___   ___  71Ibid.  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[7] To conclude this research paper, I would like to bring into notice the conclusions drawn up by the national policy of India for welfare of children in India.The idea is to protect the abandoned and destitute children and help them to find a family as far as possible and to safeguard their interest as visualized in the UN Convention on child rights and Hague Convention on Inter country adoption ratified by India government.72 The ‘Best Interest of the Child’ is the guiding principle behind all adoption laws in India and social awareness programs has helped to change the attitude of society and people towards adoption in India.73 After going through the plethora of thoughts as discussed in this article, we can divide our conclusion into two schools of thoughts i.e. the traditional and the contemporary. Under the traditional school, we have the Uniform Civil Code as provided under Art – 44 of the Indian Constitution along with various other Constitutional and Civil provisions. On the other hand under the Contemporary school, we have the modern Public International Law. The Government of India should come up with a model to facilitate inter-country adoptions in a smoother and hassle freeway. The laws should be made uniform for all religious communities and the government agencies which are involved in adoption procedures should work hand in hand for the best interest of the child and also for the adoptive parents. Selfish interests should be removed. The international community and the laws should also try to pitch in with their efforts in helping the

 ___    parents going for inter-country adoption in a less complicated way. Above all, ___  the  ___  countries of the world should coordinate with each other for the betterment of  ___  the  ___  child who will be the future citizens of their respective countries.  ___   ___   ___   ___   ___   ___   ___   ___   ___  72 National Policy for the Welfare of Children, 1974 available at http://www.indg.in/primary ___  education/policiesandschemes/national_policy_for_children_1974.pdf  last accessed on 12-11-2010  ___  73 A.S. Shenoy, Child Adoption Policies in India- A Review available at last accessed on 12-11- 2010  ___   ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER   ___   ___   ___   ___   ___   ___ 

[8]

BIBLIOGRAPHY Other Authorities

Johan D. van der Vyver, American Exceptionalism: Human Rights, International Criminal Justice, and National Self-Righteousness, 50 EMORY L.J., (2001) William L. Pierce, Accreditation of Those Who Arrange Adoptions Under the Hague Convention on Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of Children, 12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996). Books Reffered

Gupte, A.G., Hindu Law, Premier Publishing Co., Allahabad, 2003. Preet, Gagan, Hindu Adoption-A journey from Past to Present, Paradise Publishers, Jaipur, 2010. Internet source cited

< http://www.adoptionindia.nic.in/about_us.htm> < http://www.adoptionindia.nic.in/adoptionfromindia.htm> < http://www.adoptivefamilies.com/news.php> < http://www.c-c-c.org/> < http://www.docstoc.com/docs/18657623/INTER-COUNTRY-ADOPTION-ININDIA>............................................................................................................................. < http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child%20Adoption %203%2007.doc> < http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-JusticeAct.html>  ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___   ___  .................................................................................................................  ___   ___  PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER 

 ___   ___   ___   ___   ___   ___   ___   ___   ___ 

[9] Journals cited

Farr, Rachel H., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 2010 Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the Indian Adoption Scandals, Seton Hall Law Review, Vol. 35:403

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