By Palak Jain, NLIU Bhopal
“Editor’s Note: International adoption (also referred to as intercountry adoption or transnational adoption) is a type of adoption in which an individual or couple becomes the legal and permanent parent(s) of a child who is a national of a different country. In general, prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country whose nationality the child holds. The laws of countries vary in their willingness to allow international adoptions. Some countries, such as China and South 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. The author, in this paper, attempts to elucidate on the various pressing issues relating to inter country adoptions. Also, she recommends certain changes in the contemporary framework on this point for Indian legal system.”
Origins of Inter–Country Adoptions
“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would, of course, be that of the family of his biological parents. But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents.”[i]
The practice of inter-country adoption came about largely as a humane response to the plight of war orphans and the abandoned children of servicemen in World War II, the Korean War and the Vietnam War.
Today, the main receiving countries are the United States, Canada and the developed countries of Western Europe. Factors such as the decline in fertility associated with stalling marriage, the limited success rate and high cost of infertility treatment and a lack of domestic adoption opportunities have made inter-country adoption an alternative to childless couples in the receiving countries.
However, in states of origin or sending countries, extreme poverty, lack of contraception and society’s attitudes to birth of illegitimate children are three major factors leading to the abandonment of children to institutions.[ii] The concept of “male” child also leads to the abandonment of the girl child which is an unfortunate reality in our own country.
International and regional legislative framework
At global level, it is of course the Convention on the Rights of the Child (the “CRC”) that now constitutes the basic standard-setting text on adoption. Inter-country adoption is specifically regulated by the ‘1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption’ (the “HC”), which has now been ratified by about 90 States.
The approach of international legislators to adoption changed at the end of the 20th century as a result of serious concerns on adoption-related abuses that were being increasingly expressed at that time.
CRC Article 21 includes the obligation to “ensure that the child concerned in inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.”[iii]
The CRC places major emphasis on the importance and role of the parents and family as the child’s primary caregivers, and requires, first and foremost, States to assist them when they have difficulty in fulfilling their responsibilities appropriately. Only when, despite such efforts, the child is “deprived of his or her family environment”, or cannot be allowed to remain therein in light of his or her best interests, does the obligation of the State to “ensure alternative care for the child” becomes operative.[iv] And it is only when, in that case, the State is unable to ensure that the child is “placed in a foster or an adoptive family” or is cared for “in any suitable manner in the child’s country of origin” that inter-country adoption “may be considered”.
The Committee on the Rights of the Child, which is the treaty body monitoring compliance with the CRC, has expressed concerns over violations of inter-country adoption standards in the case of many countries, and strongly recommends all States involved in inter-country adoption that they ratify the Hague Convention as one means of addressing the problems.
The Hague Convention sets out to do two main things, both unequivocally directed towards protecting the child from illicit practices related to inter-country adoption, rather than to promoting the practice as such:
1. “to establish safeguards to ensure that inter-country adoption takes place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law”; and
2. “to establish a system of cooperation among Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children.”[v]
In many ways, it is therefore an implementing treaty for the CRC as regards inter-country adoption. Thus, as a private law instrument, it puts in place guarantees, procedures and mechanisms that facilitate States’ compliance with, in particular, their obligations under the relevant CRC provisions.
The system of cooperation established by the HC revolves around a governmental “Central Authority” in each country to oversee adoptions and to serve as focal point on inter-country adoption issues with its counterparts in other States. The treaty foresees that “adoption bodies”, or agencies, duly accredited by the Central Authority in the receiving country can carry out a range of tasks related to the adoption process, notably regarding assistance to adoptive parents before, during and after the adoption takes place. If also specifically authorized by the Central Authority in the country of origin, the adoption body can also provide such assistance directly in that country.
The HC notably puts in place concrete application of the “subsidiarity principle”, setting out procedures based on the fact that a child may be considered for inter-country adoption only if “possibilities for placement of the child within the State of origin have been given due consideration.”[vi] Other particularly important elements of the HC include: the requirement to determine the fitness of applicants to proceed with an adoption; the implicit prohibition of non-regulated and private adoptions, since all prospective adopters are to undertake the process through the Central Authority or an accredited agency; prohibition of contact between prospective adoptive parents and the child’s parents or other caregiver/s before the child has been pronounced adoptable and valid consents have been obtained; commitment to ensuring free and informed consent for adoption with no inducement of any kind; and the automatic recognition of Hague-compliant adoptions by all States Parties.
The 1993 Convention asserts that authorities must ensure, taking into account the age and degree of maturity of the child, that he or she has been counseled and informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required; that consideration has been given to the child’s wishes and opinions; that the child’s consent to the adoption has been given freely, in the required legal form, and in writing; and that consent has not been induced by payment or compensation of any kind (article 4(d)). Information on the child’s origin, in particular the identity of the parents as well as the medical history, should be preserved, but access by the child to that information is permitted only insofar as it is allowed by the law of the State where it is held (article 30). Personal data gathered or transmitted under the 1993 Convention’s provisions is to be used “only for the purposes for which they were gathered or transmitted,” without prejudice to article 30 (article 31).
Formal monitoring of the operation of the HC is entrusted to a “Special Commission” which comprises of all Contracting States.[vii] It has so far met three times, in 2000, 2005 and most recently in June 2010. The recommendations it makes are advisory in nature.
There are various other regional instruments as well that protect and promote children’s rights, particularly in matters of adoption, these are European Convention on the Exercise of Children’s Rights (ECECR), European Convention on the Adoption of Children 1967 and Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors 1984.
Adoptions from non-Hague countries
Despite the ever-growing number of countries that have ratified it, the majority of inter-country adoptions still take place outside this framework.
Non-Hague countries whose adoption procedures continue to be subject to less stringent conditions may well be more open to allowing growing numbers of their children to be adopted abroad: for example, ICAs from Ethiopia continued to grow substantially throughout the past decade, from a few hundred per year at the start to over 4,000 in 2009.
Non-Hague countries therefore tend to be relatively attractive partners for inter-country adoption. If this turns out to result in ever-increasing pressure on those countries to institute or further develop inter-country adoption to “compensate” for reductions in Hague-compliant counterparts, rather than genuine instigation to ratify the treaty, the true aims of adoption, including inter-country adoption, would once again be severely compromised.
Adoption following disasters
The agreed policy of all major international agencies concerned is now that inter-country adoption should not be envisaged during or in the immediate aftermath of disaster situations, a position reflected by Guidelines adopted by the United Nations in 2009.[viii] A 1994 recommendation related to the HC already established that principle as regards the potential adoption of child refugees.[ix] The main concern underlying this approach is that considerable time is needed to ascertain whether children who may apparently be orphaned or abandoned have in fact simply been separated involuntarily from their parents or other family members as a result of the disaster.
The January 2010 earthquake in Haiti demonstrated the fragility of its application. In addition to the fact that Haiti is not a party to the HC, and that its adoption system was already known to be at unacceptable variance with international standards, three major factors contributed to the problems encountered in this specific case:
- Adoption orders regarding hundreds of children had already been granted at the time of the earthquake, but travel documents for these children had not been issued, and hundreds of other children were at some stage in the adoption process or had simply been preliminarily and unofficially identified as adoptable;
- Receiving countries took differing stances in relation to the status of the children who they were prepared to evacuate and how this was to be done;
- It was not only legally adopted children whose transfer abroad was expedited but also many whose adoption was hurriedly “signed off” administratively, under pressure, including some who had not even been matched with prospective adopters.
Laws of Adoption in India
At the International level, India has ratified the Convention on the Rights of Child and the Hague Convention on Inter-Country Adoption of Children. The principal law relating to adoption in India under the Hindu system is contained in the Hindu Adoptions and Maintenance Act, 1956 (HAMA).
The Juvenile Justice (Care and Protection of Children) Act, 2000 and The Amendment Act, 2006 guarantees rights to an adopted child as recognized under international obligations by all Hague member countries. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:
“2(aa)-‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”.
The amendment emphasized that adoption under this legislation would allow an adopted child to become the “legitimate child of his adoptive parents, with the rights, privileges and responsibilities attached to the relationship. This is a significant move considering till then, adoption by non-Hindus was guided by the Guardian and Wards Act, 1890. Minority castes such as Christians, Muslims or Parsis did not recognize adoption hence the adoptive parents had to remain as guardians to their adopted children as per the Guardian and Wards Act, 1890.
In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007 were enacted, which now stand repealed by a fresh set of Guidelines published by Notification dated 24.6.2011 of the Ministry of Women and Child Development, Government of India under Section 41(3) of the JJ Act. As a matter of fact, by virtue of the provisions of Rule 33(2) it is the Guidelines of 2011 notified under Section 41(3) of the JJ Act which will now govern all matters pertaining to inter-country adoptions virtually conferring on the said Guidelines a statutory flavour and sanction.
Rule 8(5) prescribes priorities for rehabilitation of a child and it is mentioned that preference has to be given for placing a child in in-country adoption and the ratio of in-country adoption to inter-country adoption shall be 80:20 of total adoptions processed annually by a RIPA, excluding special needs children.
Rule 8(6) mentions the order of priority which is to be followed in cases of inter-country adoptions, which is as under:-
(i) Non Resident Indian (NRI)
(ii) Overseas Citizen of India (OCI)
(iii) Persons of Indian Origin (PIO)
(iv) Foreign Nationals
Rule 31 speaks about power of the State Government to constitute a Committee to be known as the Adoption Recommendation Committee (ARC) to scrutinize and issue a Recommendation Certificate for placement of a child in inter-country adoption.
Concept of Inter-Country Adoption in India
The question regarding the validity of inter-country adoption was first debated in the well-known case of In Re Rasiklal Chhaganlal Mehta[x] whereby the Court held that inter-country adoptions under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid under the laws of both the countries. The adoptive parents must fulfill the requirement of law of adoptions in their country and must have the requisite permission to adopt from the appropriate authority thereby ensuring that the child would not suffer in immigration and obtaining nationality in the adoptive parents’ country.
The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v. Union of India, had framed the guidelines governing inter-country adoptions for the benefit of the Government of India. A regulatory body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was recommended and accordingly set up by the Government of India in the year 1989.
Since then, the agency has been playing a pivotal role, laying down norms both substantive and procedural, in the matter of inter as well as in country adoptions. The said norms have received statutory recognition on being notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are today in force throughout the country, having also been adopted and notified by several states under the Rules framed by the states in exercise of the Rule making power under Section 68 of the JJ Act, 2000.
In the case of Mr. Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children[xi] 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 mala fide and that CARA should ensure more stricter guidelines in this regard.
One of the most significant issues in inter-country adoptions is finding prospective adoptive parents, preferably of Indian origin. The Supreme Court of India, in the Karnataka State Council for Child Welfare v. Society of Sisters of Charity St Gerosa Convent, had held that the rationale behind finding Indian parents or parents of Indian origin is to ensure the well-being of the children and that they grow up in Indian surroundings so that they can retain their culture and heritage. The best interest of the children is the main and prime consideration.
Bombay High Court in a recent judgment, Varsha Sanjay Shinde & Anr. v. Society of Friends of the Sassoon Hospital and others[xii], held that once a child is approved by an Oversees couple after the due procedure is followed, the same child cannot be shown to other Indian parents and that such Indian Parents then cannot claim any right or priority to get the child merely because they are Indian Parents and preference should be given to them over Overseas Indians and Foreign Couples. Although the main issues was decided the Court kept the petition pending in order to see the compliance of directions given by the Court for giving the child to the Overseas Indian Couple and to ensure that the Indian Parents (Petitioners) also get a child expeditiously.
Court further laid down following guidelines for in-country and inter-country adoptions to be read and applied in consonance with Guidelines of 2011:
(i) All the concerned Agencies viz RIPA, Specialized Adoption Agencies, SARA, ARC, AFAA to scrupulously follow the Guidelines which have been laid down in 2011
(ii) Though there is no specific number mentioned in the Guidelines as to the number of Indian parents to whom the child should be shown, within a period of 3/4 weeks, the child should be shown to as many Indian parents as possible and, secondly, at a time, the child should be shown only to one parent and not multiple number of parents as has been done in the present case.
(iii) Only if the child is not accepted by Indian parents and the Adoption Agencies on account of their experience come to conclusion that the child is not likely to be taken in adoption by Indian parents then, in that case, it should be shown to foreign parents.
(iv) When the child is shown to the foreign parents, it should be shown in the list of priorities which are mentioned in the said Guidelines.
(vi) ARC and SARA should work not in conflict but in coordination with CARA, it being the Centralized Nodal Agency.
Another latest judgment[xiii] is that of Delhi High Court where the issue involved was whether adoptions made directly by biological parents of a child without intervention of CARA are valid in eyes of law. It was the argument of counsels of petitioners that the intercession of CARA was mandated only in cases of those children who are orphaned or abandoned by their biological parents. It was the stand of CARA that the legislative mandate for the same is found in the amendment made in 2006 to the Juvenile Justice (Care and Protection of Children) Act, 2000 by introducing Sub-Section (2) in Section 41 of the JJ Act. It is thus contended that the rehabilitative measures for children in need of care and protection through means of adoption applies, not only to orphaned and abandoned children, but also to, surrendered children. In other words, according to the stand taken by CARA, the term “surrendered children” would include “children which are given in adoption by their biological parents directly to the adoptive parents”.
Court said that even in absence of any guidelines court is not disempowered to direct the State to carry out an investigation in the interest of child both in country of origin and receiving country through a recognized agency. Court, however, left the matter to the wisdom of a larger bench in order to answer the following questions that came up in the petition:
(i) Whether the term “surrendered child” will include those children who are directly taken in adoption from their biological parents without the intercession of any specialized agency or child welfare committee?
(ii) Whether, in case of direct adoption, the 2011 Guidelines and the provisions of Section 41(3) and (4) of the JJ Act are applicable?
(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to what extent the 2011 Guidelines would apply to direct adoptions?
(iv) Can the court direct State to discharge its duty in its capacity as parens patriae to carry out an investigation so as to safeguard the interest and/or rights of the child conferred on him under Article 21 of the Constitution of India?
Central Adoption Resource Authority (CARA)
It is an Autonomous Body under the Ministry of Women and Child Development, Government of India and is responsible for both in-country and inter-country adoptions in India. 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 recognized or licensed by the government of the country in which the foreigner is resident. The agency should be recognized by CARA.
The CARA guidelines depict in the beginning that it encourages in country adoption rather than inter-country adoption and only where the child finds no suitable home in the country, trans-national adoption would be considered.
The guidelines also provide that all Child Care Institutions (CCI) must be registered under the provisions laid down under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 as per Section-34 (3). The State Government shall recognize suitable CCI’s as specialized adoption agencies under Section 41(4) of the Juvenile Justice Amendment Act, 2006. The specialized adoption agencies can turn into agencies for inter-country adoption only when they have proper infrastructure for normal adoptable children as well as children with special needs, and have quality child care services. In addition to these, they must comply with all the requirements of CARA.
Who are adoptable for inter-country adoption?
As per CARA guidelines and the Juvenile Justice (Care and Protection) Amendment Act 2006, only three types of children are recognized as adoptable. These include children who are orphans and are already under the care of some specialized adoption agency, abandoned and those who are surrendered. In case of an abandoned child below two years, such declaration shall be done within a period of sixty days from the time the child is found. For an abandoned child above two years of age, such a declaration shall be done within the period of four months. In case of a surrendered child, two months reconsideration time shall be given to the biological parent or parents after surrender before declaring the child legally free for adoption.
Problems subsisting in inter-country adoptions
Child trafficking in the guise of transnational adoption
The biggest threat to the child in inter-country adoption is becoming a victim of child trafficking racket. After the domestic procedure for adoption by the foreign adopting parents is over, it becomes more a question of international law and international treaties to look after the well being of the child. Moreover, the lack of awareness regarding the legal procedures for inter-country adoption has given rise to many fake adoption agencies. Children are sold abroad by providing false information about them, falsifying documents, and making use of loopholes in the adoption guidelines prescribed by the Supreme Court.
Post adoption negligence
When the child is given for inter-country adoption, post adoption follow-ups become increasingly difficult. Even though CARA guidelines outline the role of the Indian diplomatic missions, foreign accredited agencies and professional social workers in protecting a child from post adoption maltreatment, it has virtually not helped anyone.
Post adoption domestic succession
Once the testator dies after bequeathing the property in the name of the child who had been given in adoption, the identity of the child has to be proved. In cases where there is a challenge to the succession by other survivors, the procedure becomes even tougher. The country of residence will take the matter as per the laws of domicile and if such succession becomes legally void due to any unfortunate mistake, the adopted child would never be able to claim legal rights of the property and thereby has to suffer great financial, physical and emotional agony. Unfortunately India has not entered into any agreement or treaties to solve such succession matters. The British law still rules the courts in such cases. Every adopted child develops a strong inclination to know his/ her roots at some point of time. Such legal turmoil over successions from the biological family may even leave the adoptee in great frustration.
Post adoption identity crisis
Juvenile Justice Care and Protection(Amended) Act), 2006 specifies that a child can be adopted by any individual, irrespective of his/her marital status, by parents who wish to adopt a child of same sex irrespective of the number of living biological sons or daughters, or by couples who have no children of their own. It has made adoption a simpler and universal law than the traditional laws. The law is still tricky, however, in case of inter-country adoptions as prospective foreign parents still have to first take the role of guardians and take the child to their country. The process has to be finished there as neither the new law nor any existing law specifically mentions a procedure in cases of overseas adoption. Once the child becomes ready for overseas adoption, the international law needs to recognize Indian adoption procedure and the child is adopted according to the laws of the country of adoptive parents’ residence. The child becomes the ultimate sufferer unless the “guardians” turn real parents as per the law of his new residence.
Guidelines lack force of law
CARA guidelines most often lack the force of law. Hence the parties never really remain obliged to follow the guidelines or even the Indian law in case the habitual resident belongs to a country which is not a member or has relinquished its membership from the convention. The guidelines fail to ensure the health, safety and adjustment of the child after he/she has left India. It should be noted that as the numbers of adoptions increase, the number of regulations followed are lesser. The guidelines should have put a maximum number of adoption procedures a month, by each adoption agency so that social workers, the authorities, and voluntary coordination committees would not be overburdened. Lack of regular checks at the adoption agencies and the manner in which they operate can also lead to many problems.
Since the CARA guidelines mention nothing about any penal actions against unrecognized adoption agencies, child trafficking in the name of inter-country adoption has gotten an easy way out.
Inter-country adoption has to be dealt with great care as it often opens up floodgates of child trafficking, child exploitation and sexual harassment of children. The suggestions are:
- CARA guidelines should have two chapters separately dealing with in country and inter-country adoptions.
- Penal offences must be included in case of any sort of failure by the agencies to comply with the rules and regulations.
- Licensing procedure for the adoption agencies should be made stricter.
- Awareness programmes should be arranged for the poor, needy women and parents in case they want to give their child up for adoption, to go through the correct legal procedures rather than becoming the victims of touts.
Specific recommendations in relation to inter-country adoption:
- prevent any risk of children becoming stateless in the inter-country adoption process, inter alia by ensuring that they will receive the nationality of their adoptive parents;
- adopt a particularly vigilant approach during and following emergency situations to prevent potential abuses and violations of international obligations.
- Non-Hague compliant countries should be encouraged to ratify the treaty.
- Professional counseling must be done by a team consisting of recognized child psychologists, professional social workers and legal practitioners who are familiar with the international law of the receiving country.
- The immigration procedure for the adopted child must be done carefully in order to prevent child trafficking.
- Before the adoption case is opened it should be mandatory to check the bilateral relationship of the receiving country with India.
International agreements have been developed to address the changing face of adoption. The standards and safeguards they establish are essentially directed towards ensuring four things:
- that the adoptability of children is always determined in the right way.
- that intercountry adoption is considered and carried out for the right reasons.
- that each child is adopted by the right person(s).
- that the adoption is carried out in the right manner.
Inter-country or transnational adoption may become the best option for orphan children to start a fresh life in a new country. But when the country of domicile for these children does not have any proper law to show them their destiny, violation of their rights is very much definite to take place. The country desperately needs better laws and guideline for inter-country adoption. The authorities need to ensure thorough checks of every adoption agency to ensure that they are protecting the child’s rights as has been provided in the constitution and the Juvenile Justice Care and Protection Act, 2006. Every child has a right to life, home and education. It is essential that the authorities not only make laws to provide safer transnational adoption to the children but also to ensure safety of the child even abroad.
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. Hence, in this regard, a uniform but stringent procedure must be developed which can be easily followed and observed keeping in regard the human spirit. As has been seen, Courts, though slowly and steadily, are approaching every possible dimension of this issue and are laying down norms for eliminating any legal or emotional havoc for the child or his biological and adoptive parents.
Unless agencies systematically refuse to operate in the framework of systems that are in clear violation of international norms, they may find themselves complicit in abuses. If prospective adopters do not receive accurate and dispassionate information on inter-country adoption needs, they will not be able to adjust their plans and expectations accordingly. Thus, each actor in the process carries a particular responsibility, and all need to, and must, seek cooperation with one another to maximize the impact of their efforts.
Formatted on 14th March 2019.
[i] AIR 1984 SC 469
[ii] D. Howe, P. Sawbridge, and D. Hinings, “Half a Million Women”, New York: Penguin, 1992.
[iii] Convention on the Rights of the Child, Article 21(c).
[iv] Convention on the Rights of the Child, Article 20.
[v] Hague Convention, Preamble and Article 1.
[vi] Hague Convention, Article 4.
[vii] Special Commission on the Practical Operation of the Hague Convention of 29 May 1993.
[viii] Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142.
[ix] Recommendation concerning the application to refugee children and other internationally displaced children of the Hague Convention of 29 May 1993, adopted 21 October 1994.
[x] AIR 1982 Guj. 193
[xi] 162(2009) DLT 605
[xii] Writ Petition no. 9227 of 2013 Decided on 18th October, 2013
[xiii] Dr. Abha Aggarwal v. CARA W.P. NO. 2701 of 2012 & Promila Ann Massey v. CARA; W.P. No. 3279 of 2012 (the two petitions were clubbed togetherand disposed as one) decided on 24 Jan 2013