Inter-country Adoption:
A Brief Background and Case Study

Inter-country adoption (ICA) is a practice that has gained popularity over the years, and there is every reason to believe this trend will continue. For couples (or individuals) whose country of residence has few healthy babies available for adoption, going outside the country for a child is a desirable option. It is also desirable from the perspective of the child, who usually comes from a country with more available children than potential adoptive parents. Right away, these seem to be two very compelling reasons to support the idea of inter-country adoption, and work toward its best model.
The purpose of this paper is to give an overview of inter-country adoption using India as a case study. The paper will give a brief background of ICA and the main problems it both addresses and raises, then look at the case of India in particular, and, finally, provide some directions for policy and further research.
Background on ICA
ICA began in earnest as a response by North American countries to the post-WWII devastation. At that point, it was a humanitarian reaction to the needs of the newly-orphaned children in Europe. Since that time, ICA has shifted its focus to become a means for individuals in the developed world to have children. In most Western nations, the number of healthy infants available for adoption has been steadily decreasing, due to a number of social and economic factors including widespread use of birth control, an increased number of abortions, and more options available to unwed mothers who want to keep their children. Because of this, ICA is on an upward trend.
Who Benefits?
This paper approaches ICA with the belief that it is a beneficial and essential practice for serving the needs of the world today, given the unequal geographic distribution of orphaned children and adoptive homes. But this is not a universally held belief. To better understand ICA, it is important to look at its criticisms in order to point out areas that good policy around ICA must address.
Child Trafficking
Critics of ICA say it promotes the illegal buying and selling of children. The claim is that the high demand in the developed world for children in the developing world creates a “black market in kidnapped babies.”1 While at first ICA was a type of humanitarian response to the needs of the child, now the focus has shifted to potential parents unable to have children. In other words, the right to be a parent – not the right of a child to have a family – is the primary motivating force behind ICA in “receiving” countries. While there is no necessary connection between this shift and a decrease in benefits for the child, it does, unfortunately, have the capability of leading to practices that promote the good of the potential parents to the detriment of the adopted child – and his biological parents. The accusation that ICA promotes child trafficking seems to have this type of argument in mind. Catering to the desire of Western couples to have children may encourage use of hurried and illegal means to get them.
1 Exploitation
In a certain, crude, sense, the developing world has become a provider of healthy infants for developed nations. For developing countries feeling at the economic mercy of the developed world, ICA may seem like being taken advantage of – this time for their children – yet further.
The line between receiving and sending countries is the same line that is between rich and poor, developed and developing. By “exporting” children – clearly an unappealing designation of ICA
– some feel that the developing world is allowing itself to be stripped of yet another natural resource. So the question to be asked is: would this cost to the developing countries – if indeed it is a cost – be made up for by the benefit to the individual children?
Culture
Another claim that ICA is focused on parents in the developed world is based on the fact that placing a child in a foreign country strips her of her culture and heritage. Despite any attempts by the adoptive parents to incorporate their child’s native culture into the home, removing a child from his country of origin makes inaccessible to him an integral part of who he is. The international community acknowledges that cultural identity is very important, and international standards always favor placing adoptable children – whenever possible – within those children’s home countries for that reason. But the question then becomes: when a home in the child’s country of origin is impossible, is it more valuable to have culture, or a family? The international community – as represented by UN decisions – certainly seems to favor the latter.
International Standards
Despite its critics, inter-county adoption has been accepted by the international community as an effective option for children who otherwise would not have homes in their countries of origin. In 1989, the United Nations drafted the Convention on the Rights of Child, in which it laid out several principles according to which children have a right to be treated.
Article 21 states that, in regard to adoption, “the best interests of the child shall be the paramount consideration.” Included in Article 21 is the recognition of ICA as an appropriate means, under certain circumstances, of reaching this goal. It says that states shall
“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.”2
In 1993 the specifications of ICA – and its acceptance by the international community – became more explicit with the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. This convention demonstrated the international community’s acknowledgment of ICA as a necessary result of a commitment to the rights of the child. The Hague Convention had three goals:
(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
(b) to establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children; (c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention
2 “Convention on the Rights of the Child 1989.” International Documents on Children: Second Edition. Ed.
Geraldine Van Bueren. The Hague: Martinus Nijhoff Publishers, 1998. p.13.
As parts (a) and (b) above show, the Hague Convention recognized and explicitly addressed the aforementioned concerns of the child’s (as opposed to the parent’s) best interest, as well as child trafficking. Clearly the belief was that these problems are not inherent to ICA, but rather unfortunate consequences that must be purposefully combated.
66 countries were present at the drafting of the Convention, including typical “sending” countries such as Argentina, Chile, China, Romania, Brazil, and Korea, and typical “receiving” countries such as the United States, Western European countries, and Israel

Conflict Of Laws In Inter - Country Adoptions – An Indian Perspective

INTRODUCTION India
“When you honour the birth family, you honour the child. When you don't honour the birth family, the child will believe that something is inherently wrong with him/her.”
By Sherrie Eldridge1
Adoption - What is it?
It is the statutory process of terminating a child’s legal rights and duties towards the natural parents and substituting similar rights and duties over adoptive parents.2 It also means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all rights, privileges and responsibilities that are attached to the relationship.3
Thus adoption involves the legal, permanent transfer of a child from the birth parent or parents to new caregivers. In inter-country adoption, this transfer occurs across an international border. The child usually moves to a new country, to parents of different race, culture and language from the birth family, and acquires a new nationality. The child's new identity replaces his or her original one. Adoption, therefore, it is appropriate to say involves losses as well as gains4.
This research article will try to examine the adoption laws involved in inter-country adoptions and how they are in conflict with the laws and procedures of the original parent country from the adoptive country within the Indian jurisdiction. It will also debate upon the issue of whether and how international legal instruments and domestic measures can combine to ensure proper standards are applied to such adoptions.5 This paper will also try examining the regulatory standards established for especially the inter-country private adoptions to minimize the crimes against children living in deprived conditions, like abduction and trafficking.
Adoption should only be done when necessary and for the benefit of the child and his wellbeing and by compromising on neither him nor his parents human rights. It is known to make psychological demands on the parties beyond those of natural parenthood. It will recommend that research knowledge and experience should be applied so that the arrangements made provide the best chance for stable, long-term relationships for children who have been adopted.6
The article will also inspect the relevant legal provisions which are to be fulfilled with by the foreigners and persons of Indian origin who are residing abroad permanently, and who seeks to adopt children from India along with the issue of surrogacy arrangements. At present, there is no exclusive general law on adoption of children by non- Hindus and foreigners in India. Adoption is permitted only by selected statutes among Hindus, and by custom among some other communities.
Origins of Inter – Country Adoptions
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. It used to and still involves the transfer of more than 30,000 children each year from over 50 countries.7
Only under exceptional circumstances, children move from poor countries to wealthy ones.8 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. Presently, inter-country adoption has become easier due to readily available information on the Internet.
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.9 The concept of “male” child also leads to the abandonment of the girl child which is an unfortunate reality in our own country. Similar thing was followed in China, regarding the "one-child policy" and the cultural preference for boys which has led to the abandonment of large numbers of girls to under-funded and inadequate institutions.10 As a result, many organizations have sprung up to facilitate inter-country adoption. For many of these agencies, acting as an intermediary has become a business.
Inter-country adoption is a subject of international law in a number of senses. First, because inter-country adoption involves the immigration of persons from one nation to another and it raises core national sovereignty issues with international law significance.11 Second, inter-country adoption as a humanitarian matter implicates human rights issues, which have become a significant focus of international law.
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 Metha12 whereby the Court held that inter-country adoptions under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 195613 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 Indian Council of Social Welfare has pointed out that inter-countrv adoption involves 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. It 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 authorized personal and social authorities. The end result of the process will be that adoption would not be mere legalistic arrangement but the creation of an environment in which the child can grow same nationality as well as one the habitual residence of the in health and happiness, integrated in the society.14
In cases of inter-country adoptions, it becomes essential that legal requirements of both the countries are thoroughly satisfied since adoption laws differ from country to country. Besides, it would be necessary to ascertain whether the adoptive parents are able to provide the child with a satisfactory home. This would mean investigating into the economic status and social conditions of the family, questions of health and psychological preparedness for adoption, the child's acceptance within the community, etc. A qualified social investigation must be provided on the basis of which decision regarding eligibility can be made.
The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey v Union of India15, had framed the guidelines governing inter-country adoptions 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 the welfare of adopted children.
Furthermore, the apex court in the supplemental judgment of Laxmi Kant Pandey v Union of India16 had pointed out in the same case 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.
Justice Bhagwati while giving its second supplemental judgment in the Laxmi Kant Pandey’s v Union of India17, clarified by observing 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 sufficient.”18
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 destitute, half clad, half-hungry and suffering from malnutrition and illness. 19 Thus foreign adoption was held to be consistent with India’s National Policy on Children.
The Court also pointed out that such conditions would “prevent the realisation of a child’s full human potential making the child]more likely to grow up uneducated, unskilled and unproductive,” with a life “blighted by malnutrition, lack of health care and disease and illness caused by starvation, impure water and poor sanitation.”20
Recently, the Delhi Court in Maria Chaya Schupp v The Director General of Police and Ors.21 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 v State through Indian Council for Child Welfare and Welfare Home for Children22 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 should ensure more stricter guidelines in this regard.
However, the apex court in Anokha v State of Rajasthan23 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 under section 724 of the Guardian and Wards Act 1890 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.25
However, the Supreme Court in St. Theresa’s Tender Loving Care Home and others v States of Andhra Pradesh26, 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.”27
Now, the Central Adoption Resource Authority (CARA) 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. Its objectives are to find an affectionate and caring family for every orphan/destitute/surrendered child in the country. It firstly ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India. It 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.28
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.29
Furthermore, Prof. M.N. Das observes 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 would be no proper and satisfactory home study report on which the court can rely. Thirdly, in such a case, where the application of a foreigner for taking a child in 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 and affection with moral and material security assured to it.”30
PREFERENCE TO PARENTS OF INDIAN ORIGIN
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 Convent31, 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.
The Gujarat High Court in Jayantilal v Asha32 gave a liberal judgment by upholding the validity of guardianship orders in favour of two Norwegian couples who were appointed as guardians of Hindu children. The court observed that -
“If the biological parents have died rendering the child an orphan then the society owes a duty to the child that at least a semblance of comfort and care which the biological parents could have provided will be provided to the child, if some people from howsoever distant a corner of this planet, come forth to do so. In such a case a petty contention like the change of religion or culture of the child can hardly stand in the way of the court in sanctioning inter-country adoption. Unfounded and imaginary apprehensions also are of little consequence and once the court is assured that there is no possibility of the child being abused which assurance can flow from the independent agencies which are ordained for the purpose then nothing can and need prevent the court from sanctioning an inter-country adoption.”33
In continuance on the same issue, the Allahabad High Court in Jagdish Chander Gupta v Dr Ku Vimla Gupta34 observed that, under section 9 of the Guardian and Wards Act 189035, the application for guardianship of a minor shall be made to the district court having jurisdiction in the place where the minor ordinarily resides. Thus the role of the court was held to be a supervisory one in regarding the welfare of the minor as the primary consideration when it observed that -
“It should not be lost sight of and must be emphasised that in custody cases, a child has not to be treated as a chattel in which its parents have a proprietary interest. It is a human being to whom the parents owe serious obligations. One’s own self-interest sometimes clouds his perception of what is the best for those for whom he or she is responsible. It takes a very high degree of selflessness and maturity – which is for most of the people probably unattainable degree for a parent/proposed guardian to acknowledge that it might be better for the child to be brought up by someone else.”36
Legal Provisions in India -
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. At national level, India has prepared a National Policy for children in 1974 under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children.
International Conventions –
The Hague Convention and the ratification on inter-country adoption by the Government of India on 6th 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.37 The Convention relies on cooperation between participating states to safeguard children in the adoption process.38 The 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.39 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 inter-country 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, 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.40
The Conventions on the Rights of the Child (CRC) –
Except the United States, almost every sovereign nation, including India, adheres to the CRC.41 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.”42 However unlike the Hague Convention, the CRC specifically prefers in-country foster care over inter-country adoption.43 This view has also been supported by the United Nation’s Children Fund (UNICEF).44
The CRC thus seeks to ensure: the use of the “best interests of the child”45; 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 necessary46”; and
Government safeguards against improper financial gain in inter-country adoption.47
Present LAWS OF ADOPTION IN INDIA
The principal law relating to adoption in India under the Hindu system is contained in the Hindu Adoptions and Maintenance Act, 1956 (HAMA).
Requisites for a valid adoption -
Section 6 of the HAMA specifies four conditions for a valid adoption, namely:
The person adopting has the capacity, and also the right, to take in adoption;
The person giving the child in adoption has the capacity to do so;
The person adopted is capable of being taken in adoption.
However, adoption under Sec-6(iv) requires certain compliances with the provisions of Sections 7–11. Section 7 deals with the capacity of a male Hindu to take in adoption; and Section 8 with the capacity of a female Hindu to take in adoption. Section 9 qualifies persons capable of giving children in adoption; Section 10 categorises those persons who may be adopted; and Section 11 enumerates other conditions for a valid adoption. Thereafter, Section 12 elaborates the effects of a valid adoption.
Other Conditions for a valid adoption
Section 11 of the HAMA (i), (ii), (v) and (vi) lays down important conditions for adoption -
(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(v) The same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption.
Thus in the case of Kewal Singh v Bakshish Singh48, it was held that when one child is given to the family of other so that the child is brought up, this giving of the child does not constitute adoption. There must be an intention to give and to take the child in adoption. Similarly, in Bakshish Singh v Kewal Singh49, it was held that the absence of parents at the time of adoption ceremony and not proving the giving and taking the child in adoption, adoption was held invalid.
Effects of a valid adoption
Section 1250 deals with the legal effects of an adoption made in accordance with the provisions of the HAMA 1956 and meets the requirements of cl (ix) of Para 310 of HC 39551 of the current British Immigration Rules governing adoption which signifies the child ‘has lost or broken his ties with his family of origin’.52
It was held by the Supreme Court of India in Smt Sitabai v Ramchandra53 -
‘The true effect and interpretation of Sec 11 and 12 of Act No 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family.’
A similar view was held by the Supreme Court of India in Chandan Bilasini v Aftabuddin Khan54
“Section 12 of the Hindu Adoptions and Maintenance Act clearly provides that an adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”
At the end, section 15 of the HAMA 1956 highlights the inevitability of the validly performed adoption by asserting that it cannot be cancelled or renounced.55 Therefore, under Indian law, once a legitimate adoption has been obtained, in accordance with the legal procedures, the level for interference will be minimal, except in certain exceptional circumstances.
Challenging a registered adoption -
Now, Section 16 of the HAMA says that - Presumption as to registered documents relating to adoption.
Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.’
One of the most important rule concerning adoption by Hindus, was held by the Supreme Court of India in Jai Singh v Shakuntala56and by the Punjab and Haryana High Court in Modan Singh v Sham Kaur57 that, though a document registering an adoption should be treated as final proof of adoption, it could still be challenged in a court of law if evidence to the contrary was put forward.
Justices Umesh C Banerjee and Brijesh Kumar58 while giving its judgement had made a careful interpretation of Sec-16 by observing that –
“The section thus envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. Mandate of the statute is rather definite since the legislature has used “shall” instead of any other word of lesser significance. Incidentally, however, the inclusion of the words “unless and until it is disproved” appearing at the end of the statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession - thus onus of proof is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words “unless and until it is disproved” shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive depicting therein that the presumption cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above.”
Adoption - does it leads to Child trafficking?
Inter-country adoption has forced the public awareness in two conflicting ways. On the one hand, inter-country adoption is presented as a heart-warming act of good will that benefits both child and adoptive family.59 The child is characterized as a bereft orphan doomed to a dismal future within a poor country.60 All that the child needs is a comfortable home and a caring family to live with. However, contrary to the positive side of adoption are the numerous scandals and horror stories concerning inter-country adoption in India. Adoption is portrayed as child trafficking or baby selling.61 The gang lords buy, steal, or kidnap children from poor families in developing nations like India for sale to adoptive families in rich nations or for turning them into bonded child labourers in the Middle East.62
Section 361 of the Indian Penal Code provides for law against kidnapping and abduction.63 In India, there have been resistance to children being given for inter-country adoptions. In Andhra Pradesh, for e.g. there has been development within movements seeking to keep particular children within India, which have been engaged in legal and political conflict with prospective adoptive parents seeking to bring children to the United States, demonstrates the political and social hazards implicit in inter-country adoption.64
The Indian Supreme Court repeatedly expressed concerns about the possibility that foreign adoption could become a form of “profiteering and trafficking in children.”65 While adoption involves the loss of the child’s original family, inter-country adoption often involves an additional loss of the child’s birth culture and language.66
Intentional child-buying under the guise of adoption is inherent in this form of adoption. Unintentional child buying is another danger, as money “given” to birth families as gifts or voluntary donations, which may appear gratuitous and kind to foreigners, could be interpreted as inducements to consent to adoption. Once again, the extreme economic imbalance between many Indian birth families and wealthy foreign families creates a severe danger of exploitation, in this instance in the form of intentional or unintentional child buying.67
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND THE AMENDMENT 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 protection68 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.69 This 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, abandoned and surrendered children which will have to be processed under the Act so that isolated children have adequate safeguards in their placement.70
In an editorial article,71 it was observed that in a bid to put adoptive parents of all beliefs and religions on the same platform, there have been amendments and guidelines issued under the Juvenile Justice Act. An important amendment to the Act 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 now, adoption by non-Hindus has been guided by the Guardian and Wards Act, 1890, which gives them the status of ‘guardians’, a relationship that becomes void when the child entered adulthood. Conversely, it doesn’t give the ‘ward’ legal rights due to a biological child.”72
Consequently, non-Hindu parents could now claim full parenthood legally as earlier the relationship between adoptive parents and the adopted child was that of ‘guardian’ and ‘ward’, respectively under the Guardians and Wards Act, 1890.73 Prior to the enactment of the Juvenile Justice Act 2006, only Hindu couples adopting children could claim to be parents. However, Non-Hindus were just guardians to their adopted children. The child too was only a ward and did not have the legal status of an adopted child. As a result, the children were being denied rights to inherited property created regular problems for parents at the time of school admissions and related matters. Eventually, in many cases, children trafficked abroad on the pretext of adoption never really got citizenship rights and ended up as domestic help or even beggars. The new guidelines are an improvement over the existing ones because the child who goes abroad hereafter as an adopted child will enter the recipient nation as its citizen.74
In another article, the Juvenile Justice Act was severely criticized whereby it was held that by the activists that the provisions for adoption under the impugned Act were unambiguous and unclear in meaning.75 Child-rights activist Sangeeta Punalekar, voiced her opinion by saying that there was a lot of confusion on the issue of adoption under the Juvenile Justice Act, 2000. She concluded that adoption was provided under the said Act in itself to aid the rehabilitation and social integration of orphaned, abandoned or neglected children.76 “But even then it met with hardly any response,’’ Punalekar said.77
She further recommends that as per law, instead of getting the approval of higher courts like the district courts and the high courts in cases of inter-country adoption, such adoption could be done locally by child welfare committees and juvenile justice boards. However, she and other activists criticize the facts that there neither seem to be lack of any proper rules or infrastructure in place nor is there transparency on related issues, like the applicability of the law for the Muslims.78 Section 2(aa) of the Juvenile Justice Amendment Act, 2006 defines ‘adoption’ applicable for all citizens. However, it fails to override the provisions of other personal laws like “The Muslim personal law does not permit adoption and the government can’t try and plug loopholes in one Act by amending another.”79
THE LAW OF SURROGACY IN INDIA IN REGARD TO THE LEGAL PARENTAGE OF CHILDREN
As per survey reports, India is rapidly becoming a medical tourism hub. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA.80 India is emerging as a most sought after destination for surrogate mothers as can be seen due to the increase in childless NRI and foreign couples who are desperate to have a child of their own rushing to India to rent a womb. In Anand alone, in Gujarat, it has seen as many as 14 commercial in vitro fertilization surrogacy cases in the last two years which is a disturbing trend.81
The concept of surrogacy has been incorporated in India, only recently. But, at present, there are no laws on legalizing of parenthood resulting from children born out of surrogacy arrangements. The only legislation which we have is the Registration of the Births and Deaths Act, 1969 which does not contain any provision regarding parentage as a result of a surrogacy arrangement. At the time of enacting this legislation, the concept of surrogacy was not prevalent in the India and hence it has not been amended or modified with regard to the surrogacy issue.
A surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman.82 It also means the process of carrying and delivering a child for another person.83
The most recent issue regarding adoption of a child from a surrogate mother came up in the news when a the surrogate twin babies of a German couple of an Indian mother were declared to have virtually become "stateless citizens" with India refusing them citizenship and Germany not ready to recognise surrogacy as a means of parenthood.
Finding the surrogate babies caught in no man's territory on legal grounds for no fault of theirs, a Bench comprising Justices G S Singhvi and A K Ganguly vented its anguish, "Should we treat children born out of surrogacy as commodities”?84
The bench held –
“Statelessness cannot be clamped upon the children. There must be some mechanism by which they get citizenship of some country. Children should be allowed to leave the country after an assurance of their citizenship has been given.” A woman’s womb is not a piece of real estate to be rented out. Going through such a commercial pregnancy, a woman undergoes considerable physical and psychological trauma.85
Presently, the Parliament has come up with certain guidelines called as the Artificial Reproductive Technologies (ART)86 for the careful practice of ART, accreditation of infertility clinics and supervision of their performance in India except for maintaining the Registry of RT clinics in India.
These Guidelines only provide a foundation for the proposed legislation relating to this field of law and also asserts that the surrogate mother is under any circumstances cannot be considered to be the legal mother.87
Para 3.5.4 of the ART Guidelines says that a surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. While registering she must mention that she is a surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc. She must not use/register in the name of the person for whom she is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death (in whose names will the hospital certify this death?). The birth certificate shall be in the name of the genetic parents. The clinic, however, must also provide a certificate to the genetic parents giving the name and address of the surrogate mother. All the expenses of the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary compensation from the couple for agreeing to act as a surrogate; the exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother. An oocyte donor can act as a surrogate mother.
However, as per the conditions laid down in the above mentioned Guidelines, in cases where the surrogate mother also donates her egg, the authorizing parents / infertile couple will have to legally adopt the child, and it is only after this long drawn legal procedure has been complied with, then the infertile couple become the legal parents of the child born through such an arrangement. This fact will also have to be recorded in the birth certificate issued to such a child.
Furthermore, where the genetic material is supplied by third party donors, then in such cases the birth certificate issued to the child will initially have the names of the genetic parents. Here, it becomes mandatory for the infertile couple to legally adopt the surrogate child so born, before they are declared to be the legal parents of such a child.
However, Para 3.5.5 mentions that - A third-party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice versa. But we can already see by the number of real life examples as discussed above that the law relating to surrogacy in India is in its premature stage. Unfortunately at the moment there is no legislation in existence prescribing a code of practice governing the moral, ethical and legal aspects of such surrogate arrangements.
CONFLICT OF LAWS ARISING DUE TO INTER-COUNTRY ADOPTIONS
Legal Technicalities involved -
Article 7 of the CRC states, “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”88 It also recommends that like many other human rights norms, the requirement of immediate birth registration is consistently violated, as over 30% of births worldwide are not registered, including nearly two-thirds of the births in South Asia.89 The failure to register births in sending countries makes it more difficult to document the age and family of origin of children, which unfortunately facilitates abusive adoption practices.90
Second, the child’s “right to know and be cared for by his or her parents” are not done accordingly.91 UNICEF thus implies that removal of a child from the birth family to an adoptive family would violate the child’s rights unless, after the offer or provision of relevant assistance, “a child’s family is unavailable, unable or unwilling to care for him or her.92
Furthermore, adoption involves the destruction of any legal relationship or contact between the child and his or her biological parents. The CRC raises the question of whether a system of adoption that denies children information about their biological parents, particularly when a child seeks such information; violate the provisions of the CRC?93
For e.g., if the adoptive family had been United States citizens wishing to adopt a child and bring it into the United States, it would be debatable as to whether the child qualified as an “orphan” under the present United States immigration law.94 If a direct transfer between birth and adoptive family had been attempted while the father was alive it would have been impermissible because United States law would not consider such a child an orphan for immigration purposes. What US law allows is that when a “sole or surviving parent is incapable of providing the proper care to the child “in writing” irrevocably release the child for emigration and. Adoption.
Under the Guardian and Wards Act 1890, presently, only non-Hindus and foreign nationals can be appointed as guardians of children. They cannot adopt children and the child is deprived of the benefits of a valid adoption.
To support this statement, in an article,95 it had been pointed out that the root of the problem is the unknown number of placement agencies’ who’s scrupulous desire for financial gain and their tendency to extort money from childless foreigners. In the same report, it was observed that in reality the paperwork is complex while the system is out of action because of long delays at the different levels of inspection.
The procedures involved in inter-country adoption are too complicated. Though the intention is to screen the genuine cases the procedures give rise to a lot of bureaucracy. Bureaucratic controls are too complex and hence there is a tendency towards violations. Since checks and balances are done by Government officials there is a likelihood of a lot of corruption.96
According to many in-vitro fertilisation experts in New Delhi, the truth is that, there has been an increase in the number of infertile couples from foreign countries opting for in-vitro fertilisation. The availability of low-cost and hi-tech treatment in India is helping many non-resident Indian and foreign couples to fulfill their dreams of natural parenthood. However, such non-resident Indian and foreign couples are reluctant to opt for adoption for two major reasons -
Religious and social factors which is a major issue.
Secondly, due to the presence of cumbersome adoption and immigration laws which makes it very difficult to take the child either to the United Kingdom or the United States, after he/she has been obtained from the homeland.97
It has been held that there are over 12 million orphaned children in India who need parents along with another 44 million destitute children who are denied the warmth, care and affection of a family.98 If only people could surpass the desire to have a baby that is genetically theirs, India would be the logical place where childless couples could seek parental happiness through adoption. Research shows that parental love has less to do with biological ties and more with shared experiences, and that adoptive parents love their children as much as biological parents.99
However, by virtue of Art. 14100 of the constitution of India, the Supreme Court of India, recently has accepted the petition of the Evangelical Fellowship of India (EFI) to make provision for Christians to be able to adopt children legally, so far only Hindus are allowed to do so. Accordingly, the Hindus can “legally” adopt in India but only Christians and other religious minorities can only become “guardians.” However, till date, the Supreme Court has not come up with any decision in this matter. 101
The problem regarding the conflict of laws situation arises where non-resident Indians couples, who have been residing abroad for several decades, adopt children from within their own family. The preference for adoption by immediate blood relatives is a common South Asian phenomenon.102 The innocent adoptive parents duly comply with the requirements of the HAMA 1956 for taking the child in adoption. The adoption deed is presented to the immigration authorities and this is where the dispute commences.
As per the 1973 Order, when a child has been legally adopted from a country whose adoption orders are recognised as valid under UK law, i.e. from a ‘designated’ country, then the parents may apply for the child to join them in the United Kingdom as their adopted child. If the child has not been legally adopted from a ‘designated’ country or the adoption is from a country whose adoption orders are not recognised as valid in UK law, i.e. the child is from a ‘non-designated’ country, entry clearance will have to be obtained for the child to travel to the United Kingdom for adoption through the English courts. India is specified as a ‘non-designated’ country under the 1973 Order.103
The adoptive parents, then, are put to harassment and refusal when the immigration authorities on the ground that the adoption deed is not valid under the 1973 Order, although there has been due compliance with the provisions of the HAMA 1956. The only avenues available to the parents are to challenge the refusal by way of appeal or to lodge a fresh application. Rambert De Mello in his book had viewed that - “But, the central plank to uphold the validity of such an adoption is on the basis of right to family life.”104
Thus, in Singh v Entry Clearance Officer, New Delhi105, the Court held that that the bias against Indian adoption custom was wrong and that it was a breach of the right to family life and discriminatory to refuse an adopted child entry clearance to the United Kingdom by giving less weight to an adoption effected by customary law in India and which was recognised as valid there, on the ground that it was not a recognised practice in English law.106 The consideration which arose in this case was whether an adoption which does not meet the requirements of relevant international instruments should invariably be a reason for according little weight to it in determining whether family life exists or not.107 It was held by the Court of Appeal, England that the adoption of the boy in the above case was valid in India but not recognised in the United Kingdom.
Under this judgment, the right of the couples to enjoy a family life by recognising an adoption made in India as under the provisions of the HAMA, 1956, has got a strong foothold even after being in direct conflict with the provisions under HC 395 of British immigration law.108
Due to the unavailability of any such laws, both the American and the European embassies at New Delhi refuse to recognise the above-mentioned adoption deeds under the provisions of HAMA 1956 except the provision of guardianship which can be obtained after filing for guardianship petitions under the Hindu Minority and Guardianship Act, 1956 in the court of the guardian judge, in whose jurisdiction the minor child is residing.
Along with these petitions, an extensive documentation regarding the background and standing of the proposed overseas adoptive parents is required. As it is a time consuming situation, it becomes very difficult for the foreign couples to spend long periods of time in India awaiting custody orders. With these custody orders, the adoption ultimately takes place in the foreign country of habitual residence of the adoptive parents.109 Furthermore, adoptions within the family fold are not encouraged, while adoption applications by foreigners seeking to adopt children from orphanages and welfare homes receive a more positive treatment.
CONCLUSION
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 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 Concerned110whereby 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 inter-country 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”.111
Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the judgment of the Supreme Court and started directly approaching the placement 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 Supreme Court.
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 (Supervision and Control) Rules.112 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.’113
In between the issue of inter-country adoption which have yet to be dealt properly by the Indian Government, the legal issues of surrogacy have now cropped up as -
There is no legislation in India pertaining to surrogacy as yet.
Secondly, no practical concrete useful benefits are forthcoming at all to prospective NRI adoptive parents and persons of foreign origin arising out of India signing The Hague Convention Adoptions.
Thirdly, the 2007, proposed revised guidelines should make an attempt to provide a clear cut direction to all major Embassies, High Commissions and Consulates in India, so that all adoptions taking place in India under the provision of The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 by non-resident Indians, persons of Indian origin and foreigners as well, should be duly recognized and their validity accepted so as to facilitate movement of the adopted children in the country of the habitual residence of the adopting parents
But most importantly 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.114
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 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. “There is an urgent need to change the laws, make the process less cumbersome and allow India to become a popular adoption destination.”115
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. There are considerable changes needed in this field of inter-country adoption of India along with enactment of legislations dealing with children born out of surrogacy arrangements and their legal parenthood.
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 legislations 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 adopted ones.116
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 counseling, services, or help 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 $100.117 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 programmes 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.118 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 unparented 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.
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.119 The ‘Best Interest of the Child’ is the guiding principle behind all adoption laws in India and social awareness programmes has helped to change the attitude of society and people towards adoption in India.120
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.