"Do you want to do something beautiful for God? There is a person who needs you. This is your chance1"
Scientifically procreation is considered as an integral and an ultimate purpose of life. Similarly, under several Religions, creation of a progeny is considered as a pious obligation. Reproduction not only proliferates number, rather, also the gene pool of any species, vital for evolution and development of a new race. A family is often defined a collection of individuals, associated by marriage or by birth. Despite this there may be instances in which such bonds of affection and family, result not due to conception and birth, rather, by means of adoption. Universally, adoption has been recognized as integral means of acknowledging the rigours of harsh life and cruel destinies of abandoned and orphaned children and providing some solace by their reintroduction into a family. It is equally recognized that adoption is not an act of charity, rather, restitution of the right of the child to a loving and caring family, deprived for the reason of such child's placement into abandonment.
Understandably, where one of the parties involved in the process of adoption is a child, it becomes obligatory on State, as parens patriae, to be extra cautious in order to safeguard the interest of such naïve class of its subjects. Equally important is a need for stringent laws to ensure that the process of adoption does not result in the victimization of this susceptible class, especially so when the members of this class are recognized as "supremely important national asset". In India, the provisions of Hindu Adoption and Maintenance Act, 1956 govern the process of adoption for Hindu, Buddhist, Jains and Sighs. In contrast, Muslims, Christians, Parsis and Jews are governed by their respective customary laws and the provisions under the Guardians and Wards Act, 18902. Besides these, provisions relating to adoption are also provided under the Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act"). In fact, under the said Act, adoption is defined3 as a, "process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child" Further, as per Section 2(34) of the JJ Act, "inter-country adoption" means adoption of a child from India by nonresident Indian or by a person of Indian origin or by a foreigner." Pertinently, in the exercise of the powers conferred in terms of the provisions of Section 68(c)4 read with Section 2(3)5 of the JJ Act, Ministry of Women and Child Development, notified the Adoption Regulations, 2017, inter alia, governing the process and procedure of adoption in India, including that of inter country adoption.
Experiences show that there are several issues involved in the process of adoption necessitating consistent involvement of State and Judiciary. It is, therefore, quite understandable that such issues intensify numerically when the adoptive parents are based in a country outside India. This process of adoption being commonly known as, "Inter-country adoption" or "transnational adoption", that is, the adoption of Indian children by foreigners. Appreciating such issues in cases of inter-country adoption, however, supporting the said process for the welfare of children, the Hon'ble Supreme Court in Lakshmi Kant Pandey v. Union of India6, cautioned, "great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or experimentation for medical or other research and may be placed in a worse situation than that in his own country." Further, the Hon'ble Supreme Court prescribed several pre-conditions/ requisites/ principles for the said process. Accordingly, it was, inter alia, prescribed; every application from a foreigner desiring to adopt a child to be sponsored by a social or child welfare agency recognized or licensed by the government of the country in which the foreigner is resident; recognized social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must, before offering a child in adoption, make sure that the child is free to be adopted; child study report to be prepared and necessary enquiries be made before filing of an application for guardianship of the child proposed to be given in adoption; expeditious completion of the process; desirability of adoption of child below the age of 3 (three) years for easy assimilation and integration of adopted child in the new environment, etc. Pertinently7, the Hon'ble Court was cognizant of the fact that in the absence of statutory provisions regarding inter-country adoption in India, the process of adoption in such cases can be effectuated in the adoptive parents' country, after permitting removal of child from India to such foreign country on appointment of foreign parent as a guardian of such child.
Under the Internationally Law regime, India has ratified the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption ("Hague Adoption Convention") in the year 2003, which is an international agreement to safeguard intercountry adoptions. As per Article 1 of the Hague Adoption Convention, object of the same is provided as, inter alia, 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. Requirements of inter-country adoption are prescribed under Articles 4 and 5 of the Hague Adoption Convention, largely dependent on the satisfaction and determination of the competent authorities of the country of origin and receiving States, respectively. Significantly, under Article 21 of the said Convention, in cases where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority8 of that State that the continued placement of the child with the prospective adoptive parents is not in the child's best interests, such Central Authority shall take the measures necessary to protect the child. In particular, such measures may, inter alia, include; withdrawal of child from the prospective adoptive parents and arrangement of temporary care of such child; immediate arrangement of a new placement of child with a view to adoption or alternative long-term care, etc., in consultation with the Central Authority of the State of origin and/ or arrangement of return of the child, as a last resort, if his or her interests so require, etc.
The Law Commission of India ("Law Commission") in the year 1994, carried out a study on the need for regulation of Inter-country adoption of children by Law and submitted its Report, titled, "One Hundred and Fifty Third Report on Inter-Country Adoption". The Law Commission duly recognized that in the cases where the parents desired to give their child in adoption or in case the child is abandoned, "it would be in the interest of the child to five in adoption" However, it was opined that in such an event, effort must be made first to find adoptive parents for the child within country, failing which, adoptive parents to be non-resident Indians and foreign parent, in that sequence. It was further acknowledged by the Law Commission that often under the garb of adoption, Indian children are taken abroad for domestic services and by unscrupulous persons to exploit the innocence of the child. Keeping in view the difficulties posed under such circumstances, the Law Commission recommended the enactment of a specific/ dedicated Law, inter alia, regulating the matters relating to adoption of Indian children by foreign parent; providing for mechanism to ensure for the welfare of the child in the country of adoptive parents; providing for submission of progress report of the child by the sponsoring foreign agencies for a period of 5 (five) years or till the child attains the age of 12 (twelve) years, whichever is later; etc. In fact, a draft Bill in the form of Inter Country Adoption Bill was provided for under the said Report. Pertinently, under the proposed Bill, provisions for passing of adoption order (Section 4); conditions for adoption order (Section 5); effects of adoption order (Section 6); eligibility for adoption (Sections 7 till 9); restrictions on removal of child for adoption outside India (Section 14); setting up of Central Adoption Resource Agency (Section 20); etc. were prescribed. However, the said Bill could not be adopted as a statute. Further, unfortunately, even till date, no specific statutory enactment in the lines of said Bill exists in India.
Pertinently, under the JJ Act procedure for inter-country adoption of an orphan or abandoned or surrendered child and procedure for inter-country relative adoption are provided under Sections 59 and 60, respectively, thereof. Simultaneously, Chapter IV of the Adoption Regulations, 2017 deals with the adoption procedure for non-resident Indian, overseas citizen of India and foreign prospective adoptive parents. Significantly, Regulation 14 of the Adoption Regulations, 2017 provide, "Non-resident Indian prospective adoptive parents shall be treated at par with Indians living in India in terms of priority for adoption of Indian orphan, abandoned or surrendered children". Regulations 15 and 16 of the Adoption Regulations, 2017 provide for the procedure for registration and preparation of home study report for prospective adoptive parents for inter-country adoption and issuance of No-Objection Certificate of Authority and pre-adoption foster care, respectively. Provisions for follow-up of progress of adopted child by Non-Resident Indian, Overseas Citizens of India and foreign prospective adoptive parents are provided under Regulation 19 of the Adoption Regulations, 2017. At the same time, Regulation 22 of the Adoption Regulation, 2017, prescribe the procedure for adoption of a child from a foreign country by Indian citizens.
Importance of children in a civilized society cannot be over-emphasized. It is universally accepted that the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Therefore, it becomes incumbent that the rights of such vulnerable and innocent section of the society are conserved and protected. Undoubtedly, the existing provisions under law provide decent amount guidelines for regulating inter-country adoption. However, the existing provisions, largely in the form of regulations, may pose issue in their enforceability. Accordingly, it would be recommendable that the existing provisions are adopted in statutory format to ensure compliance and enforceability. It goes without saying that the absence of State and Judicial machinery to ensure safety and protection to the young generation would amount to failing in observing the Constitutional obligations. Unquestionably, only with care and a sense of protection, this section of our society would be able to pave way to a happy family and a prosperous nation. In the words of Ms. Indira Gandhi, "We must protect families, we must protect children, who have inalienable rights and should be loved, should be taken care of physically and mentally, and should not be brought into the world only to suffer"
Footnotes
1 Mother Teresa
2 In relation to guardianship, as formal adoption is not permitted under these Religions.
3 Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015
4 Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2015, "The Central Adoption Resource Agency existing before the commencement of this Act, shall be deemed to have been constituted as the Central Adoption Resource Authority under this Act to perform the following functions, namely:- (c) to frame regulations on adoption and related matters from time to time as may be necessary"
5 Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015, "adoption regulations" means the regulations framed by the Authority and notified by the Central Government in respect of adoption."
6 (1984) 2 SCC 244
7 "10. Now one thing is certain that in the absence of a law providing for adoption of an Indian child by a foreign parent, the only way in which such adoption can be effectuated is by making it in accordance with the law of the country in which the foreign parent resides. But in order to enable such adoption to be made in the country of the foreign parent, it would be necessary for the foreign parent to take the child to his own country where the procedure for making the adoption in accordance with the law of that country can be followed. However, the child which is an Indian national cannot be allowed to be removed out of India by the foreign parent unless the foreign parent is appointed guardian of the person of the child by the court and is permitted by the court to take the child to his own country under the provisions of the Guardians and Wards Act, 1890..." (Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244)
8 Chapter III of the Hague Adoption Convention- Central Authorities and Accredited Bodies
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
