This article explains the legal framework of inter-country adoption in terms of international law. This article also explores the concept of transnational adoption from Indian perspective.
Adoption can be defined as a legal process that terminates the legal rights and obligations of the child towards the biological parents and replaces the same rights and obligations towards the adoptive parents. Adoption establishes a parent-child relationship among those not so related by the birth of the child. For the abandoned children, adoption means a balanced physical and psychological family environment, and parents-to-be have the opportunity to become parents and experience family growth. This is one of the ways to solve the problems of the destitute and orphans. It is also a way to meet the interests of a person without children. It is common in all parts of the world. Adoption has been prevailing in India for centuries. Even great epics like the Ramayana and Mahabharata depict adoption. The practice of adoption has been practiced for centuries, but the concept of international adoption is a relatively new concept.
Although Hindus from the Vedic era to the present day, have always desired to have natural born son for the spiritual benefit and the continuation of lineage, yet right from the Vedic age, the existence of secondary sons in one form or the other has been recognised. Yet, the existence of another son in form of secondary son has been recognized. Most of these ideas for secondary sons became obsolete over time, and in the British era there were only natural and adopted sons.
This adoption agency has become international. International adoption can be defined as adoption of a child by a person belonging to another country. International adoption may be a more practical option for many families than domestic adoption, especially for those looking to adopt a healthy child. It should be borne in mind that this type of adoption includes Trans-racial, Trans-cultural and Trans -national aspects, so therefore care has to be taken that the process of solving the problems of such children may not land them in more difficulties arising on the wake of maladjustment in the new atmosphere.
INTERNATIONAL AND REGIONAL LEGISLATIVE FRAMEWORK:
Globally, the Convention on the Rights of the Child (CRC) is the main text for setting standards for adoption. International 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 been ratified by about 90 countries.
International legislators' approach to adoption changed in the late 20th century due to serious concerns about the misuse of adoption at the time.
Article 21 of the Convention on the Rights of the Child 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.”
The Committee on the Rights of the Child, the authority overseeing compliance with the Convention, expresses concern about violations of inter country adoption standards in many countries and urges all countries involved in international adoption to ratify The Hague Convention as a solution to the problem.
The Hague Convention has two main purposes, both unequivocally aimed at protecting children from illegal adoption practices in different countries, rather than encouraging such practices:
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.”
Besides the CRC and HC, there are several international laws that protect the rights of children in terms of international adoption. These include the European Convention on Adoption of Children, 1967, Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors, 1984, and the European Convention on the Exercise of Children’s Rights (ECECR).
ADOPTION FROM NON-HAGUE CONVENTION COUNTRIES:
Despite the existence of the HC, most Countries have not yet signed it, so many international adoptions take place outside the framework of the Convention. The procedures in the non-signatory countries are not very strict. With this in mind, non-signatories are attracting more and more people seeking inter-country adoption. For example, ICA in Ethiopia has continued to grow significantly over the past decade, from a few hundred per year at the start to over 4,000 in 2009.
LAWS OF ADOPTION IN INDIA:
Internationally, India has ratified the Convention on the Rights of the Child and the Hague Convention on International Adoption. The main laws adopted in India under the Hindu system are contained in the Hindu Adoptions and Maintenance Act, 1956 (HAMA).
The 2000, Juvenile Justice (Care and Protection of Children) Act and all amending Acts (2006, 2010 upto 2015) guarantee those rights to adopted children which are recognized by the Hague Convention. However, the 2000 law did not define adoption, and the term was included in the 2006 amendment. This was a major development as up till now adoption by a non-Hindu was guided by the Guardians and the 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.
CONCEPT OF INTER-COUNTRY ADOPTION IN INDIA:
The issue of validity of inter-country adoption was first discussed in the famous case of Re Rasiklal Chhaganlal Mehta, in 1956. The Court ruled that inter-country adoptions under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid under the laws of both the countries. Adoptive parents must comply with their country's adoption laws and must obtain approval for adoption from the competent authorities so that children do not suffer in immigration and obtaining citizenship in the adoptive parent's country.
The Supreme Court of India has formulated guidelines for inter-country adoption for the benefit of the Indian government. The guidelines were framed in the public interest litigation petition "Laxmi Kant Pandey v. Union of India". Regulatory body CARA (Central Adoption Agency) was recommended and accordingly established in 1989 by the Government of India.
What is Central Adoption Resource Authority (CARA)?
CARA is an autonomous agency set up under the Ministry of Women and Child Development that deals with adoption issues in intra-country as well as inter-country adoptions. The CARA guidelines stipulate that foreign partners wishing to adopt children in India must be sponsored by a government-approved child welfare agency or a social agency in the country where the foreign spouse lives.
The CARA guidelines also state that domestic adoption is preferred first. According to the CARA guidelines, only three types of children are recognized as adoptable:
- Those children who have been surrendered.
- Those who are abandoned.
- Those who are orphans and are under the care of some specialized adoption agency.
These guidelines also stipulate that all child Care Institutions (CCIs) must be registered under the provisions of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 pursuant to section 34 (3). The state recognizes suitable CCI’s as specialized adoption agencies pursuant to 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, it must meet all the requirements of the CARA.
Since then, the agency has played a key role in defining the rules, both substantive and procedural, in terms of inter as well as in country adoptions. This rule was legally recognized following its adoption by the central government under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and is now being applied and adopted 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 Mr. Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children the Court ruled 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 important issues of international adoption is finding prospective adoptive parents, especially from India. The Supreme Court of India, in the Karnataka State Council for Child Welfare v. Society of Sisters of Charity St Gerosa Convent, acknowledges that the reason for seeking Indian parents or parents of Indian origin is to ensure the welfare of the children so that they grow up in an Indian environment to help preserve their culture and heritage. The best interests of children are main and primary concern.
The Punjab and Haryana High Court in a recent judgement allowed a three-year-old child, adopted in 2018 by a Sikh woman who is a British national, to fly to United Kingdom with her to join the rest of the family. Justice Kaur in the ruling said JJ Act is special law for a limited class of children — those in conflict with law, in need of care and protection and protection, orphaned, surrendered or abandoned — but the child in this case is being given by the biological mother to her sister.
'The submission made by Amicus Curiae makes sense as it is not understood as to how an Act, which is applicable to a special class of children, namely, orphans, abandoned, surrendered and in conflict with the law, be also applied alongwith all its tedious procedures to children being given in adoption by able, mentally sound parents and that too to a relative directly. More so, when they are close relatives,” said the court.
PROBLEMS ARISING IN CASE OF INTER-COUNTRY ADOPTION:
The biggest threat to adopted children is child trafficking. Lack of awareness of the legal process for international adoption has led to many fake adoption agencies being set-up. Children are trafficked overseas by, providing false information, fake documents and making use of loopholes in the adoption guidelines prescribed by the Supreme Court.
Tracking adoptions becomes more difficult when children are surrendered to adoption in different countries. CARA guidelines describe the role of Indian diplomatic missions, foreign accreditation agencies and social workers in protecting children from child abuse after adoption, but in practice they have not helped anyone.
Post-Adoption Identity Problem:
For transnational adoption, adoptive parents must complete the adoption process on their own after entering their country, they have to take the child out of the country as legal guardian first. The situation becomes very bad if the legal guardian is not the child's adoptive parent.
Guidelines lack force of law:
CARA guidelines are often not legally effective. Therefore, if an ordinary citizen is not a member or belongs to a country that has withdrawn from the Convention, the parties are not required to follow the instructions or laws of India. This guidelines does not guarantee the health, safety and well-being of the children after they leave India. 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.
International adoption should be handled with great care as it can lead to child trafficking, exploitation of children and sexual abuse of children. Some recommendations are:
- CARA should get two chapters that separately deal with in County and intra country adoption.
- If the authorities do not comply with the rules and regulations, a crime case be considered.
- The Approval Process for Adoption Agencies must 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.
Transnational adoption is a great way to start a new life for children and adoptive parents. However, without a proper structure for adoption, this would violate the rights of the child. India also needs better policies and laws to deal with international adoptions. It is important to ensure the safety of child not only within the country, but also when the child leave the country after adoption.
- D. Howe, P. Sawbridge, and D. Hennings, 'Half a Million Women”, New York: Penguin, 1992.
- Convention on the Rights of the Child, Article 21(c).
- Convention on the Rights of the Child, Article 20.
- Hague Convention, Preamble and Article 1.
- Hague Convention, Article 4.
- Hague Convention, Article 4 (d)
- Hague Convention, Article 30
- Special Commission on the Practical Operation of the Hague Convention of 29 May 1993.
- Recommendation concerning the application to refugee children and other internationally displaced children of the Hague Convention of 29 May 1993, adopted 21 October 1994.