A CONCEPTUAL STUDY BASED ON INTER COUNTRY CHILD ADOPTION VIS-À-VIS HUMAN RIGHTS OF CHILDREN
Sudeep Saket, Rahul Soni
Raffles University, Neemrana, Alwar (Rajasthan)
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would, of course, be that of the family of his biological parents. But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents. The adoptive parents would be the next best substitute for the biological parents. In this paper the researchers have dealt with meaning scope and concerns related to inter country adoption and have also dealt with historical development of inter country adoption. The researchers have also discussed the kinds of adoption. The researchers have also touched upon the difficulties and legal aspects related to the inter country adoption and human right prospective, special emphasis on Indian Aspect.
In this paper the researchers have discussed the provisions related to inter country adoption. Here the researchers would be discussing the international as well as national scenario for inter country adoption. The researchers will also discuss various national as well as international instruments concerning the rights of child Vis a Vis conventions and guidelines dealing with inter country adoption at both levels.
It can be defined as adoption of a child by a person of another country. Adoption is a judicial and administrative act that establishes a permanent legal child parent relationship between minor and adult who is not already the minors’ legal parent and terminate the legal parent child relationship between the adoptive child and any former parents. Inter country adoption also refers as transnational adoption is a type of adoption in which an individual or couple becomes the legal and permanent parents of a child that is a national of different country. In general, prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country whose nationality the child holds.
“Adoption has always been considered a wonderful opportunity to provide the child with home and parents a child. It is a better alternative to institutional care for an abandoned, destitute child in the today’s environment backed by happiness and love which can only be provided in family. Earlier practice of adoption was shrouded in secrecy which was restricted in traditional family. That time the tradition was of such a mindset that the childless couples adopt a child with a view to ensure and avoid their traditional continuity and alienation of property respectively. The intervention of child welfare agencies in process of adoption started in early seventies had in a way changed societal attitude and concept of adoption.”[i] Many significant changes can be witnessed in the legal, social and practice level of adoption programmed with procedures best suited to the children. There has been sharp rise in the rate of adoption and many families have started adopting child as soon as they come to know their inability to have biological child. In a broad sense adoption may be termed as institutionalized social practice through which a person belonging by birth to one family or kinship groups acquires new family ties that are socially defined equivalent to biological ties and which supersedes the old ones either wholly or in part. Now the big thing to know is how adoption evolves as a social institution? One of the oldest written laws, the codex Hammurabi back in (18th century) already contained provisions on the adoption of children in particular founding’s. The principle that the first priority of a child is to be cared for by his or her own parents (Art. 3 of U.N. Declaration)[ii] is already reflected in that code. Section 106 provides that before a man can adopt foundling he must look for the child’s parents and if he finds them must restore the child to them. In ancient Rome to provide a son and heir to a childless man as a means by which the family line was saved from extinction was of paramount consideration in adoption. Several Roman emperors were adopted for this purpose. The adoption for the child not reached puberty was earlier prohibited but later allowed but only under strict condition. Under Hindu Law son ship has a great importance. To have a son was considered a must for every Hindu family. It is one remarkable feature of Hindu jurisprudence that throughout the Hindu period right from the Vedic age to this date Hindus have always desired to have an aurasa i.e. natural born legitimate son, for the spiritual benefit and the continuation of the family.[iii] This kind of secondary sons have very well been accepted, existed and recognized. Since adoption was primarily a spiritual act in ancient Hindu law adoption of daughter was not favored so also the women did not have the right to adopt.[iv] Hence this way it can concluded that adoption was surrounded my many conditions. Now it is maintained and regulated by the Hindu Adoption and Maintenance Act, 1956.
Under Islamic Law instead of the practice of adoption vary widely across the globe in the one or the other form as it appears to be cultural university but it is an exception under the Islamic Law and societies. According to the interpretation most broadly prevailing in these societies the Koran introduced the prohibition of artificial creation of family ties (Nasab) by tabbanni. The Koran very expressly mentioned that the adopted sons shall not be treated as natural one and shall not be named after their adopters. The present position of number of Islamic countries is illustrated by the following comments of one of these countries, Kuwait on an early draft of the UN declaration: “with regard to the paragraphs concerning adoption that practice is, as is well known, forbidden on Islam on account of the confusion of lineage it involves. These paragraphs therefore cannot be accepted while some features of adoption are to be found in our laws. They are included in the system of foster care which performs its role in the psychological, health, social and educational care of the child with the aim of securing a better life for him the in the future and granting him the nationality as a basic pre condition.” As this passage brings out the crucial point is the creation of artificial filiations bonds which is not tolerated but this does mean that a child who is raised by another family than his biological one remains legally unprotected. The code of Napoleon of 1804 marked the beginning of modern legislative concerns with adoption. The code abolished the adoption of minors only permitting the adoption of adults who in their youth had been cared for by the adopters for six years.[v] The adopters had to be 50 years of age and be without descendants. The adoption was a contract but had to be approved by the court which checked the substantive condition and reputation of the adopter. The adoptee retained all his or her rights in the original family and only acquired success oral rights and the name of the adopter. In1960 when United Nation sponsored one Leyzin seminar[vi] which is said to have inspired legislative work both on the international plane and at the national level.
Instruments which laid down the provisions for the protection of rights of the child in adoption are given in detail below-
- The Geneva Declaration of the Rights of the Child of 1924.
- Declaration of the rights of the Child adopted by U.N. General Assembly on November 20, 1959. It was indeed a very important event as regard the international recognition of the rights of the child. The General Assembly affirmed that the child has the right to enjoy special protection in a healthy manner.
- Draft guidelines of procedures concerning inter country adoption were formulated by expert group and adopted by Economic and social council of United Nations in its 20th It lays down certain social and legal principles which must be observed in the case of inter country adoption.
- The Hague Convention of 15th 1956.
- The United Nations Declaration on social and legal principles relating to the protection and welfare of the children with special reference to foster placement and adoption nationally and internationally were adopted by the UN General Assembly on 3rd 1986.
- The United Nations Convention on Rights of the Child on Nov. 20, 1989.
- Preliminary Draft Convention on international co operation and protection of children in respect of inter country adoption drawn up by the special commission of the Hague Conference on the private International Law, in February, 1992.
- Private International law convention on protection of children and co operation in respect of inter country adoption, final act at the Hague Conference on 29th may, 1993.
The U.N. General Assembly adopted it in 1959. It is a declaration on the rights of the child.[vii] This declaration lays down that “the child by reason of physical and mental immaturity needs special safeguard and care, including appropriate legal protection before as well as after birth”, and that mankind owes to the child the best it has to give.” Some relevant provisions which talked about the adoption which includes which and by what means, by whom and what are the different safeguards for the child. Those will be explained in detail below, First being the Right to Survival, which provides special protection, opportunity and facilities through law and other available means to make him develop mentally and morally and physically too with all freedom and dignity? Best interest of child shall be of paramount consideration.[viii] There is also a provision wherein personality and name of child must be secured.[ix] It should be insured that child get the full and harmonious development of his personality which needs both love and understanding. Also a child of tender years shall not save in exceptional circumstances, be separated from his mother. It shall be the duty of society and public authority to extend help to family less children and to those without adequate means to support.[x] Child must be protected against all forms of neglect, exploitation and cruelty.[xi] He should not be subjected to trafficking in any form.[xii] Protection against discrimination[xiii], to protect against racial, religious and racial discrimination. He shall be brought up and a spirit of understanding, friendship among people, peace and universal brotherhood and in full consciousness that his energy and talents should be devoted to the service of his fellow men. Other provisions of the CRC pertaining to both national and inter country adoption provide basic standards, as follows:
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary;[xiv]
(b) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it:[xv]
The CRC thus seeks to ensure: (a) the use of the “best interests of the child” standard;[xvi] (b) 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 counseling as may be necessary[xvii] and (c) government safeguards against improper financial gain in inter country adoption.[xviii]
“Other provisions of the CRC do not directly address adoption, but nonetheless have important implications for a system of inter country adoption. Article 7 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.”[xix] This provision is significant to inter country adoption in several ways. First, like many 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.[xx] 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. Second, the child’s “right to know and be cared for by his or her parents” implicates adoption in several ways. Most directly, adopted children generally are not cared for by their parents, in apparent violation of the CRC. UNICEF plausibly explains this conflict by noting that children should be cared for by their parents “whenever possible.” 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.”[xxi] In addition, adoption or at least closed adoption has typically involved the destruction of any legal relationship or contact between the child and his or her biological parents. The secrecy associated with closed adoption has made it difficult or impossible for a child to know her biological parents even if she, as an adult adoptee, wishes to conduct a search. The CRC thus implicitly raises a question of whether systems of adoption that denies children information about their biological parents, particularly when a child seeks such information, violate the CRC.[xxii] Presumably, defenders of closed adoption would argue that the best interests of children justify secrecy in adoption, while opponents would claim that openness is in a child’s best interests. Although issues regarding the best interests of children are difficult to resolve, it appears that the CRC was not intended to prohibit closed-record domestic adoption systems. Third, the right of a child to a “name” is a poignant reminder that adoption can involve the loss of the original name given to the child by the birth parents.[xxiii] According to the CRC, the vulnerability of children to having their names changed, concealed, or lost, legitimately or illegitimately, in the adoption process, implicates the rights of children.
The conceptual structure of the CRC suggests that as the child’s capacities develop, he or she would be given a greater degree of participation and even autonomy.[xxiv] Although the CRC does not require the consent of the child for all older-child adoptions, it is a fair reading of the CRC to require the child’s consent at some level of age or maturity. Thus, the CRC indicates that all children capable of being consulted should participate by having their views considered, while some, older or more mature children, should participate through a requirement that the child must consent to any adoption. Participation rights could be applied to other adoption issues as well. First, there is the question of which remedy to apply when a child has been illegally adopted. Second, there is the question of whether children should have access to information about their birth families, or even personal access to them. The CRC implicitly raises the question of whether, and to what degree, the child’s views should be heard, or even be dispositive of these issues.”[xxv]
This is a convention of 29th may 1993, named “Protection of Children and co-operation in Respect of Inter Country Adoption” and it was entered into force on 1st may, 1995. Below I will be discussing the relevant provisions related to protection of the child, these provisions have been mentioned in the preamble itself:-
- Full and harmonious development of a child must occur in family environment, and the atmosphere surrounded by all love and happiness.
- State should take appropriate measure to enable the child to remain in the care of his or her family of origin.
- Inter Country adoption provides permanent family to child who is without family and suitable family cannot be found in his or her place of origin.
- Convinced of the necessity to take measures to ensure that inter country adoption are made in the best interest of the child and with respect for his or her fundamental rights and to prevent the abduction, or traffic in children.
The impact of The Hague convention will be felt directly be agencies working in countries by treaty: however there are elements that will also affect families.[xxvi] However while the Hague convention is an excellent ideal in implementation it could actually impede many adoptions. A country like Guatemala which has had a plethora of child trafficking, prostitution and many orphans are not temporarily closed to adoption after the country ratification of the Hague convention. The convention causes some government like India to rum incredibly slow, creates a rigourus process that few pass and instead of helping the children get out of orphanage, it keeps them inside them, getting older until they pass the age of adoption and simply wait until they are legal adults. Most children who grow up in orphanage and become legal adults get very little in the way of education, become unemployed or pregnant and begin the vicious cycle all over again.
The Hague Convention standards for a valid consent to adoption are extensive and yet are ultimately a matter of broadly-held ethical adoption standards. The standards have three requirements for consent by those, like birth parents, with custodial responsibilities and rights in relation to the child. First, those parents giving consent to adoption must have received the equivalent of informed consent, including counseling as necessary and being informed as to the legal effect of the consent, “in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin.”[xxvii] Second, such consent must not have backing or any kind of inducement relating to payment or compensation and have also have not been withdrawn. Third, consent must be given “freely, in the required legal form, and expressed or evidenced in writing.”[xxviii] Moreover, such “inducing” monetary payments would also appear to constitute the separate definition of “sale of children,” under the OP-CRC, because they We have seen that the developing international law definitions of illicit child trafficking, or the sale of children, do not yet address all situations within the common sense or dictionary definition of those terms. The law has been reluctant to label all sales of children as prohibited forms of child trafficking and has failed to demand penal sanctions for all abusive adoption practices. Yet, it is encouraging that the law has been moving in the direction of clearly labeling certain abusive adoption practices as prohibited forms of child trafficking or sale of children. Certainly, it seems to be the intent of the OP-CRC to clearly and definitively label some abusive adoption practices as the illicit sale of children subject to penal sanction.
Legislative framework for the inter country adoption
Law must be there for any kind of ambiguity in any matter persisting in state and society. We have separation of power wherein there are three are three organ of state, as far as enactment of law is concerned it rest with the legislature. Legislative assembly is the authority, by whom a law should be produced which is not in their place or who is having any ambiguity or not certain, it is the most important or rather we can say the only job is to be done by them. Concept of inter country adoption is no where clearly mentioned in the provisions which deals with the inter country adoption, only in the Guardianship and Wards Act some of the provisions has been given, although they are also not very straight forward towards the concept of inter country adoption. In order to clear and make a clear picture of it some very significant efforts being made. Two very vital bills were prepared by the Member of Parliament to make clear the picture of an adoption done not within the country but also between the countries. Here are some of these efforts which were being made and were introduced in houses of parliament.[xxix]
- The Adoption of Children Bill, 1972.
- The Adoption of Children Bill, 1980.
The 1972 bill, was introduced in Rajya Sabah, subsequently it was taken back, “presumably because of the opposition of the Muslim stemming from the fact that it was intended to provide for a uniform law of adoption applicable to all communities including Muslim.”[xxx] As we know that the adoption at all is not permissible in Muslims so for that reason they oppose this particular bill for the enactment.[xxxi] The reasoning that apex court here given[xxxii] that it should by universal and these words are follows “it is a little difficult to appreciate why the Muslims should have opposed this bill which merely empowered a Muslim to adopt if he so wished: it had no compulsive force requiring a Muslim to act contrary to his religion tenets:[xxxiii] it was merely an enabling legislation and if a Muslim felt that it was contrary to his religion to adopt, he was free not to adopt”.[xxxiv]
In the Lok Sabah, eight years later from the first bill another bill in 1980 was introduced which talked about inter country adoption regulations. Below are few important provisions of this bill dealing with such adoption:-
Social Welfare Organization-[xxxv] clause 17 of the bill lays down that no institution or organization can make any arrangement for adoption of an Indian child by foreign parents unless such institution or organization is licensed as a social welfare institution.
- Provision for the payment [xxxvi]– “in the bill it was laid down that it would be unlawful to make or to give to any person any payment or reward for or in consideration of the grant by that person of any consent required in connection with the adoption of a child or the transfer by that person of any arrangement for such adoption.”
- No provisional adoption could be made[xxxvii]– “it was given in the bill that “no provisional adoption order can be made in respect of an Indian child except with the consent of the parents or guardian of such child and if such child is in care of any institution, except with the consent of the institution given on its behalf by all the persons entrusted with or in charge of its management, but the District Court can dispense with such consent f it is satisfied that the persons whose consent is to be dispensed with has abandoned, neglected or persistently ill treated the child or has persistently failed without the reasonable cause to discharge his obligation as parent or guardian or cannot be found or is incapable of giving such consent or is withholding consent unreasonably. When an provisional adoption order is made by the District Court on the application of a person domiciled abroad, such person would entitled to obtain the care and custody of the child in respect of which the order is made and to remove such child for the purpose of adopting it under the law or within the country in which the order is made and to remove such child for the purpose of adopting it under the law within the country in which he is domiciled.”[xxxviii]
Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedure which must be followed in such a case, resort is hard to the provision of guardian and wards act,1890 for the purpose of facilitating such adoption. This act is an old statute enacted for the purpose of providing foe appointment of guardian of the person or property of minor.[xxxix]
Section 4, sub section (5), clause (a) defines the court to mean the district court having jurisdiction to entertain an application under the act for an order appointing or declaring a person to be guardian and the expression “district court” is defined in sub section 4 of the section 4 to have the same meaning as assigned to it in the code of civil procedure and includes a high court in the exercise of its ordinary original civil jurisdiction. Section 7,sub section (1) provides that where the court is satisfied that it is for the welfare of child that an order should be made appointing a guardian of his person and property or both or declaring a person to be such a guardian ,the court may make an order accordingly and according to section 8,such an order shall not be made except on the application of one of the four categories of person specified in clause a to d one of them being “the person desirous of being the guardian of the minor and the other being the relative or friends of minor.sub section 1 of the section 9 declares that if the application is with respect to the guardianship of the person of the minor and that is the kind of application which is availed of for the purpose of inter country adoption. It shall be made to the district court having jurisdiction in the place where the minor ordinarily resides.
The relevant provisions of the guardian and ward act 1890 are “section 11, 17 and section 26”[xl] which have the bearing on the procedure to be followed for the purpose of carrying through inter country adoption. the foreign parents make an application to the court for being appointed guardian of the person of the child whom he wishes to take in adoption and for leave of the court to take the child with him to his country on being appointed such guardian. One thing is certain that in the absence of a law providing for adoption of an Indian child by foreign parents, 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 parents 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 parents 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 Indian by the foreign parents unless the foreign parents 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 guardian and ward act, 1890.
The adoption of children today forms a part of personal laws or family laws in India. Religion has played a very dominant role in this sphere and is the basis of various personal laws including adoption. The fact is that today a Hindu child is being governed by the Hindu Adoptions and Maintenance Act, 1956 and has the opportunity of being taken in adoption under the Act only because he is a Hindu by religion. The Hindu adoption act provided limited authority for Hindu persons to adopt Hindu children, but adoption of a child was prohibited if the adoptive parent already had a child, birth or adoptive, of the same gender.[xli] The definition of a Hindu under the Act includes not only a person of the Hindu religion “in any of its forms or developments,” but also a “Buddhist, Jaina, or Sikh by religion.” A person who is a “Muslim, Christian, Parsi, or Jew” is explicitly excluded from the coverage of the Act.[xlii] The children of other religions have to be taken as wards under the Guardians and Wards Act, 1890 (GAWA). Presently, there is a huge gap in India between the number of children who need to be adopted and the number being adopted every year. It is estimated that there are nearly 12.5 million orphaned children in the country and millions others who are neglected, abused and/or abandoned. There are thousands of non-Hindus who wish to adopt these children but barring those who agree to take a child home under GAWA, a majority of them end up dissuaded and decide not to do so since the Indian law does not permit them to adopt and they do not wish to take the child as a mere ward. Many of these millions of children, who are deprived of their right to life in any sense of the term, could get adopted into loving and caring families and homes, which would, in turn, open the doors of life to them. The Muslim, Christian and Parsi children are denied this opportunity only because of their religions. Many of these orphan, destitute children do not have the historical or social background, educational or cultural outlook, way of life or thought common to their respective communities, and therefore, the discrimination against these children is solely on the ground of religion. Thus, Article 15 of the Constitution forbidding discrimination on the ground of religion alone should strike down all these provisions as unconstitutional and ultra-vires. The Constitution has itself recognized the existence of various personal laws in operation in our country. When the Constitution was being adopted and enacted, in Article 44, it directed that the State shall Endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. In 1949, when this Article was enacted, there were already uniform codes covering every aspect of legal relationship except only those matters in which we were governed by the various personal laws.
In stark contrast to the provisions of the JJ Act, 2000 in force as on date, the Juvenile Justice Act, 1986 (hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent juveniles”. While the provisions of the 1986 Act dealing with delinquent juveniles are not relevant for the present, all that was contemplated for a ‘neglected juvenile’ is custody in a juvenile home or an order placing such a juvenile under the care of a parent, guardian or other person who was willing to ensure his good behaviour during the period of observation as fixed by the Juvenile Welfare Board.[xliii] Foster care, sponsorship and being looked after by an after-care organization. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006.[xliv] In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time the responsibility of giving in adoption was cast upon the Court which was defined by the JJ Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship including the court of the district judge, family courts and the city civil court.[xlv] Rule 33 (5)[xlvi] Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The CARA, as an institution, received statutory recognition and so did the guidelines framed by it and notified by the Central Govt.[xlvii] In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted. Chapter V of the said rules deal with rehabilitation and social reintegration. Under Rule 33(2) guidelines issued by the CARA, as notified by the Central Government under Section 41 (3)[xlviii] of the JJ Act, 2000, were made applicable to all matters relating to adoption. It appears that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested by the JJ Act, 2000 most of the States have followed suit and adopted the guidelines issued by CARA making the same applicable in the matter of adoption within the territorial boundaries of the concerned State. Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions regulating pre-adoption procedure i.e. for declaring a child legally free for adoption.[xlix]
National Policy for Child 1974
The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goal oriented perambulatory introduction. “The Nation’s children are a supremely important asset.[l] Their nurture and solicitude are our responsibility. Children’s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve out larger purpose of reducing inequality and ensuring social justice. The measures are designed to protect children against neglect, cruelty and exploitation and to strengthen family ties so that full potentialities of growth of children are realised within the normal family neighbourhood and community environment”. The National Policy also lays down priority in programme formation and it gives fairly high priority to maintenance, education and training of orphan and destitute children.[li]
It is humbly submitted that for inter country adoption we need to have a appropriate legislation regulating such legislation as the existing rules and procedure contained in guardian and wards act are inadequate. The new enactment must eliminate profiteering and trafficking in children and also prevent abuse by foreign parents and welfare of the child must be of paramount consideration. The child can best be developed in biological environment which consist of biological parents but this is not possible in the case of abandoned children living in orphanage therefore to provide the biological atmosphere to these children the preference at the time of adoption should first be given to Indian parents, the second should be given to non resident Indian and lastly to foreign parents. The new legislation also regulate the adoption with the consent of the biological parents of the child and in case of the abandoned child welfare agency’s agency consent should be preferred. The consent must be free from any kind of duress and inducement and proper implication of the consent of parents must be made. Once the child has developed the rational understanding then the consent of child should be obtained. Agency must work fast on passport so that the child could flee to join his foreign parents. There must also be a mechanism wherein the welfare of the child could also be supervised in the country of adoptive parents. The new legislation should also mandate it to foreign agencies working in this regard to work on the progress report of the child for a period of 5 years or till he attains the age of 12 whichever is later. The new legislation should permit adoption of child by a foreigner only if the child can eventually be adopted under the law of his own country which in other words means that if the law of the foreigners’ country does not allow adoption then he must not be allowed to adopt the child. There must be complete transparency over the agencies engaged in it as there is heavy money involved to it. As far as role of court is court then it would not be wrong to suggest that. The family court and if it’s not there then District Court having jurisdiction shall be the competent court to decide the matters. The proceedings of the court must be disposed in proper time as it takes a lot more time to finish off the proceedings and it should be held in camera. The Central Adoption Regency Agency (CARA), established by the Govt of India, is to increase its efficacy, by improving its man power and working conditions. THE Agency would have had better access, if it establishes Regional Branches. The accountability of the CARA could be increased by making it submit annual reports to the Parliament. The law is to specifically mention about the funds and other allocations to CARA. The law is to prescribe conditions as to recognition and de-recognition of Indian and foreign child welfare Agencies.
Maintained charge should have to be revised as the charges which have to be paid by the foreign adoptive parents to the social and welfare agency had been fixed by the court 30 years before as of now. The different grounds should be looked for the fixation of maintenance charges, these could be following:
- Firstly the life of the welfare agency who gives in adoption is totally based upon the maintenance and the donation given by the foreign adoptive parents. So before fixing it the court have to look out the survival of those agencies.
- The need of the child and other expanses, before fixing the maintenance the court have to see that the parents will give because it will provide better treatment to other children as well.
- Medical and other expanses, the court also need to touch upon this issue as it is a kind of one time help that institution will get.
[i] E.L. Johnson, “Family Law”, 121 (Sweet and Maxwell, London 1965).
[ii] United nations General Assembly Declaration on social and legal principles relating to the protection and welfare of children, with special reference to foster placement and adoption Nationally and Internationally.
[iii] In early 17th Century Dattaka-m?m?ms?. considered to be the classical work on the topic of Adoption and subsequently used by the British authorities as Hindu law. Later it was translated by Sutherland in 1821. Another renowned work Dattaka- chandrika is attributed to Kuvera. The main points, according to the Dattaka-Chandrika, are as follows:there are two motives in adopting a son; viz.
- to perform obsequial rites is honour of the adoptive father and his ancestors,
- to be the successor of the adoptive father. Any sonless man may adopt a son; ‘sonless’ implies the absence of son, grandson and great-grandson.
Except for a Sudra, one cannot adopt a daughter’s son or a sister’s son. A person’s single son cannot be given in adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son. In the Commentaries and Digests, while the father’s power of giving in adoption is universally recognized, the same power is denied or doubted to the mother. The learned writer of the Dattaka Minansa quotes the following text of Saunaka,
“By one having an only son the gift of a son should not be made; by one having many Sons the gift of a son should anxiously be made, and comments since the masculine gender is used in the compound word ‘by one having many Sons’ the gift of a son, by a woman is prohibited, available at: http://webcache.googleusercontent.com/search?q=cache:http://ietd.inflibnet.ac.in/bitstream/10603/4130/11/11_chapter%25203.pdf. (Visited on, march 5, 2015).
[iv] J.C. Hall, “Sources of Family Law”,87 (University Printing House, Cambridge 1966).
[v] M.V. Pradhan,” Supplement to the Law Relating to Minors”, 118 (N.M. Tripathi Ltd Law publisher, Bombay 1954).
[vi] A regional seminar in which only European States participated and which focused on international adoption between European States.
[vii] Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448 [hereinafter CRC].
[viii] Principle 2 of the U.N. Declaration on the rights of the child, 1959.
[ix] Id. principle 3.
[x] Id. principle 6.
[xi] Id. principle 9.
[xiii] Id. principle 10.
[xiv] Id. art. 21(a).
[xv] Id. art. 21(d).
[xvi] Id. art. 3, para. 1, 28 I.L.M. at 1459.
[xvii] Id. art. 21(a), 28 I.L.M. at 1464.
[xviii] Id. art. 21(d).
[xix] CRC, art. 7,para. 1, 28 I.L.M. at 1460.
[xx] UNICEF reported that in 2000, 70% of births in sub-Saharan Africa, 63% in South Asia, 22% in East Asia and the Pacific, and nearly one-third in the Middle East and North Africa went unregistered. UNICEF, BIRTH REGISTRATION, available at http:// www.unicef.org /protection/index_birthregistration.html (last visited Feb.5, 2015).
[xxii] CRC, supra note 14, art. 8,28 I.L.M. at 1460. See generally D. Marianne Brower Blair, The Impact of Family Paradigms, Domestic Constitutions, and International Conventions on Disclosure of an Adopted Person’s Identities and Heritage: A Comparative Examination, 22 MICH. J. INT’L L. 587 (2001).
[xxiii]. CRC, Art. 7, para. 1, 28 I.L.M. at 1460.
[xxiv] Id. art. 5, 28 I.L.M. at 1459–60.
[xxv] David M. Smolin, “The Two Faces of Intercountry Adoption: The Significance of the Indian Adoption Scandals”, Seton Hall Law Review, Vol. 35:403 Available at: http://works.bepress.com/david_smolin.
[xxvi] The principles of the Hague convention strengthen protection for children, birthparents and prospective adoptive parents in the adoption process. It provides a framework for a convention countries to work together to ensure that adoption take place in the best interest of children and to prevent the abduction, sale or trafficking of children in connection with inter country adoption.
[xxvii] Id at art 4, 5 (b).
[xxix] “The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books. The history of attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature.”
[xxx] L.K. Pandey v. Union of India, AIR 1984 SC 469.
[xxxi] In Martha Nussbaum’s Sex and Social Justice, she cites Tariq Mahmood, a professor at the University of Delhi, on this issue. “Even if it is accepted that Islamic law prohibits adoption, ow can the Muslims prevent enactment of a secular law of adoption which will be applicable only to those who wish to adopt a child? If Islamic law does not permit adoption, the Muslims need not make use of the Indian adoption law. That law will certainly not impose on any person a duty to adopt….If Islam does not recognize a social or economic concept, the state cannot compel every Muslim to keep away from it. If that were possible, our banking laws should not be available to any Muslim, since Islam does prohibit interest on money.” Available at: http://arbitrarymarks.com/wordpress/2007/03 .
[xxxiii] There can be situations where there is no son to a man so in that situation that man can or cannot adopt a son for himself and treat him like a son. It may be noted that the Prophet has envisaged that in case of slaves, they should be known by their father’s name. The custom of adoption is valid amongst Mohammedans, and Shariat law does not prohibit such custom of adoption. It cannot, therefore, be said that the Holy Quran prohibits adoption. If the above verse is interpreted to mean that the prophet has prohibited adoption, it cannot be assumed that what is prohibited by the Holy Quran can be permissible by customand usage.
[xxxv] Clause 17 of the adoption of Children Bill, 1980.
[xxxvi] Id. Clause 21.
[xxxvii] Id. Clause 8.
[xxxviii] Paras Diwan, Law of Adoption minority Guardianship and Custody 111 (Wadhwa and company, Allahabad, 2nd edn, 1993).
[xxxix] “Salient features of The Guardian & Wards Act 1890, herein after referred as GAWA are as follows:
- Applicable to Christians, Muslims, Parsis, Jews.
- Under GAWA, the relationship between the adoptive parents and the adopted child is that of guardian and ward respectively.
- Unlike HAMA, adoption under GAWA is not irrevocable and doesn’t not confer status of the child on the adopted child. All the inter-country adoptions are processed in India under the GAWA”.
[xl]Then follow section 11 sub section1 which prescribes that if the court is satisfied that there is ground for proceeding on the application, it shall fix a date for hearing thereof and cause notice of the application and of the date fixed for the hearing to be served on the parents of the minor if they are residing in any state to which the act extends the person if any named in the application as having the custody or possession of the person of the minor, the person proposed in the application to be appointed guardian and any other person to whom, in the opinion of the court, special notice should be given. section 17 provides that in appointing guardian of minor, the court shall be guided by what ,consistently with the law to which the minor is sub etc ,appears in the circumstances to be for welfare of minor, and in considering what will be for the welfare of the minor, the court shall have the regard to the age ,sex and religion of the minor, the character and capacity of proposed guardian and his nearness of kins to the minor, the wishes if any, of a deceased parents and any existing and previous relationship of proposed guardian with minor and his property. The last material section is section 26 which provide that a guardian of the person of minor appointed by the court shall not, without the leave of the court by which he was appointed shall not remove the ward from the limit of its jurisdiction, except for such purposes as may be prescribed and leave to be granted by the court may be special or general
[xli] Hindu Adoptions and Maintenance Act, No. 78, 7, 8 & 11 (1956), available at: http://indiacode.nic.in/fullact1.asp?tfnm=195678 (last visited march. 5, 2014). The definition of a Hindu under the Act includes not only a person of the Hindu religion “in any of its forms or developments,” but also a “Buddhist, Jaina, or Sikh by religion.” A person who is a “Muslim, Christian, Parsi, or Jew” is explicitly excluded from the coverage of the Act.
[xlii] Section 2 of Hindu Adoption and Maintenance Act 1956.
[xliii] The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. Such rehabilitation and social reintegration was to be carried out alternatively by adoption or foster care or sponsorship or by sending the child to an after-care organization. Section 41 contemplates adoption though it makes it clear that the primary responsibility for providing care and protection to a child is his immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deals with alternative methods of rehabilitation namely.
[xliv] Section 2(aa)-“adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”.
[xlv] It is only the District court having the jurisdiction to entertain such application. Following this observation the Kerala High Court in Andrew Mendez’s case opined that Sec 7(1) (g) is not sufficient to clothe the Family Court with the jurisdiction to consider an application for adoption by reckoning the same as incidental to guardianship and custody. Another important point was raised in this case, i.e., Sec. 7(2) (b) of Family Courts Act declare that the Family court shall also have and exercise such other jurisdiction as may be conferred on it by any other enactment. Though J.J. Act is an enactment, it doesn’t certainly states that Family Court shall be the court for the purpose of Sec. 41(6). On the contrary, the Central Rules promulgated U/s 68 of the J.J. Act confers such jurisdiction on Family Court, but it does not fall within the ambit of “enactment” as explained by the High Court in the aforesaid case. Consequently it was concluded by the Kerala High Court that the Family Court does not have jurisdiction to entertainan application for adoption by a guardian U/s 41 (6) of J.J. Act and it can’t be held to be the court U/s 41(6). It is only the District Court, which can have jurisdiction to entertain such application U/s 41(6) of Juvenile Justice Act, 200 read with Rule 33(5) of the Central Rules.
[xlvi] According to Rule 33 (5) of the Central Rules under the said Act, the “Court” implies a civil court, which has jurisdiction in matters of adoption and guardianship and may include the court of District Judge, Family Court and City Civil Court. But the provision of the said Rules empowering the Family court has been subjected to several criticisms by judiciary. In the case of Manuel Theodore D’Souza [II (200) DMC 292] the Bombay High Court also observed that the right to adopt being a fundamental right must be capable of enforcement through the civil court as it falls within the ambit of Sec. 9 of Civil Procedure Code. It was also opined that the District Court or the High Court has the jurisdiction to deal with the question relating to adoption as this court normally deal with the disputes regarding custody, guardianship etc. of children. It was also held that such applications can be filed before the District Courts exercising powers under the Guardians & Wards Act and such applications for adoption of the child by a guardian must be reckoned as a miscellaneous application in the petition in guardianship.
[xlvii] Section 41(3) of JJ Act.
[xlviii] “The guidelines issued by the CARA and notified by the Central Govt. U/s 41(3) of the Act, shall apply for all matters relating to adoption. Now, it is necessary to understand what Child Welfare Committee is. As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression “Committee” means a Child Welfare Committee constituted U/s 29 of the Act. Now it is necessary to ascertain the meaning of Child Welfare Committee.”
[xlix] “There is a provision in the act that deals with criteria for the child to be adopted.[xlix]The Rules also provide for foster care (including pre-adoption foster care) of such children who cannot be placed in adoption & lays down criteria for selection of families for foster care, for sponsorship and for being looked after by an aftercare organization. Whatever the Rules do not provide for is supplemented by the CARA guidelines of 2011 which additionally provide measures for post adoption follow up and maintenance of data of adoptions.”
[li] “There is also provision in the National Policy for constitution of a National Children’s Board. It is the function of the National Children’s Board to provide a focus for planning, review and proper coordination of the multiplicity of services striving to meet the needs of children and to ensure at different levels continuous planning, review and coordination of all the essential service.”