Adoption And The Law

• Relevant laws in India
• Inadequacies and lacunae in current legislation
• Supreme Court Judgement, February 1984
• Need for a uniform adoption law or civil code
• Role of government
• Role of Voluntary
• Co-ordinating Agencies
• Role of Scrutinising Agencies
• Recommendations from the United Nations

Her Family broken, mine begins
Oh, who can understand the
ways of life
When loss and love join hands?

by Angela

FOR GENERATIONS, ADOPTION has been a familiar custom in India, though in a different way. In the past, a childless couple would ‘adopt’ and bring up a child either of their immediate or distant family. Nonetheless, the practice of adopting an unrelated child is still in its infancy in India. There is no uniform law for adoption; hence it is difficult to lay down universally applicable procedures.

The two laws under which adoption in India functions are not child oriented, even though the focus of all adoption work should really be the child. From the legal point of view, adoption is viewed as a transaction whereby the mutual rights and responsibilities related to the child and belonging to the biological parents, are permanently transferred to the adoptive parents.

Since adoption involves a permanent termination of parental rights and links the child permanently to another family, the laws related to adoption are very important. The child is vulnerable and totally dependent on the adults who are making her life decisions, and hence safeguarding her rights and interests is of prime importance.

Though there is no uniform law for adoption in India, the legislation related to adoption can be seen as falling into two broad categories :

• Hindu Adoption and Maintenance Act of 1956
• Guardians and Wards Act of 1980

The Hindu Adoption and Maintenance Act, 1956 ( HAMA 1956)

Adoption in India is at present governed by personal law and, therefore, only Hindus can avail of HAMA 1956. Here are some salient features:

1.       This Act applies to any person who is a Hindu by religion in any of its forms, including Buddhism, Jainism and Sikhism.

2.       The Act also applies to anyone who is not a Muslim, Christian, Parsi or Jew by religion.

3.       The Act applies to any child, legitimate or illegitimate, who has been abandoned by her father and mother or whose parentage is not known and who is brought up as a Hindu, Buddhist, Jain or Sikh.

4.       Any male Hindu can adopt if he is of sound mind, and not a minor.

5.       The male Hindu who is married, and who desires to adopt, shall not do so except with the consent of his wife (unless, the wife has renounced the world, ceased to be a Hindu or is declared of unsound mind).

6.       The female Hindu can adopt only if she is of sound mind, not a minor and not married ( unless she is a widow or divorcee). If she is married, then she can only be the consenting party, and not a joint petitioner with her husband in the child’s adoption.

7.       Only the child’s father, mother or guardian can give it in adoption.

8.       At the time of adoption, the adoptive father or mother by whom the adoption is made must not have a biological or adopted child or grand- child of the same sex.

9.       The age difference between the adopter and adoptee must be at least 21 years if they are of the opposite sex.

10.   The purpose of the adoption is to transfer the child from the family of its birth to the family of its adoption. From the time of adoption, all the ties of the child to the family of her birth shall be deemed to be severed and replaced by those created with the adoptive family.

11.   No valid adoption can be cancelled; it is irrecovable.

12.   A registered adoption document, which is made and signed by the person giving and the person taking the child in adoption, is in compliance with the law and is a valid adoption.

13.   No person shall give or receive any payment or award in relation to the adoption.

The Guardians and Wards Act, 1890 (GWA 1890)

Personal law for Muslims, Christians, Parsis and Jews do not recognise complete adoption and hence persons belonging to these communities who are desirous of adopting a child can take a child only in ‘guardianship’ under the provisions of GWA 1890. This does not provide to the child the same status as a child born biologically to the family. This act confers only a guardian-ward relationship.

Juvenile Justice Act, 1986

This Act replaced the different Children’s Acts of the State and Union Territories. Under its purview, children are classified into two categories : neglected children and delinquent children. Juvenile Welfare Boards and Juvenile Courts are set up for these children. The neglected child is destitute abandoned and free for adoption; here, adoption is seen as one of the ways to rehabilitate the child.

The Juvenile Justice Act, 1986 outlines the following provisions: "To provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for adjudication of certain matters relating to the disposition of delinquent juveniles."

Inadequacies and lacunae in current legislation

1.       The most important inadequacy in the existing legislation is the absence of a uniform law for adoption, which would apply to all Indians and all other adoptive parents irrespective of their religion, caste or creed.

2.       The only adoption law prevalent - HAMA 1956 - is not child-ori ented, but parent-oriented. Besides, it is a religion-specific law, applicable only to Hindus.

3.       Under HAMA 1956, two children of the same sex cannot be adopted by one adoptive couple. Also, the adoptive mother is not a joint petitioner, but only a consenting party.

4.       The GWA 1890 confers only the status of a ward to the adopted child and not the status of a biologically born child, hence there is no security for either the adopted child or the adoptive parents.

Supreme Court Judgement, February 1984

In the absence of a uniform adoption law, this judgement of 1984 is historic. It provided comprehensive directives and guidelines to process adoption, under GWA 1980. The judgement regulated several aspects of the adoption process with respect to the destitute child, the natural parents, the adoptive parents and social welfare agencies, with a view to promoting adoption in India.

The Supreme Court judgement directs that the child should have the opportunity to be adopted first by Indian parents, only falling which her adoption by foreigners could be considered. The judgement provided for government intervention; the government was required to issue recognition certificates to agencies in India and abroad, which would permit them to work for inter-country adoption.

The judgement acknowledges the importance of the Co-ordinating Agencies and stipulated their role in the process. It also clarified and emphasised the role of the Scrutinising Agencies which were to assist the courts in studying the applications of adoptive petitioners.

The judgement was an outcome of a detailed analysis and hence dealt with every relevant issue. Today, this is the only reference for the processing of inter-country adoption.

Need for a uniform Adoption Law or Civil Code

The Adoption Bill was first introduced in the Rajya Sabha in 1972, advocating a uniform law on adoption, applicable to all communities. The Bill merely empowered a person to adopt if he or she wished and it had no compulsive status. It recommended an enabling legislation and if it was contrary to person’s religious sentiments, he or she was free not to adopt.

However, this Bill was dropped from Parliament when certain minority communities opposed it.

Eight years later in December 1980, the Bill was reintroduced in Parliament with a provision that it would not be applicable to the opposing minority community and that this community would be exempted from it. However, this too was rejected.

A concerted effort is very much needed to create a strong support group in favour of a uniform adoption law or civil code.

Role of Government

After the Supreme Court Judgement of 1984, the role of the government in the promotion of in-country adoption has considerably increased. Statistical analysis of in-country adoption shows an upward trend from 398 adoptions in 1988 to 1,075 in 1990. These are the major areas of government intervention:

1.       Establishing an Adoption Cell in the Ministry of Welfare, to handle all matters related to adoption.

2.       Awarding recognition certificates for inter-country adoptions to agencies in Indian and abroad.

3.       Formulating and circulating guidelines to regulate matters relating to the adoption of Indian children. The resolution was published in the Gazette of India for general information and circulated to all state governments, to the Registrar of the Supreme Court and high courts, and to conconcerned embassies and high commissions abroad.

4.       Setting up of a Central Adoption Resources Agency (CARA), in compliance with the directives of the Supreme Court, to monitor and regulate the working of those adoption agencies recognised by the Central Government. CARA is expected to work in close co-operation with Voluntary Co-Ordinating Agencies (VCAs) and enlisted Indian and foreign placement agencies.

5.       Organising and arranging periodical meetings with VCAs, adoption agencies and Scrutinising Agencies for discussing matters of common concern in the field of adoption.

6.       Under the Incentive Scheme, the Ministry of Welfare is offering incentives to recognised voluntary agencies doing in-country adoptions over the stipulated percentages prescribed in the guidelines. The objective behind the incentives is that with this amount, the agencies could improve the quality of their child welfare programmes and promote in-country adoptions.

7.       Giving support to some VCAs through their Grant-in-Aid scheme to promote the work of in-country adoptions.

8.       Recognising the difficulties involved in placing handicapped children within the country, the Supreme Court issued an order on August 14, 1991, that these children be kept out of the purview of the guidelines and required quota of in-country adoptions.

The government is now actively involved in formulating guidelines for CARA so that its role in connection to Indian adoption agencies, foreign agencies, VCAs and Scrutinising Agencies is clear.

Role of Voluntary Co-ordinating Agencies

The Supreme Court Judgement of September 27, 1985 in its writ petition recognised the role of Voluntary Co-Ordinating Agencies (VCA) and recommended that such agencies be set up in each state.

The main function of VCAs is to facilitate co-ordination and co-operattion between Indian placement agencies to promote in-country adoption.

They maintain a central list of both children available and parents wanting to adopt, and also co-ordinate inter-agency referrals.

The VCAs have been trying to evolve uniform norms, criteria and placement procedures, to minimise and standardise the costs involved in Indian adoptions, to compile annual adoption statistics, and to arrange for inter-VCA co-ordination.

Role of Scrutinising Agencies

Scrutinising Agencies are appointed by the courts to facilitate the pro- cessing of in-country and inter-country adoption applications. Their role and functions have been defined in the directives of the Supreme Court Judgement, and this is to scrutinise applications and not affect placements. The Scrutinising Agencies screen placements and submit their representatation as required by the court.

The recommendations of the Scrutinizing Agency are to be considered by the court when it is passing an adoption order. At present, there are two major scrutinizing agencies in the country which operate through their state branches.

Recommendations from the United Nations

Extracts from the Convention on the Rights of the child, adopted by the General Assembly of the United Nations on November 20, 1989

What the United Nations wrote down in 1989 to protect the child might be of great significance when India is ready to evolve a uniform adoption law.

Article 20

1.       A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the state.

2.       States Parties shall in accordance with their national laws ensure alternative care for such a child.

3.       Such care could include, inter alia, foster placement, kafala of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

Article 21

States Parties that recognise 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 all 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 counselling as may be necessary.

b.       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;

c.       Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in national adoption;

d.       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;

e.       Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

Conclusions and recommendations made by the United Nations expert group on adoption and foster placement, Geneva, December 1978

"On the basis of the general exchange of views on the subject, the Group adopted the following draft declaration on Social and LegalPrinciples relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationality and Internationality."

Extracts relating to adoption principles and recommendations:

1.       The primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by his/her biological family.

2.       Adoption procedures should be flexible enough to meet the child’s needs in various situations.

3.       In considering possible adoption placement, those responsible for the child should select the most appropriate environment for the particular child concerned.

4.       Sufficient time and adequate counselling should be given to the biological parents to enable them to reach a decision on their child’s future, recognising that it is in the child’s best interest to reach this decision as early as possible.

5.       Legislation and services should ensure that the child becomes an integral part of the adoptive family.

6.       The need of adult adoptees to know about their background should be recognized.

7.       There should be recognition, in the law, of traditional adoption within the family, to ensure the protection of the children and to assist the family by counselling.

8.       Government should determine the adequacy of their national services for children, and recognize those children whose needs are not being met by existing services. For some of these children, inter-country adoption may be considered as a suitable means of providing them with a family.

9.       When inter-country adoption is considered, policy and legislation should be established to protect the children concerned.

10.   In each country, placement should be made through authorized agencies competent to deal with inter-country adoption services and providing the same safeguards and standards as are applied in national adoptions.

11.   Proxy adoptions are not acceptable, in consideration of the child’s legal and social safety.

12.   No adoption plan should be considered before it has been established that the child is legally free for adoption and the pertinent documents for completing adoption are available. All necessary consents must be in a form which is legally valid in both countries. It must be definitely established that the child will be able to immigrate into the country of the prospective adopters and can subsequently obtain their nationality.

13.   In Inter-country adoptions, legal validation of the adoption should be assured in the countries involved.

14.   The child should at all times have a "name, nationality and legal guardian. "

Recommendations relating to adoption

1.       Governments should establish legislation for adoption, in order to provide necessary safeguards for the child, the biological family, the adoptive family and society and should make provisions for the services necessary to implement adoption legislation.

2.       These services should be available on a continuing basis to all concerned in the adoption, before, during and after the legal adoption is completed.

3.       Services should be organized and co-ordinated at the national level in such a way as to enable every child in need of an adoptive family to find one.

4.       At the same time, governments should inform themselves of the legislation, procedures and standards of service in countries that have offered to find adoptive homes.

5.       Immigration and emigration regulations should be in compliance with good adoption practices, as stated in these principles.