Adoption Laws In India

Adoption Laws In India A child is most certainly the best gift that God can give to a couple. The feelings that new parents go through when their baby is born cannot be described in mere words. However, there are some people in this world who may not be so lucky and may not have the pleasure of having a baby. There is no need, for such people, to get disheartened whatsoever, since every problem has a solution. This solution comes in the form of adoption. Adopting a homeless child is one of the noblest things to do. With celebrities like Angelina Jolie, Brad Pitt and our very own Sushmita Sen going in for adopting kids, it seems to have cut off from its initial apprehensive stage. Now, more and more couples and even single parents are coming forward to adopt kids. There is a certain procedure to adopt a child and it is recommended that you follow it in order to have a problem-free adoption and also avoid any future hassles. The procedure is a bit time consuming due to immense number of applications from interested couples. Here’s how to do it. Adoption Procedure - What is It All About? The adoption procedure starts with filling a formal application form by a couple who is interested in adopting a baby at a well-known adoption agency. After this, a social worker from that agency studies the living conditions and monitors the daily activities of the couple in order to ensure whether or not the couple is capable of handling an adopted child. Usually, a couple is monitored on aspects like family background, emotional health, quality of marital life, financial stability, etc. Go-Ahead Signal A No Objection Certificate is then issued to the agency by CARA (Central Adoption Resource Agency )when it is satisfied about the family and the couple submits certain documents necessary for evaluation. The couple is not allowed to come and choose a child, as it is normally believed. They have to give details regarding what kind of child are they expecting and the placement agency finds the child according to that expectation. Foreign adoption is pretty much the same, with the difference that certain immigration laws have to be abided to by the couple. Reliable Indian Adoption Agencies On the recommendations of the Supreme Court of India, the local VCA (Volunteer Coordinating Agency) in Delhi has ten recognized adoption agencies. They are: •

SOS Children’s Villages of India

•

Holy Cross Social Service Centre

•

Missionaries of Charity

•

Church of North India

•

Welfare Home for Children

•

Delhi Council for Child Welfare

•

Matri Chhaya

•

Children of the World

•

Right to Life Society

•

Asharan Orphanage

Indian Adoption Laws All the matters related to adoption are dealt by the Ministry of Welfare (now known as Ministry of Social Justice and Empowerment), as stated by the Indian Government. One can go to the CARA that has its headquarters in Delhi in order to deal with all matters related to adoption in India. The adoption procedure is centered on the legislations as given below that are applicable and is based on the religion of the interested adopter. The Hindu Adoption and Maintenance Act, 1956 (HAMA) The HAMA is the only existing act that provides basic strategies and course of action for adoption to Hindus in India. Hindu, in this category is defined as any person who is a Hindu by religion or its forms like Buddhists, Jains, Brahmo, Sikh, Prarthna or Arya Samaj. According to this act, if a couple already has a child then they can only adopt children belonging to the opposite sex of that

child. The adoption cases are handled by the city civil courts. The Guardianship and Wards Act, 1890 The Guardianship and Wards Act 1890 gives the full guardianship authority to non-Hindus who are governed by their religious personal laws like Muslims, Christians, Parsis and Jews. The guardians have to give an investment plan and invest a certain amount of money for the security of the ward. The adoption cases are handled by high court or family court.

Child Adoption Policies in India- A Review Paper presented by A.S. Shenoy, Chair, International Relations Committee, Indian Council of Social Welfare, Mumbai

1st International Conference on Inter- country Adoption organized by Child NGO Federation- Nepal at Katmandu, Nepal on 10th, 11th and 12th March 2007

Introduction The Government of India is fully sensitized and committed to the rights and welfare of children. The Constitution of India under Article 24- Chapter on “Fundamental Rights of the Citizens” provides the right against exploitation of the children below 14 years. Article 45 of the Directive Principles of the State Policy in the Indian Constitution envisages for free and compulsory education of children. Basic Indian Policy At the International level, India has ratified the convention on the Rights of Child and the Hague Convention on inter- country adoption of children. At national level, India has prepared a National Policy for children in 1974 under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and Protection of Children) Act 2000 is a landmark in this regard. This Act has incorporated the provision of adoption of child as an alternative to institutional care.

Adoption provides a very important function in Indian society. India has long tradition of child adoption. In olden days, it was restricted within the family and was covered by

social and religious practices. But with the changing times, adoption beyond the contour of family has been institutionalized and legalized. What Government of India and State Governments is providing necessary support and guidance through its policies and programmes, the NonGovernmental Organizations (NGO’s) provide necessary delivery system for the process of adoption which is above board and transparent.

Implementation of Policy -- Central Agency To strengthen adoption rules and facilitate adoption without any hassles, Government of India under advice of Supreme Court constituted a Central Agency- Central Adoption Resource Agency [CARA] with New Delhi as base to set up guidelines for adoption time to time safeguarding welfare and rights of children while granting adoption or guardianship under Hindu Adoption and Maintenance Act 1956, Guardians and Wards Act 1890 or Juvenile Justice Act of 2000.

Scrutiny Agency To safeguard malpractices and deviations from prescribed guidelines for adoption notified by Government of India, Supreme Court of India has appointed an independent NGO with experience in child adoption – “The Indian Council of Social Welfare” with head quarters in Mumbai and branches in all state as Scrutiny Agency. This agency verifies all the relevant documents and authenticity before orders are issued by Judicial Courts for the formal adoption.. Guidelines for adoption CARA has issued separate policy guidelines for inter- country and in- country adoptions. The main policy adopted is placement agencies involved in adoption should strictly follow and comply with the guidelines of CARA and register with respective state governments. No Objection Certificate [NOC] from CARA is made mandatory in case of all inter- country adoption, before placement agency process the application in competent Judicial Courts.

Agencies approved for adoption

For safe guarding interest and welfare of child, India Government has recognized following agencies. 1. 2. 3. 4.

Indian Placement Agencies Foreign Placement Agencies Enlisted - 254 Voluntary Co- ordinating Agency in India Scrutiny Agencies - 13

- 73 (in various states) (in foreign countries) - 13 (in various states) (in various states)

More than 2000 children are given for adoption within India while above 1100 children are sent outside India for adoption.

Year

In- country

Inter- country

2003

2150

1384

2004

2350

1310

2005

2454

1266

Implementation of Hague Convention Recommendations India Government has notified various adoption policies consistent with Hague Convention as shown below. 

Central Authority (Art.6) • Central Adoption Recourse Agency (CARA) • Setup as a Wing of the Ministry of Welfare on 28.06.1990 • Made an autonomous body on 18.03.1999



Child is declared adoptable (legally Free for Adoption) by the concerned public authority, such as, Child Welfare Committee, etc. (as required under art. 4.a.) Priority is given to in-country adoption before a child is proposed for inter country adoption through the VCA’s & State Governments concerned (as required under art. 4.b. & 16.b.) All authorities/agencies including CARA apply the principle of ‘Best Interest of the Child’ to an adoption case (as required under art. 4.b. & 16.d.)

 

   

Necessary consents of biological parents, adoptive parents and the older Childs are obtained before an adoption is effected. (As required under art. 4.b. & 16.d.) Adoption is permitted only through recognized placement Agencies with professionally trained Social Workers. (as required under art. 11) Adoptive parents are required to escort a child from India for the secured transfer of the child as required under 19.2 Any improper financial or other gain is prevented (as required under art. 8 & 32) through: • Fixing adoption costs. • Prohibition of direct contact between Prospective Foreign adoptive parents and Indian Agencies. • Prohibition of middlemen. • Giving recognition to those Indian Agencies for working under the Convention who work with non-profit motive. • Financial Returns furnished by the inter-country adoption Agencies to charity commissioners, local state government & Ministries.

Procedure followed for inter country adoption are: I. Child is made legally free for adoption

• •

By relinquishment deed from biological parents No legal claim certificate from child welfare committee formed by state after making legal enquiry

II. Adoption Agencies

Step I For adoptive parents:

Pre- adoption counseling Application and

Registration Home study report- Identifying the child needs.

Step II Identifying a child to meet the needs of adoptive parents.

Making arrangement to see the child by adoptive parents.

Take the child for medical check up.

File documents to court for adoption order.

III. Voluntary Co- ordinating Agency (now known as Adoption Co- ordinating Agency)

• • • •

Registration of adoptive parents Registration of child available for adoption Home study reports (by foreign enlisted Agency for VCA) Furnishing data to CARA to create a data a bank

IV. CARA- Central Adoption Recourse Agency

•

To issue NOC to agencies to match child with foreign adoptive couple.

V. Scrutiny Agency

•

Verifying documents and child and give its recommendation to judicial courts.

VI. Judicial courts

•

Court examines the documents filed by placement agency, Adoptive parents and Scrutiny agency and satisfies itself everything is in order before issuing order for guardianship. A double check is made by the court about composite age, attitude and income of the adoptive couples.

•

When orders are issued child is free to be taken outside country for adoption.

Conclusion To conclude the trust of national policy of India for welfare of children is:

To protect abandoned and destitute children, goal is to find a family for as many orphan children as possible and to safeguard their interest as visualized in the UN Convention on child rights and Hague Convention on Inter country adoption ratified by India government. The ‘Best Interest of the Child’ is the guiding principle behind all adoption laws in India and social awareness programmes has helped to change the attitude of society and people towards adoption in India. The nation’s children are supreme important asset. Their nurture and solitude are responsibilities of nation. Children’s programmes should find a prominent part in national plans for the development of human resources so that children grow up to become robust citizens; physically fit, mentally alert and morally healthy endowed with the skills and motivation needed by the society. Equal opportunities for development to all children during the period of growth is the aim, as this will serve larger purposes of reducing inequality and increasing social justice.

References 1. A Report on International Meet on Adoption- December 2003 2. Guidelines for Adoption from India 2006- CARA 3. Juvenile Justice Act 2000 4. UN Convention on the Rights of Child (CRC) 5. Hague Convention ________________________________________________________________________ A.S. Shenoy, Chair, International Relations Committee, Indian Council of Social Welfare, Mumbai and General Secretary, ICSW Kerala Branch, ‘Sangeet’, Chittoor Road, Cochin- 682018, Kerala, India. E- mail: [email protected]

Adoption Laws of India for Foreign Nationals Introduction The adoption of Indian children by foreign nationals or international adoption is a controversial issue. To some people it is incomprehensible why Indian children should be sent abroad at all. This situation arises because adoption is still a bit of a stigma in India. Indians are not very open to the idea of adoption. In foreign countries, there is the opposite problem where children are in short supply for adoption. While there are innumerable cases of Indian orphans being given a secure and loving home in another country, newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. In other cases, so-called adoption agencies have demanded exorbitant amounts from foreign nationals in consideration of giving a child in adoption and often this is under the label of maintenance charges and medical expenses supposed to have been incurred for the child. It

is these cases that leave a bad taste in the mouth and make people wary of adoption by foreign nationals. In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children. A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890. The Indian court will appoint the foreigner as the child's guardian. The foreign national will take the child to his own country and adopt him or her as per the laws of his country. Assessing the fitness of the applicant A Social or Child Welfare Agency licensed or recognised by thegovernment of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. This agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship of the foreigner's application. The Home Study Report will include the following details: the applicant's family background, marital status, his education and employment history, his financial status and dwelling conditions, his health profile, information about other offspring, if any, and references. The agency must assess whether the applicant is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives. Requisite documentation The foreign national is required to submit supporting documents along with his application. These include: a recent family photograph, his marriage certificate, a declaration of theapplicants' physical fitness duly certified by a medical doctor, a declaration of the applicants' financial status with corroborating documents such as an employment certificate, income-tax returns, bank references, and particulars of property owned by them. Another important annexure to the application is a declaration of willingness. This document will state that the foreigner is willing to be appointed as the child's guardian. He will also have to furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child's arrival in his country. The applicant must also declare that he will maintain the child and provide it with necessary education and upbringing according to their status. The foreign national is also required to sign an undertaking that states that he will send the Indian agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years. In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case. All the certificates, declarations and documents that are attached to the foreigner's application are required to be duly notarized by a Notary Public. The notary's signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary's signature. Role of the foreign welfare agency The Social and Child Welfare Agency sponsoring the application of the foreigner must certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country. The agency must undertake to ensure the adoption of the child by the foreigneraccording to the law of his country within a period of two years. Once the adoption procedure is

complete, it is the duty of the agency to send two certified copies of the adoption order to the Social andChild Welfare Agency in India through which the application for guardianship was processed. One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records. The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency. These reports will be quarterly in the first year and half yearly in the following years till the adoption has been effected. The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency. In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare,Government of India, New Delhi. Court procedure The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located. The application will be filed by the Indian welfare agency or a person duly authorized by them in this regard. Next the court issues notices to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) in order that they scrutinize the guardianship application. These organizations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child's best interests. The ICCW or ICSW make their representation to the court after carefully studying the application with all the annexures, the Home Study Report, and the Child Study Report and making all necessary inquiries. The court will first hear all the concerned parties and examine all the documents. The court must be satisfied that the foreigner will be a suitable adoptive parent for the child and will provide the child a secure and loving home. The court must also be convinced that the child will be able to assimilate itself into the family and community ofthe foreigner. If the court is satisfied on all these counts, it will pass an order appointing the foreigner as the child's guardian and the foreigner will be allowed to take the child back to his country with a view to eventual adoption. In some cases, the court may even put a condition that the foreign national make provision by way of deposit or bond for the repatriation of the child to India should such a situation arise. The photograph of the child is attached to the order and counter-signed by the judge. It is a well-documented fact that court procedures are excruciatingly slow in India. Keeping this in mind, the Supreme Court of India, in the matter of L.K. Pandey vs. Union of India, has fixed a maximum period of two months for the disposal by the courts of applications made under the Guardians and Wards Act, 1890. The same judgement has categorically dispensed with the personal presence of the foreign national for the purpose of completing legal formalities.