Inter-Country Adoption: Through the Indian Legal Lens

Introduction

More foreign nationals and NRIs have shown an increasing preference for adopting children with "special needs." Instances of adoption of Indian children by foreign nationals and Non-Resident Indians (NRI) increased by 10% in the years 2017–18, as per data from the Central Adoption Resource Authority (CARA). A total of 552 children were adopted in 2017–18 by foreign nationals or NRIs, compared to 500 in 2016–17.

Most adoptions came from US couples, followed by Italy, Sweden, Spain, and the United Arab Emirates. In 2016–17, the trend was similar, as per the New Indian Express. Most foreign nationals (60%) preferred to adopt children with "special needs" — those with mental or physical disabilities. Nearly 90% of the children adopted by foreign nationals were older than six years of age.

"It takes anywhere between 8 months and a year to adopt these children. The waiting time is less as fewer couples want to adopt them," an official said while discussing the adoption of children with disabilities, as indicated by the Supreme Court of India.

Challenges of Inter-Country Adoption

"You cannot fault them (India-based parents). They have almost no support system in our country, including medical," Indian Council for Child Welfare general secretary Girija Kumar Babu said. She added that most couples are from the working class and may not want the financial constraints associated with raising a child with disabilities.

Indian parents prefer to adopt children without disabilities and younger than six years of age. Another trend that emerged is that the rate of adoption of the girl child is higher than that for the male child among India-based parents as well as those living abroad.

After a change in rules in 2015, foreign nationals find it somewhat easier to adopt children with special needs and older children. Children under these two categories are moved sooner to the list of prospective adoptable children for foreign nationals if Indian parents do not select them.

The adoption process has been made online and is entirely in English, which has been problematic for Indians living in rural areas. The 2015 changes involved treating Non-Resident Indians on par with Indian residents, introducing timelines for adoption, monitoring adoption agencies, and introducing the system of pre-adoption foster care.

A prospective parent can search for children legally available for adoption according to age, language, and other criteria. CARA, which falls under the Union Ministry of Women and Child Development, has made the database of children available for adoption online and has connected it with adoption agencies across the country.

Adoption is the legal procedure of ending a child's legal rights and obligations to their natural parents and replacing identical rights and obligations with new parents by establishing a parent-child relationship between individuals who are not connected by blood.

India's Framework for Inter-Country Adoption Through the Years

Adoption-related rules in India have been shaped over many years by social reform campaigners and child welfare groups. The laws and policies enacted by the Indian government reflect this evolution. There is a relative shortage of inter-country adoption legislation in India. Legal provisions and Central Adoption Resource Authority (CARA) guidelines provide authority and legitimacy to the principal regulation governing inter-country adoption. The Government of India has developed a National Policy for the Welfare of Children in accordance with its constitutional mandate.

Since adoption is a particularly significant practice, the country has enacted various restrictions and guidelines. Various concerns arise in inter-country adoption. On issues such as who can adopt or be adopted, and the impact of adoption on succession rights, there are significant disparities in the laws of different countries. Generally, prospective adoptive parents must satisfy the legal adoption requirements of both their country of residence and the country of the child's nationality.

The process of adoption has been practised in India for millennia. Since Hinduism is India's most widely practised religion, stories and history contain chronicles of saints and royals who were adopted. The Hindu epics Ramayana and Mahabharata both include references to adoption. Children have been regarded as very important in the Hindu religion. It was believed that a departed parent's soul can reach heaven if that individual has a son to perform the funeral rites, and salvation can be achieved through children who perform ancestor worship.

Children who became orphans due to abandonment, poverty, or conflict provided a basis for authorities to inquire about their welfare. Initially, the nearest relative on either side of the family would quickly take such children into their homes. In this context, informal adoption, which began as a personal and family concern, evolved into a movement for child welfare reform. During the 1920s, this shift in child welfare made it possible for Indians to adopt children who were not related to them.

The fact that India was under British rule at the time may have influenced adoption policies and social reconstruction. In the Madras and Bombay Presidencies, the first Children's Act was passed in 1920, entrusting the state with the obligation of caring for destitute and neglected children. The primary objective of this Act was to provide for the care and welfare of children. Social norms and practices changed as a result of the subsequent changes that accompanied independent India after 1947, and these changes also affected family policy relating to the welfare of children.

The case of Laxmi Kant Pandey v. Union of India (1984) was the case in which the Supreme Court first addressed the matters of adoption. The Apex Court expressed that every child has the right to love and be loved. Only by being raised in a family can a child grow up in a caring environment and gain moral and material stability. However, if the natural parents or anyone else cannot care for the child, or if the child has been abandoned by their family, adoption is the best option for the child's security.

Safeguards Through CARA

In 1986, CARA was established in India to improve the inter-country adoption process. CARA's principal obligation is to regulate and control the entire adoption process. CARA's inter-country adoption guidelines have resulted in greater transparency. Each district was assigned a monitoring committee to assist the court in evaluating whether each child was given an "adequate opportunity" to find a home in India. Subsequently, the Adoption Planning Committee, a group of authorised agencies in each district, was formed (ACA). In recent years, there has been a significant increase in domestic adoption and a decline in inter-country adoption.

Adoption from other countries is generally a phenomenon of the second half of the twentieth century. The numbers and patterns of inter-country adoption have changed over time due to shifting political attitudes in both sending and receiving countries, as well as the international community in general, rather than due to objective needs of children or the desire of prospective parents for children.

Inter-country adoption, also known as transnational adoption, is a type of adoption in which an individual or couple becomes the legal guardians of a child from another country. Couples who wish to adopt a child from another country must meet the legal requirements of both countries — namely, the country in which the prospective adopters reside and the country in which the child is born. Some countries have a framework in place to facilitate inter-country adoption, while others prohibit it entirely.

Inter-country adoption, which involves the transfer of children to parents from one country to another, is an extreme version of what is generally referred to as "stranger" adoption, as opposed to "relative" adoption. Relative adoption occurs when a stepparent adopts their spouse's child, or when a member of a child's extended biological family adopts a child whose parents have died or have become unable or unwilling to parent.

The International Legal Framework

An inter-country adoption is governed by the Convention on the Rights of the Child (CRC) at the international level. The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption 1993, which has been ratified by approximately 90 countries, also regulates it. Adoptive parents are required by Article 21 of the CRC to ensure that the child being adopted has the same level of standards and protection as those who are already living in the case of domestic adoption.

The CRC recognises the significance of biological parents and family in a child's life and highlights the importance of the state assisting them in upholding the child's rights if they are experiencing difficulties. Only when the child is suffering despite these efforts does the possibility of alternative child care enter the picture.

Article 21 further specifies that State parties that recognise and/or permit the adoption system must ensure that the child's best interests are paramount and that the adoption of a child is only authorised by competent authorities. The authorities must give their informed consent to the adoption after obtaining any appropriate advice. State parties must recognise that inter-country adoption may be considered as an alternative means of child care if the child cannot be placed in a foster or adoptive family or cannot be cared for in any other suitable manner in the child's country of origin, and must ensure that the child involved in inter-country adoption has the same protections and standards as children adopted domestically.

According to the Hague Convention, the system of cooperation is to be administered by the Central Authority, which oversees adoption and acts as the primary body for inter-country adoption matters. The Hague Convention also follows the subsidiarity principle, which provides that transnational adoption must be considered only when the child's placement in the country of origin cannot be guaranteed and that, above all, the child's placement in the country of origin must be prioritised.

The Convention also requires the Central Authority to ensure that the child is of a legal age to be adopted, that the child has been informed about the adoption and its implications, that the child's consent has been obtained (with appropriate weight given to the child's perspective and wishes), and that the consent has not been obtained through bribery or payment of any kind. The child's origins, medical history, and information about the child's biological parents should all be preserved, but access to this information should be restricted.

Conclusion

It may be concluded that courts are slowly but deliberately examining every aspect of this subject and establishing guidelines to prevent any legal or personal disturbance for the child or their birth and adoptive parents. Consequently, every organisation and individual involved in the adoption process has a specific responsibility, and they all need to, and must, work together to improve the effectiveness of their efforts.

By one estimate, around 600 to 800 Indian children are adopted by foreign nationals every year, despite allegations that these children are often mistreated after their adoption and that large-scale rackets fraudulently obtain consent from parents whose children are taken away. The absence of robust inter-country adoption rules, along with the government's periodic reluctance to act, has allowed the problem to grow over the years. It has not helped Indian parents who should receive preference in the event of an adoption according to the Supreme Court's guidelines in the Laxmi Kant Pandey (1984) case.

A Public Interest Litigation (PIL) is currently being heard by the Supreme Court, filed by NGOs seeking a ban on foreign nationals adopting Indian children, alleging that many children who are illegally transferred to foreign countries face post-adoption abuse due to the absence of any inter-country adoption rules. The PIL has placed CARA under scrutiny for permitting many children to be taken by wealthy foreign nationals over the past three years.

Better guidelines and rules for inter-country adoption are urgently required. The authorities must conduct thorough reviews of each adoption agency to ensure that they are upholding the protection and other laws that safeguard the child's rights.

It is contended that CARA is permitting such adoptions in disregard of the Supreme Court's guidelines in the Laxmi Kant Pandey (1984) case, one of which was that preference should be given to Indian parents. A standard yet rigorous system must be devised — one that can be readily followed and implemented while keeping the human spirit in mind.