Adoption is the legal process through which the adopted child becomes the lawful child of the adoptive parents along with all the rights, privileges and responsibilities that are otherwise ascribed onto a biological child. Adoption laws in India are governed under a secular and civil law governing adoption i.e. the Juvenile Justice Act, 2015 which permits adoption across the country, notwithstanding the religion of either the adoptive child or the prospective adoptive parents or the country of residence of the prospective adoptive couple.
The other limb of the legal system governing adoption are the various personal laws of each religion, the major codified law being the Hindu Adoption and Maintenance Act, 1956 which applies to anyone who is Hindu.
The Juvenile Justice Act, 2015 envisages the creation of a Central Adoption Resource Agency (CARA) and the same has been granted with the power to regulate inter-country adoptions, be that under the Juvenile Justice Act or the Hindu Adoption and Maintenance Act, and continues to govern the broader structure and outline of the adoption process through the provisions stipulated under the Adoption Regulations, 2021.
Juvenile Justice Act, 2015
The Juvenile Justice Act, 2015 provides for the practice and procedure relating to the adoption of children in need of care and protection and contemplates inter-country adoption.
A Central Adoption Resource Agency (“CARA”) has been formulated with an aim to ease and standardise and regulate the process of both intra & inter-country adoptions and also act as a nodal agency overarching the process of adoption and maintaining a database of prospective adoptive parents as well as prospective adoptive children.
Eligibility for prospective adoptive parents
Any couple who is Indian resident or non-resident, OCI Cardholder or ‘foreign parents living in a country that is signatory to the Hague Adoption Convention’ are entitled under the provisions of the Juvenile Justice Act, 2015 for adopting an Indian Child, subject to fulfilling the following conditions:
- Should be physically, emotionally, mentally and financially able and competent and must not have any critical medical condition that may be construed as life-threatening.
- Married spouses having at least 2 years of stable marital relationship, whether or not they have a biological son or daughter with the consent of each spouse.
- The composite age of the prospective Couple should be within the prescribed limited under the Adoption Regulations 2022 which falls between the range of 85 years to 110 years.
- Couples that already have two or more children are not permitted to adopt children and may only be considered in case of a child with special needs or children that are hard to place otherwise
- Consent of both the prospective adoptive parents to to move forward with the process.
Eligibility in case of single adoptive parent
- Single female of 25 years or order in age than the prospective adoptive child can adopt a child of any gender.
- Single male of 25 years or above is only eligible for adopting a male child.
- Maximum age of the prospective parent must be as per regulation 4 of the Adoption Regulations 2022 which ranges from 40 to 55 years, depending on the age of the prospective adoptive child.
Adoption of a Child from a Relative
The Juvenile Justice Act also envisages within its ambit the adoption of a child from a relative by another relative and is governed by the Adoption Regulations 2022, and the same is permissible irrespective of the religion and faith. In addition to the aforesaid, the criteria of maximum age of the prospective adoptive parents are not applicable in case of adoption by relatives.
Procedure
- In case of in-country adoption by relatives, the prospective adoptive parents are mandated to register themselves with the designated portal along with the necessary documents, including the written consent of the biological parents.
- After this, a verification for the prospective adoptive parents is done by the District Child Protection Unit.
- The State Agency refers the matter to CARA for necessary orders, whereafter a pre-approval certificate is issued by the State Agency.
- The District Child Protection Unit scrutinizes the application and places the same before the concerned District Magistrate of the ordinary residence of the concerned child along with the necessary documents for seeking an adoption order in the matter.
- The District Magistrate in turn, must satisfy himself that the consent of the child has been obtained in case the child is 5 years or above, that no consideration, reward or payment has been agreed in lieu of the adoption, among other considerations.
- Once an adoption order is obtained, a copy of the same is uploaded on the designated portal for notice of the same to the prospective parents.
Inter-country Adoption
Inter-country adoption is permissible both under the Juvenile Justice Act, as well the Hindu Adoptions and Maintenance Act, and the procedure and eligibility for both are determined as per the Adoption Regulations 2021 as framed by CARA.
Ordinarily, the Prospective adoptive parents have to approach the Authorised Foreign Adoption Agency, or the Central Authority concerned for preparation of their Home Study Report which provides details including social, family background, health status, economic status, , description of home and atmosphere . After this, they are registered on the Designate Portal.
- Profile referral and scrutiny: Upon scrutiny of the Home Study Report and other documents, the eligibility and suitability of the prospective parents is determined, whereafter profiles of children are shared with them.
Upon the child being reserved by the prospective parents, they may visit the Specialised Adoption Agency to see the child in person.
- Pre-adoption foster care: Upon furnishing a requisite undertaking, the prospective parents are permitted to temporarily take the child in pre-adoption foster care within India after issuance of No Objection Certificate by the concerned Authority while the adoption order is pending.
Certificate under Hague Adoption Convention
In cases of inter-country adoptions, it is crucial that the necessary approvals and permissions are undertaken from the receiving country to ensure that the adoption process is recognized and legally valid in the receiving country where the child is to be prospectively relocated.
Issuance of no objection certificate by CARA for all inter-country adoptions
The 2022 Adoption regulations mandate that a certificate of no objection must be issued by CARA, inter-alia certifying the adoption of the child and the same must be done within a period of 10 days from receiving certificate as mandated under the Hague Adoption Convention from the receiving country and forward the same to the Authorized Foreign Adoption Agency.
- Adoption Order: Upon filing of an application by the Specialised Adoption Agency, an adoption order is passed by the District Magistrate within a period of two months from the date of filing the application. The aforesaid provision is the same for both resident Indians, as well as non-resident Indians, OCI Card holders and Foreign Nations.
- Final custody: Upon issuance of adoption order, passport and visa to the child, the prospective adoptive parents receive the final custody of the child from the Specialised Adoption Agency.
Follow-up on Child in case of NRI/OCI Cardholder and Foreign adoptive parents
The progress of the child is reported by the Foreign Adoption Agency/Central Agency/Indian Diplomatic mission for two years from the date of arrival of the Child in the receiving country as follows:
i. Quarterly for the first year
ii. Semi-annually for the second year
No right of choice: It has been recently laid down by the High Court of Delhi that there is no inherent right of choice upon the prospective adoptive parents of which child to adopt.
Inter-country Adoption by A Relative
- The concerned Authorised Foreign Adoption Agency is mandated to conduct and furnish a home-study report along with the relevant documents pertaining to the prospective adoptive parents, which is uploaded on the designated portal.
- The same is then forwarded to the District Child Protection Unit concerned and a family background report is prepared for the proposed child, along with the required documents.
- The report is in turn sent to the Authorized Foreign Adoption Agency, whereafter the procedure to obtain permission from the receiving country in terms of Article 5 or 17 of the Hague Adoption Convention is carried out.
- After receipt of such certificate under the Hague Adoption Convention, CARA proceed to issue a No-Objection Certificate upon satisfying itself that all the formalities have been duly adhered.
- Thereafter, an appropriate application is to be filed with the concerned District Magistrate for issuance of an adoption order, and upon due satisfaction and scrutiny, a formal adoption order is passed.
Adoption by Indian Parents Having Permanent Residence of Another Country
In such cases the home study is to be carried out by the adoption authority of the receiving country and for their online registration on the designated portal.
If the prospective adoptive parents are temporarily residing in India, they are required to approach the embassy or high commission of the receiving country in India for permitting them to go ahead with the adoption process whereafter they are registered on the Designated Portal for adoption.
Inter-country Adoption Under Hindu Adoption and Maintenance Act
Eligibility
Any non-resident India or an Overseas Citizen of India Card holder may seek to more an application for inter-country adoption under the provisions of the Hindu Adoption and Maintenance Act, so long as the requirements under the said Act are satisfied, namely:
- A person who is a Hindu by religion in any of its forms, and including Buddhists, Jains or Sikhs
- Any major male or female having sound mind
- Must take consent of the other spouse
- The prospective child must be under 15 years of age
Procedure
Hindu Prospective Adoptive parents desirous of adopting a Hindu child under the Hindu Adoption and Maintenance Act are regulated as per the procedure laid under the Adoption Regulations 2021 and permit the adoption of children by Non-resident Indians or OCI Card Holders who live outside the country.
- In case of Hague ratified countries, the prospective adoptive parents residing abroad may contact the Central Authority or an Authorised Foreign Adoption Agency which shall then sponsor the application of eligibility and suitability of adoptive parents to CARA.
- This information is then advanced to the District Magistrate and the District Child Protection Unit to child’s habitual residence.
- Thereafter, a family background report is prepared by the District Child Protection Officer which is submitted to the Authorised Foreign Adoption Agency through CARA for issuance of permission.
- Upon inquiry by the District Magistrate a verification certificate is forwarded to CARA. Upon receipt of the verification certificate, registered adoption deed and permissions from the receiving country, CARA issues a no-objection certificate and the adoption process is concluded.
Adoption Directly from the Biological Parents – A Limited Exception
The provisions of the Juvenile Justice Act, 2015 do not permit any adoptions to take place outside the process as set in place and routed through CARA, either through the Act or the Hindu Adoption and Maintenance Act, in cases of inter-country adoption.
The only instances wherein the prospective adoptive couple is permitted to route the process directly through the biological parents is in cases of adoption through relatives, so far as adoptions under the Juvenile Justice Act are concerned.
On the other hand, adoptions under the Hindu Adoptions and Maintenance Act may be done by way of registering of adoption deed with the consent of the biological parents, subject to fulfilment of other eligibility criteria as mandated under the Act. Therefore, it is not a requirement that the adoptive child must necessarily be identified through a relative in cases of adoption under the Hindu Maintenance and Adoption Act.
Challenge of Unwarranted Delay & Difficulties – The Way Forward
While there is no denying that the adoption process has been largely regulated and regularized by legislative efforts and the Adoption Regulations 2022 issued by CARA, however, the practical enforcement of the enactment has brought to surface the tardy, taxing & exhausting nature of the process.
The Courts are conscious of such inordinate delays and have remarked on the frustration of the very objective of the Act on account of such procedural delays and long waiting periods for the adoptive parents, which ultimately deters and impedes the growth of children that need care and protection and require to be placed with families.
Any aggrieved prospective parent may seek to move the constitutional courts in case of any procedural, or any other difficulty and challenge being faced on account of inaction on part of any of the functionaries involved in the process and seek appropriate directions upon the concerned and ensure that the process is concluded.
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