Introduction
With increasing modern families, the concept of adoption can be blessing for a prospective adoptive parent(s). If you are a foreign national according to Indian laws, to share your home with a child from a different cultural background, though sounds nerve wrecking, can be a wonderful learning experience. All you need is open hearts and the nudge of right legal information.
The adoption of a child from another nation is known as inter-country adoption. Inter-country adoption has been prevalent in the world since 1940s, to protect children who were orphaned by the destruction of World War II. By the 1980s, there was a serious need for domestic and international legislations to ensure children were adopted into safe and healthy families.
| In 2003, Government of India ratified the Hague Convention and CARA was the designated Central Authority. With the ratification, all parties to the Hague Convention were allowed adopt children from India. |
Principal Features of the Hague Convention
The Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 (“Hague Convention”) provides the following guidelines for authorities to keep in mind to ensure an adoptable child’s safety through the adoption process:
Best interests of the child are paramount
Adoptions must occur in the best interests of the child and affirm their fundamental rights. States must preserve information about the child and their parents, thoroughly evaluate the prospective adoptive parents, match the child with a suitable family and impose additional safeguards where needed.
Subsidiarity Principle
States understand that the child should be raised in the most familiar environment. The first test of this is whether the child can be adopted within the birth or extended family. If not, whether the child can be adopted for permanent care in the country of origin. Utmost consideration must be given to national solutions. If the child cannot be placed in a home sharing their own culture, inter-country adoption can be considered, provided it is in the child’s best interests. If all fails, institutional care should be the last resort for a child without family.
Safeguards to protect children from abduction, sale & trafficking
A major concern with respect to inter-country adoption is where the child could end up post adoption. Therefore, states must establish safeguards protocols to confirm the prospective adoptive parents are safe and that they shall not lead the child into abduction, sale, and trafficking. Several times birth families face undue pressure to exploit the children for wrongful financial gain. The Hague Convention ensures only children in need of a family are adoptable.
Competent authorities, Central Authorities & Accredited Bodies
The Convention requires that only competent authorities should perform Convention functions. Competent authorities may be Central Authorities, public authorities including judicial or administrative authorities, and accredited bodies.
CARA
In 1986, the Supreme Court of India passed a landmark judgement – Laxmi Kant Pandey v. Union of India, where several guidelines with respect to adoption were established. By 1990, the Central Adoption Resource Authority (CARA) was established to regulate, monitor, and promote adoption of orphaned, abandoned, or surrendered children, with the intent to find nurturing homes for children in need.
In India, CARA is the appointed Central Authority imposed with certain general obligations, such as: co-operation with other States’ competent authority through exchange of information concerning intercountry adoption, the elimination of any obstacles to the application of the Convention, and a responsibility to deter all practices contrary to the objects of the Convention.
Adoption Process
Eligibility Criteria
When adopting from India, foreign nationals, whether living in India or abroad, would be governed by the Adoption Regulations, 2017 (the “Regulations”), formulated under the Juvenile Justice Act, 2015, and must foremost fulfil the general eligibility requirements as per Regulation 5, stated in brief below:
(1) The prospective adoptive parents shall be physically, mentally, emotionally, and financially capable, they shall not have any life-threatening medical condition and they should not have been convicted in criminal act of any nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and biological children, can adopt a child subject to the following, namely:
(a) in case of married couples, the consent of both the spouses must be attained;
(b) a single female can adopt a child of any gender;
(c) a single male is not eligible to adopt a girl child.
(3) a married couple must have at least two years of stable marital relationship, except in the cases of relative or stepparent adoption.
(4) The minimum age gap between the adoptable child and either of the prospective adoptive parents shall not be less than twenty-five years and it shall be calculated on the date of registration. The maximum age must fulfil the following criteria:
| Age of the child |
Maximum composite age of prospective adoptive parents (couple) |
Maximum age of single prospective adoptive parent |
| Upto 2 years |
85 years |
40 years |
| Above 2 and upto 4 years |
90 years |
45 years |
| Above 4 and upto 8 years |
100 years |
50 years |
| Above 8 and upto 18 years |
110 years |
55 years |
Adoption Procedure
Chapter IV of the Regulation states in detail the process with respect to adoption of Indian children by foreign prospective adoptive parents (Foreign PAPs), whether living in India or abroad. However, within these regulations, Foreign PAPs do not receive the same treatment as NRIs and OCIs, due to the subsidiarity principle discussed above.
Foreign PAPs must approach the Authorised Foreign Adoption Agency (AFAA) or CARA or Foreign Government department concerned in the country of residence, for preparation of their Home Study Report and for their registration on the CARA (https://cara.wcd.gov.in/#), with list of documents according to Schedule VI.
| In case of non-Hague countries, Indian mission abroad can process the applications of non-resident Indian prospective adoptive parents. |
What is a Home Study Report?
A “Home Study Report” contains details of the prospective adoptive parents, inclusive of their social and economic status, family background, description of home and its environment, and their health status as per the format in Schedule VII of the Regulations. However, Schedule VII only states Foreign PAPs residing in India, leaving Foreign PAPs living abroad in a grey soup.
What are the necessary documents besides the Home Study Report?(1) Photograph of the applicant(s)
(2) Passport (Male PAP)
(3) Passport (Female PAP)
(4) Birth Certificate (Male PAP)
(5) Birth Certificate (Female PAP)
(6) Proof of Residence
(7) Proof of income of last year (e.g., salary slip/income certificate issued by Government department /Income tax return)
(8) Certificate from a medical practitioner certifying that the PAPs do not suffer from any chronic, contagious, or fatal disease and they are fit to adopt.
(9) Police Clearance certifying the antecedents of male PAPs.
(10) Police Clearance certifying the antecedents of female PAPs.
(11) Copy of divorce decree/Declaration from the competent court or affidavit on oath pertaining to divorce, in case of divorce governed by personal law where decree of divorce is not mandatory/death certificate of the spouse (if applicable)
(12) Undertaking from the relative in case of single PAP, if applicable
(13) 1st Reference Letter from a respected member of the society known to the PAPs.
(14) 2nd Reference Letter from a respected member of the society known to the PAPs.
Other documents to be uploaded after referral:(15) Consent of the older child/children in the family (more than five years of age)
(16) Consent of the older child to be adopted
(17) Permission of the receiving country as per Article 5 or 17 of the Hague Adoption Convention (applicable in case of Hague ratified country).
(18) In case of PAPs residing abroad, undertaking from the PAPs to allow personal visits by the representative of the Authorised Foreign Adoption Agency (AFAA) or CA (Central Authority) or concerned Government department or Indian Mission, for follow-up of the progress of the child as required under the Regulations.
(19) Undertaking from the Authorised Foreign Adoption Agency to provide progress report of the child for a period of two years and make alternate arrangement in case of disruption.
Post scrutiny of documents at the respective authority and verification of age eligibility, the process of adoption shall commence with profiles of children referred to the PAPs, who must be reserved in 96 hours to ensure that the PAPs do not lose their seniority in the adoptive parents’ list. The Home Study Report too has a limited validity period before it expires, and the PAPs must go through the evaluation process again.
There exists another period of thirty days to review the child’s medical and child study report. The PAPs also have the option to visit the child through the Specialised Adoption Agency for review of the medical report by a practitioner of their choice.
PAPs must further ensure they receive a No Objection Certificate from CARA and letter of approval or permission of the receiving country to avoid any glitches through the adoption procedure. Post completion of the documentation formalities, the Foreign PAPs must receive an Adoption Order along with Conformity certificate, birth certificate, among other legal documents to affirm the adoption.
The specialised foreign adoption agency shall follow up with the PAPs and the adopted child for two years to study the progress of the child in their new home. The PAPs may use this opportunity to solve any concerns they may be facing with respect to their bonding or growth of the child.
Delays in Adoption
The legal procedures with respect to adoption and its numerous technicalities can prove tedious and emotionally taxing. Some adoptive parents have also faced a lack of support from services while applying for adoption. Delays and uncertainty in referrals, lack of information and transparency from CARA - all this can have a mental, financial, and emotional impact on adoptive families. Estimates show that it can take almost three years to adopt a legally available child.
Another reason for delays is that the number of adoptive parents in the system are substantially higher than adoptive children. There has been an increase in orphans due to covid, yet we see a decline in the number of children coming to adoption agencies.
This may be because not all Child Care Institutions (CCIs) in India are registered with the law. Children in unregistered institutions are vulnerable to poor care, physical violence, sexual abuse, and trafficking. In some cases, even children who are listed by agencies do not have complete paperwork for years and are not declared legally free for adoption. There is clearly a lack of active action to ensure more orphans are declared free to adopt.
Conclusion
The adoption procedure can be extremely tedious, lengthy, and perplexing for already anxious PAPs. Documents such as the Home Study Report and NOCs too are heavily time consuming. However, it is important to take time with this step for several kids end up trafficked, abused or returned into the system. The process which needs a closer look is declaring the children legally free for adoption so that they do not spend years in the system, with no scope for a better future.
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