Inter-Country Adoption

India is a signatory to both the Convention on the Rights of Child (CRC) and the Hague Convention; the main legislation governing adoption within the Hindu system is the Hindu Adoption and Maintenance Act, 1956 (HAMA).; and, in addition, the Juvenile Justice (Care and Protection of Children) Act of 2000, also known as JJ Act, along with subsequent amendments in 2006, 2010 and 2015 ensures that adopted children have rights recognized under the Hague Convention. The concept of adoption was not initially defined in JJ Act 2000 but was later included in the 2006 amendment marking a significant milestone. Before this, adoption by non-Hindus was governed by the Guardians and Wards Act, 1890.

The issue of intercountry adoption was brought to light in the case of Rasiklal Chhaganlal Mehta. In this case, the court determined that intercountry adoptions under section 9 (4) of the Hindu Adoption and Maintenance Act, 1956 should be legally recognized under the laws of both involved countries. Adoptive parents must adhere to the adoption laws of their country and obtain necessary permission from the appropriate authorities to ensure the child’s immigration and acquisition of nationality in the adoptive parents’ country without any complications.

Concept of Adoption

Even before the word adoption existed, the world has been practicing it and reaping its benefits for a long time. Adoption is a process that enables a childless person to make somebody else's child their own. Every child has a right to love and be loved and to nurture in an environment filled with affection and love including moral and material security.

This is possible only if the child is brought up in a family. Adoption can be an emotional, social and legal process for both the child and parents. The process involves children who are not be raised by their biological parents to become full and permanent members of the family, complete in all social and legal aspects.

Inter-Country Adoption

Under inter-country adoption, any individual or any couple can become legal parents to any child who is a citizen of a different country. If an Indian citizen is considering overseas adoption, they should meet the eligibility criteria of that country, in addition to meeting eligibility criteria within India. For example, the adoptive parents need to be willing to meet the needs of children requiring adoption through CARA.

Legislative Background

Inter-country adoption is also known as transnational adoption. A few years back, India did not have specific laws for inter-country adoption. In the famous case of Rasiklal Chhaganlal Mehta, Gujarat High Court and the landmark case of Laxmikant Pandey v. Union of India, the Supreme Court issued certain guidelines regarding adoption processes, and, subsequently, CARA (The Central Adoption Resource Authority) was established for the regulation of inter-country adoptions in India.

Later, CARA was designated as the Central Authority for implementation of the Hague adoption convention.
Till 2000, JJ Act’s provisions related to adoption were not very clear and comprehensive but in the 2015 amendment, the Act made the laws regarding adoption process complete and streamlined. The law now clearly states that all inter-country adoption will take place only as per the provision of the JJ Act and adoption regulations framed by CARA.

Principle of Subsidiarity

The basic principle of childcare and protection emphasizes that the child should be raised by their own biological family. But if a child does not have a family, then efforts should be made to place the child in an alternate family-based care for a peaceful and healthy growth. Here adoption may be considered, but while considering adoption, it should be preferred that the child remains in their original social, cultural environment and this is the prime reason why in-country adoption should be the first choice.

If a suitable family cannot be found in the country of origin, inter-country or cross-border adoption may be considered, so that a permanent family can be offered to a child.

What is CARA?

CARA or the Central Adoption Resource Authority is a statutory body under the Ministry of Women and Child Development, Government of India, which was founded in June, 1990.

It acts as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.

What is the Hague Convention?

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption is an international treaty. This treaty was concluded in Hague on 29 May 1993 and came into force on 1 May 1995.
The document of the treaty was drafted by the Hague Conference on private international law and till now the treaty has been ratified by 99 countries and 3 countries have signed it but not yet ratified.

The countries which have ratified the convention are supposed to follow the conditions or the standards as far as possible. Many countries which have not ratified the convention are neither permitted to participate in foreign adoptions of their children nor are allowed to adopt foreign children by their residents.

Purpose of the Hague Convention

The purpose of the Hague Convention is to safeguard the best interests of the adopted child and to prevent illegal, irregular adoptions so that both the families and child are protected at all costs. To achieve this purpose, it has set out clear roles, responsibilities, and procedures regarding inter-country adoptions.

It has also established a system of cooperation between the authorities of the child’s native country and the receiving country. It provides inter-government recognition of the adoption, which has taken place following the Hague convention. Such adoptions shall be held valid by both the countries and no adverse consequences will be faced by the adopted child and the adoptive family.

India has signed and ratified the Hague convention in 2003 and it is also a member of the Hague Conference.
An NRI, OCI, or a foreign prospective adoptive parent who wishes to adopt a child from India must follow the Indian guidelines. These regulations are required to check illegal practices like trafficking, kidnapping, and sale of children and corruption.

Laws Applicable on Inter-Country Adoption in India

All inter-country adoptions, whether it is an adoption of an orphan or an abandon, or a surrendered child, or adoption of a relative’s child, can be done only as per the provisions of the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017 (framed by CARA).

These provisions give effect to the Hague Convention on adoption, to which India is a contracting party and, therefore, obligated to adhere to its conditions.

Eligibility for Intercountry adoption in India

• Both single adopters and heterosexual married couples may adopt.
• A married couple with a combined age of up to 90 years, or a single adopter up to 45 years may apply for a child up to 4 years of age.
• A married couple with a combined age of up to 100 years, or a single adopter up to 50 years may apply for a child between 4-8 years of age.
• A married couple with a combined age of up to 110 years, or a single adopter up to 55 years may apply for a child up to between 8 and 18 years of age.

Procedure for Intercountry Adoption

• Intercountry adoption under the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), initiated after the Adoption (Amendment) Regulations, 2021, follow a standard procedure for eligible Non-Resident Indian or Overseas Citizen of India cardholders adopting Indian Hindu children.
• Hindu prospective adoptive parents residing abroad who wish to adopt an Indian Hindu child born to Indian Hindu parents in India should reach out to an Authorized Foreign Adoption Agency, the Central Authority, or the relevant Government Department in their country of residence.
• The Authorized Foreign Adoption Agency, Central Authority or the concerned Government department sponsors the application of eligible prospective adoptive parents to the Central Adoption Resource Authority (CARA).
• The Central Adoption Resource Authority (CARA) shares the sponsoring letter to from the Authorized Foreign Adoption Agency with the District Magistrate of the child’s residence district.
• The District Magistrate commissions a family background report, which includes essential documents related to the biological parents and the child proposed for adoption. This report is conducted through the District Child Protection Officer or unit outlined in Schedule XXXIV.
• Upon receiving the Family background report, the Central Adoption Resource Authority forwards it to the relevant Authorized Agency /Central Authority or the concerned Government Department in the adoptive parent’s country of residence. This is done to obtain necessary permission under the Hague Adoption Convention or a supporting letter for adoption in countries where the Hague Convention is not adopted.
• Upon receipt of the verification certificate from the District Magistrate regarding the registered adoption deed and the necessary permission under Articles 5 or 17 from the receiving country as stipulated in the Hague Adoption Convention, the Central Adoption Resource Authority (CARA) is tasked with issuing a No objection certificate (NOC) for Hague ratified countries.
• Additionally, CARA issues a Conformity Certificate under Article 23 of the Hague Adoption Convention subsequent to receiving the verification certificate. For countries outside the purview of the Hague Adoption Convention, CARA issues a support letter subsequent to the verification certificate, providing the necessary endorsement for the adoption process to proceed smoothly.

Following this new rule, adoptive families can now inform Indian diplomatic missions two weeks in advance of their intent to travel with the adopted child. During this process, the families must furnish all details of their residence. Hereby, the Indian missions will then monitor the progress and security of the adopted child, instead of CARA and other authorities.

Challenges in Case of Inter-Country Adoption

There are some regulatory challenges in transnational adoption. These regulations are required to check illegal practices like trafficking, kidnapping, exploitation, child labor, and the sale of children. The major object of the amendment is to prevent such illegal activities against children.

Some of the challenges that come with inter-country adoption are –

• Lengthy Process

Due to the Lengthy process of adoption in our country, sometimes it is tough and cumbersome to attain the documents of adoption like NOC, etc. within a limited time for adoptive parents. Hence, to speed up the procedure the Ministry of Woman and Child Welfare has introduced some new guidelines and issued directions to CARA.

• Illegal Practices

Sometimes people who want to be adoptive parents have malicious intentions towards the adoption of a child, and in such cases, after taking them to other countries the child can be the subject of illegal activities like exploitation, child labor, human trafficking, etc. To ensure the safety of children and to prevent such illegal practices the government should proceed with the process of adoption only after conducting a thorough investigation with all required legal proceedings.

• Post Adoption Identity Problem

In transnational adoptions, the procedures are generally onerous and lengthy. Adoptive parents should complete the entire adoption procedure here in the child’s native country as well as their own country by following all the regulations of adoptions of the countries involved. In a situation where they fail to complete the adoption process of a foreign country after taking the child abroad and the guardian does not turn out to be the adoptive parents of the child, the condition can significantly worsen for the child. Hence, the Child Protection Authorities, CARA, and now the Indian diplomatic missions ought to ensure the safety of adopted children every time.

• Post Adoption Negligence

In such inter-country adoptions, it is very tough to monitor the child custody in hands of adoptive parents regularly therefore, there is a high possibility of negligence by the parents towards adopted children. Hence, the government seeks the recommendation of adoptive parents by a child welfare agency or a social agency that is recognized by the government of that country in which the foreign couple resides, to ascertain the security of the child.

Way Forward

Moving forward and offering suggestions, international adoption stands as a transformative journey for both the adopting parent and the child, promising a secure future and better care. However, these challenges and complexities inherent in international adoption can be effectively addressed with a sense of responsibility. Here are several recommendations:

• Cultural Socialization: This encompasses how parents navigate ethnic and racial dynamics within the family, including the transmission of cultural values, beliefs, and behaviors to the child. Adoption Agencies and authorities should thoroughly assess the mental preparedness of the prospective parents, particularly in cases of transnational, interracial or intercultural adoption. Providing training and guidance will equip parents with necessary tools to responsibly nurture and support the child.
• Community Sensitization Efforts: Institutions such as schools, hospitals and colleges should play an active role in promoting awareness and understanding of racial differences among students and staff. Moreover, all individuals involved in the intercountry adoption process must undergo comprehensive sensitization programs to ensure strict adherence to established guidelines and protocols. This will guarantee that the principles governing intercountry adoption are upheld with utmost sincerity and dedication.  

CONCLUSION

There has always been a tussle between the two Acts and their legitimacy. The recent legislative modifications bring provisions with regards to adoption via introducing more universally acceptable adoption law instead of the earlier rigid Hindu Adoptions & Maintenance Act, 1956 and Guardians of the Ward Act, 1890.

There were many challenges under HAMA regarding the inter-country adoption process. It was an arduous and laborious process to get a NOC from the court when adoptive parents got a job in a different country and because of the delays in NOC, it was difficult for them to shift in time. The Ministry of Woman & Child Welfare stated that they have made this process easier by transferring the NOC authority from the court to CARA, and they can further ensure the other monitoring factors for child custody as well.

Adoption Amendment Regulations, 2021 streamlines adoption procedures for orphans, abandoned and surrendered children, and the existing Central Adoption Resource Authority. Also, as per the guidelines of the Ministry, we are looking forward to the new framework regulations under Hindu Adoptions and Maintenance Act by CARA. This legislative framework would certainly bridge the gap between different adoption laws in India and will harmonize the law regarding inter-country adoption.