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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 Non-
Governmental 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. Indian Placement Agencies - 73 (in various states)
2. Foreign Placement Agencies Enlisted - 254 (in foreign countries)
3. Voluntary Co- ordinating Agency in India - 13 (in various states)
4. Scrutiny Agencies - 13 (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: shenoyas2006@yahoo.com

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.