INDEX

INTRODUCTION ----------------------------------

JURISPRUDENCE ----------------------------------

INDIAN CONSTITUTION ----------------------------------

INTERNATIONAL CONVENTIONS AND DECLARATIONS ----------------------------------

PREVAILING INDIAN SITUATION AND CONDITIONS ----------------------------------

SUSTAINABLE DEVELOPMENT ISSUES ----------------------------------

CONCLUSION ----------------------------------

BIBLIOGRAPHY -----------------------------------
INTRODUCTION:

Adoption is perhaps the best alternative for a child to be a part of a permanent family and inter-
country adoption can offer that advantage to a child for whom a suitable family cannot be found
is his or her Country.

An inter-country adoption is seen as one that involves a change in the childs habitual country of
residence, whatever the nationality of the adopting parents. Most countries define the rights of
children in their constitutional mandate. Children are bundles of joy and innocence and signify
eternal optimism in a human being. They always provide potential for human development. They
should be given utmost care and protection and should be raised in the best of surroundings as
they are the future of the civilization altogether. Neglecting children will actually be a loss to the
society as a whole. If children are deprived of their childhood, the nation gets deprived of the
potential human resources for social progress, economic empowerment, peace and order, social
stability and good citizenship amongst other things.

In the context of Private International Law, adoption of a child becomes relevant when it involves
interaction between nationals of different states. In such situations, the institution of adoption
becomes international, crossing the borders of the national legislations. Inter-country adoptions
are defined as the adoption of a child by a person of another country. Inter-country adoptions are
often a more viable choice than domestic adoptions for many families, wanting to adopt a healthy
happy infant. Inter-country adoptions from developing countries take place primarily because the
demand for children in developed countries is increasing and the population explosion problems
in developing countries.

An inter-country adoption takes place when a person adopts a child from a different country
through legal means and brings the child to the home country to live permanently. Inter-country
adoption results in the legal transfer of parental rights from birth parents to adoptive parents.

In inter-country adoption, adoptive parents and children meet across lines of difference involving
not just biology, but also socio-economic class, race, ethnic and cultural heritage, and nationality.
Typically the adoptive parents are relatively privileged white people from one of the richer
countries of the world, and typically they will be adopting a child born to a desperately poor birth
mother belonging to one of the less privileged racial and ethnic groups in one of the poorer
countries of the world.

International adoption has grown significantly over the last few decades, with many thousands of
children now crossing national borders for adoption each year. International as well as domestic
laws have become generally more sympathetic to international adoption than they have been in
the past. But the controversy surrounding such adoption continues, and makes its future
uncertain.

This project attempts to discuss the issues and problems associated with Inter-country adoption.
These include child-trafficking, loss of culture and identity, exploitation of the child, etc. In an
Inter-country adoption, when a child is adopted, the child moves from one nation to a completely
different nation, resulting in the loss of cultural and national identity of the child and related
issues.

JURISPRUDENCE :

Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus and
by custom amongst a few numerically insignificant categories of persons. Since adoption is the
legal affiliation of a child, it forms the subject matter of personal law. Muslims, Christians and
Parsis have no adoption laws and have to approach the court under the Guardians and Wards
Act, 1890. They can take a child under the said Act only under foster care. Once a child under
foster care becomes major, he is free to break away all his connections. Besides, such a child
does not have legal right of inheritance. Foreigners who want to adopt Indian children have to
approach the court under the aforesaid Act. In case the court has given permission for the child
to be taken out of the country, adoption according to a foreign law takes place outside the
country.

Adoption can only be recognized if it is permitted by statute of is recognized by custom.

Customary Hindu Law permitted adoption, and adoption among Hindus is now regulated by
statute. There is no other statute in India on the subject. Under customary Hindu Law, though
adoption was always permitted, only a man could adopt, though, in certain areas, a widow also
could, and only a son could be adopted.

The law is now contained in the Hindu Adoptions and Maintenance Act 1956, whose provisions
override all rules of customary law. The Act extends to the whole of India, except Jammu and
Kashmir and applies to Hindus, that is, to Hindus as well as Buddhists, Sikhs and Jains. Unlike
customary Hindu law, under the statute, females can also adopt, and a girl can also be adopted,
but the stature lays down certain conditions for a valid adoption.

In India, no Christian or Parsi can adopt, as no statute permits it, and there is no custom enabling
them to do so. Adoption is not known in customary Mohammedan Law. Certain statutes relating
to certain areas permitted adoption. In certain localities, custom permitted Muslims to adopt; the
custom was not abrogated by the enactment of the Muslim Personal (Shariat) Application Act
1937, as adoption did not fall within the ambit of section 2 of that Act.

There have been numerous examples of couples living in foreign countries desiring to adopt
babies in India. As no statute has been enacted in India to regulate such adoptions, the Supreme
Court has laid down certain guidelines to be followed by courts when an application is made by
parents living outside India to adopt an Indian child.

Indian courts have recognized adoptions upheld by foreign courts. As to whether a person is or is
not the adopted son of another is a matter of status, and as status in Indian law is dependent on
the domicile of the parties, Indian courts would ordinarily recognize such an adoption applying
the law of the domicile of the father of the person and perhaps the law of the domicile of the
person adopted. If such recognition is granted, a person so recognized should be entitled to
succeed to property as a natural child.

Indian courts can be guided by the rules of English courts as also the principles laid down in the
Hague Convention on Intercountry adoptions. That India has not signed or implemented the
Convention should not preclude an Indian court from considering its provisions to enable it to do
justice.

Historically, adoption was not a popular or traditional concept in India, and the few adoptions that
were permitted were limited to a child within the extended family. These adoptions were
governed by the Hindu Adoptions and Maintenance Act of 1956. The Act prohibited non-Hindus
(including foreigners) from adopting Indian children within India.

While foreign nationals were previously not permitted to adopt Indian children in India, the
Government of India introduced a provision for legal guardianship in the late 1970s. A foreign
national is now permitted to apply for and obtain legal guardianship of a child who is declared by
the courts to be destitute and abandoned. The child may then be taken out of India to be
adopted, and must be adopted within two years. A new law, the Juvenile Justice (Care &
Protection of Children) Act of 2000, allows foreign nationals to adopt children in India irrespective
of their religion.

INDIAN CONSTITUTION

The Constitution of India recognises the rights of all the parties involved in an adoption. The most
commanding article of the constitution grants equality to every citizen and shows the intent of the
constitutional framers giving equal rights to every citizen. Though it can be contained that
children wouldnt come under the purview of this article as they are not recognized as citizens,
broadly looking into the citizenship provisions it can be lined out that they also come under the
purview of this article.

Under Article 15(3) of the Constitution of India, women and children are protected with special
provisions. This explains the purpose of the constitution makers that the rights of women and
children should be well-defined and they should be given preference.
Article 21 of the Constitution of India enshrines the essential rights of life and liberty. Further,
Article 21A which has been created by the 91st Amendment Act gives free and compulsory
education for children between the ages of 4 to 14 years.

Further, Article 51(c) of the Constitution of India provides that the State shall endeavour to foster
respect for International Law and Treaty obligations in the dealings of organized people with one
another. Article 51 has been relied upon by Courts to hold that various International Covenants,
Treaties etc., particularly those to which India is a party or signatory, become part of Domestic
Law in so far as there is no conflict between the two. Along these lines, Article 253 of the
Constitution of India empowers the Parliament to enact any legislation giving effect to foreign
treaties and conventions.

INTERNATIONAL CONVENTIONS AND DECLARATIONS

On the international front, law has moved generally in the direction of legitimating international
adoption, and of providing general guidelines for its appropriate conduct. The first truly significant
international documents recognizing international adoption were the UN Declaration on Social
and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference
to Foster Placement and Adoption, National and International, in 1986 and the UN Convention on
the Rights of the Child in 1989. However they stopped short of fully legitimating such adoption. In
1993, a multilateral treaty called the Hague Convention on Inter-country Adoption was ratified by
a number of countries. This constitutes the most significant legitimization of international
adoption to date, making such adoption a preferred option for children over institutional care in
their home countries, although indicating that adoption in-country should be preferred over
adoption abroad. The Convention also includes some basic substantive rules designed to ensure
that birth parents and their children are protected against wrongful attempts to separate them
through, for example, use of financial payments to induce the surrender of parental rights, or
coercion as in kidnapping. And it includes some basic procedural rules designed to ensure
obedience to the substantive rules, such as requirements that each country create a Central
Authority to implement the Convention. The Convention governs only those adoptions that take
place between countries that have ratified it.

THE DECLARATION ON THE RIGHTS OF THE CHILD, 1959

The 1959 declaration on the rights of the child was drafted on the lines of the declaration of
human rights. The main idea behind this declaration was that every child should have a happy
childhood and enjoy various rights and freedoms for his own good. This, in a way is also the idea
behind adoption where a child who is destitute and deprived is given a happy home and a loving
family.

CONVENTION ON THE RIGHTS OF CHILD, 1989

The 1989 Convention on the rights of child discusses the safety of a child and entrusts the State
with the duty for the betterment of the child. This convention emphasises that every action taken
by the state, parents or guardians of the child should be in the best interest of the child. Article 21
of the Convention recognizes and permits adoption of children for their best interest. The
Convention also states that adoption should be facilitated by competent authorities only. There
should be proper measures to ensure that adoption (either Inter-country or within the country)
takes place for the benefit of the child. Adoption should never depend on financial gain. It is
essential that every state has proper legislative framework for such adoptions with appropriate
bodies involved in it.

HAGUE CONVENTION, 1993

The 1993 Hague Convention on Protection of Children and Co-operation in respect of Inter-
country adoption is an international system to regulate adoption and ensure the safety and
welfare of children. The purpose of the Convention is to establish safeguards to ensure that Inter-
country adoptions take place in the best interests of the child and with respect for his
fundamental rights as recognised in international law; to establish a system of co-operation
among contracting states in order to ensure that those safeguards are respected, and thereby
prevent abduction, sale of, or traffic in children, as well as to secure the recognition in
Contracting States, of adoptions made in accordance with the Convention.

The Convention applies where a child who is habitually resident in one Contracting State (the
state of origin) has been, is being, or is to be moved to another Contracting State (the receiving
state), either after adoption in the state of origin by a person or persons habitually resident in the
receiving state, or for the purpose of such an adoption in the receiving state or in the state of
origin.

There is no express mention of choice of law in the 1993 Hague Convention. Instead, the
Convention sets out the reciprocal obligations resting, respectively upon the authorities in the
state of origin and in the receiving state. The successful operation of the Convention depends
largely on the effective collaboration between the two states.

Article 4 of the Convention determines the duties of the state of origin. It provides that a
Convention adoption can proceed only if the competent authorities in the state of origin have
established that the child is adoptable; determined, after possibilities for placement of the child
within the state of origin have been given due consideration, that an Inter-country adoption is in
the childs best interests; ensured that the persons, institutions and authorities whose consent is
required for the adoption have given their informed consent, without coercion or financial
incentive, and, in particular, that the consent of the childs biological mother, where required, has
been given only after the birth of the child; and ensured having regard to the age and maturity of
the child, that he has been duly counselled and informed of the effects of the adoption, that
consideration has been given to his wishes and opinions, that his consent, where required, was
duly informed and freely given, not induced by payment or compensation of any kind.

Article 5 determines the duties of the receiving state, providing that a Convention adoption can
proceed only if the competent authorities in that state have determined that the prospective
adoptive parents are eligible and suited to adopt, and have been counselled as may be
necessary, and the child is or will be authorised to enter and reside permanently in the receiving
state.

The effective operation of the Convention is dependent upon co-operation and co-ordination
among the designated Central Authorities of Contracting States. The procedural requirements of
Inter-country adoption are contained in Chapter IV of the Convention. Article 14 states that
persons habitually resident in a Contracting State, shall apply to the Central Authority in the state
of their habitual residence. Prospective adopters are not able to apply directly to the Central
Authority of to any other public authority or accredited body of the state of origin of the child.

When the application is presented to the Central Authority of the receiving state, the Central
Authority must ascertain whether the prospective adopters are eligible and suited to adopt, as is
required by Article 5(a) of the Convention and prepare a report for transmission to the Central
Authority of the state of origin. Preferences of the prospective adopters should be mentioned in
general terms e.g. religion, age, special needs etc. in accordance with parenting skills and
experience. Reference must not be made to a specific child in particular. If the Central Authority
of the state of origin is satisfied that the child is adoptable, it shall prepare a report including
information about the childs adoptability, identity, background, social environment, family history,
medical history and special needs, if any.

Article 28 of the Convention makes it clear that the Convention does not affect any law of the
state of origin which requires that the adoption of child habitually resident within that state takes
place in that state, or which prohibits the childs placement in, or transfer to the receiving state
prior to adoption. It is not the aim of the Convention to unify the substantive laws of Contracting
States with regard to adoption.

In keeping with the objectives of the Convention, it is expressly stated that no-one shall derive
improper financial or other gain from an activity related to Inter-country adoption; only proper
costs and expenses, including reasonable professional fees, may be charged or paid.

Under the 1993 Convention, Central Agencies have a very important role to play. Their functions
include, inter alia, execution of the Convention and overseeing the Inter-country adoption. In
India, Inter-country adoption is administered by CARA which stands for Central Adoption
Research Authority, which was set up by Supreme Court after realising that ICA was leading to
massive trafficking of children, it was not directly to execute the 1993 Convention. CARA has
pointed out certain loopholes in the Indian adoption system. CARA specifies eligibility conditions,
processing steps, documentation, costs, court processes, foster care conditions, issuance of
birth certificates and post adoption follow-ups. In India, millions of children live in conditions of
poverty and destitution and without any family. While adoption is a viable solution for this
problem, in the absence of a common adoption code, it will be very difficult to ascertain that the
purpose of the adoption is proper and not malafide. The uncertainty of laws governing adoptions
in India as well as Inter-country adoptions involving India, the problem of conflict of laws arises. It
is important that the Legislature enact a statute regulating adoption laws and bringing them at par
with international adoption standards.

PREVAILING INDIAN SITUATION AND CONDITIONS

The Hindu Adoptions and Maintenance Act, 1956 is the only statute governing adoption of
children in India. The ambit of this statute is confined to Hindus in India and hence there is a
vacuum regarding adoption of or by other communities in India. The Guardianship and Wards
Act, 1890 can indirectly be invoked by other communities to become the guardians of a child
during the childs minority. This statute does not deal with adoption as such but mainly deals with
guardianship. Further, the Juvenile Justice (Care and Protection of Children) Act, 2000 provides
for the adoption of abandoned and abused children by people of all communities.

Adoption of Indian children by foreign nationals is still an issue surrounded by some controversy.
In foreign countries, there are many cases of Indian orphans being given a secure and loving
home. However, at the same time, there have been cases where adoption has been used as a
front to abuse the child by treating them like domestic servants, beggars and even for human
trafficking. In Laxmi Kant v. Union of India (1) (2) (3), the Supreme Court formulated and laid
down the guidelines for inter-country adoptions. Subsequently, the Government of India laid
down guidelines for inter-country adoption in 1995. In K S Council for Child Welfare v. Society of
Sisters of C S G Convent, the validity of adoptions was challenged as the same was given to
foreign parents in violation of the guidelines. The Supreme Court held that the guidelines should
have been followed, but since the children were already abroad and were doing well, the non-
observance of guidelines could not be a ground to open the matter and cancel the adoptions. If
a foreign national adopts an Indian child as per the provisions of the Guardians and Wards Act,
1890, the Indian Court will appoint the foreign national as the childs guardian. The foreign
national will take the child to his country and adopt the child as per the laws of that country.

Looking at the specific case of India, the last legislative effort to deal with ICA was attempted in
1980 called the Adoption of Childrens Bill which due to many reasons did not come through.
Fortunately, the active judicial stand has encouraged the effective implementations of guidelines
regarding Inter-country adoption laid down by the 1993 Convention. Even the recommendations
of the Law Commission of India insist that a special legislation for Inter-country adoption be
made and the law is to be secular and uniform with emphasis on the welfare of the child. Hence
the researcher submits that UK and US are ahead of India in the limited sense of having a
legislation, however, through the judicial pronouncements and guidelines, the researcher feels
that India has the right attitude towards the Inter-country adoption and upholding the aims of the
Convention, this coupled with a strong legislation will definitely set the pace for some serious
action on part of India regarding the 1993 Convention

SUSTAINABLE DEVELOPMENT ISSUES

The UN Conference on Sustainable Development took place in June 2012 at Rio de Janeiro,
Brazil. One of the objectives of sustainable development was listed as the protection, survival
and development of children to their full potential, including through education. Further, they also
committed to securing a safe and healthy living environment for all, particularly children, youth,
women and the elderly and disabled. All of this, among other things, indicates the importance
that needs to be given to the welfare of children in order to achieve sustainable development.

Protection of destitute and abandoned children is a fundamental concern of adoption. However, it

is important to bear in mind that adoption is a process which is beneficial to the society as a
whole. The slowly spread of recognition of the right of homosexuals to adopt in certain
jurisdictions is a landmark in Inter-country adoption. This, combined with the option of surrogacy
enables people who cannot biologically bear children to raise their own families and also help in
the upbringing of destitute children. Children should be given the best care possible and should
be raised in a healthy environment, since they are the future of the world. Utmost importance
should always be given to the balanced development of a child.

The basic purpose of sustainable development is to provide a better tomorrow to the future
generations, hence the protection and welfare of children is paramount. Adoption is one of the
many ways in which the health and well-being of destitute children is safeguarded. Hence it is
very relevant to sustainable development.

CONCLUSION

Controversy exists at the heart of international adoption and makes progress hard to define. The
world is divided between those who argue that the goal is to open up international adoption to
facilitate the placement of children in need of homes, and those who argue that the goal is to
close it down to avoid further exploitation of these children, their parents, and their countries.
However, focusing on the reality of childrens lives and needs may help the warring factions
agree on a pathway to reformed policies. Large numbers of children in the poorer countries of the
world live in truly desperate circumstances. By contrast, those placed in international adoption
flourish. Those placed in infancy will do essentially as well as other children in their new country.
Those placed later will do far better than they would in the absence of placement.
If policy makers were to genuinely commit themselves to improving the lot of the worlds children,
they might want to listen to the concerns expressed on both sides of the international adoption
divide, and consider reforms that would both promote placement in international adoption and
promote improvement in conditions in the sending countries. Policy makers committed to these
twin goals should consider a variety of legal reforms. First they need to ensure that children who
cannot realistically be cared for by their parents are freed for adoption as promptly as possible.
Orphanages world-wide are filled with children who grow up with no meaningful tie to their
parents except the technical tie that means they cannot be placed with adoptive parents. The
same is true for street children. Law reform efforts need to focus on creating systems for
identifying and freeing up children who have been effectively permanently abandoned, and they
need to create realistic methods of expediting the process, so that children are placed in adoptive
homes as early in life as possible. Countries regularly react to international adoption critics by
passing laws eliminating private adoption, in which children are transferred more or less directly
from birth parents to adoptive parents, insisting that children instead be placed in orphanages,
and then often increasing the bureaucratic barriers between orphanage children and adoptive
placement. The net effect is that infant adoptions are almost unknown today in the international
adoption world, although they used to occur frequently. Insisting that children spend additional
months and years in the conditions of the typical orphanage, or on the streets, is inhumane in the
short term, and destructive in the long term of childrens opportunities to live happy and fulfilling
lives, assuming that they even survive, as many will not.

Second, policy makers in both sending and receiving countries need to facilitate the adoption
process so that it better serves the needs of prospective adopters. This will not only promote
their legitimate interest in parenting, but will maximize the numbers of parents for the children in
need. But policy makers also need to link these kinds of adoption reform efforts with initiatives
designed to address the baby-buying and kidnapping problems that exist in the international
adoption world. International adoptions opponents have grossly exaggerated the scope of these
problems, using them deliberately to promote restrictive adoption rules to suit their larger anti-
adoption agenda. But taking children from loving birth parents by applying improper financial or
other pressures victimizes not only the particular parents and children involved, but the larger
group of children and parents whose opportunities for legitimate international adoption are
thwarted by the negative regulation that is so often triggered by adoption abuses.

Finally, policy makers need to work to improve conditions for the children who will not be adopted
and for their birth parents. International adoptions opponents are correct in arguing that it can
never provide homes for all the children in need, and that we must address the problems of
poverty and injustice that result in children being abandoned in large numbers in the poor
countries of the world. International adoption provides a natural trigger for such broad efforts at
social reform. Adoptive parents and their governments become more aware of the problems of
the countries from which international adoptees come by virtue of the adoption process. With this
knowledge, and with the privilege of caring for these children, comes new responsibility for the
children left behind.

BIBLIOGRAPHY

Private International Law in India by K.B Agrawal and Vandana Singh

www.wikipedia.com

https://www.lawctopus.com

https://www.jstor.org