A STUDY ON

INTER COUNTRY ADOPTION IN INDIA

SUBJECT
PRIVATE INTERNATIONAL LAW
SLOT 4

AUTHOR
CHITRA C
III Year BBA LL.B (HONS)
Reg.No: 131502002

CO-AUTHOR
Ms. RAJASATHYA K.R
Assistant Professor of Law

SAVEETHA SCHOOL OF LAW

SAVEETHA INSTITUTE OF MEDICAL AND TECHNICAL SCIENCE

CHENNAI
 A STUDY ON INTER COUNTRY ADOPTION IN INDIA

C.Chitra1
K.R.Rajasathiya 2

ABSTRACT
Inter-Country Adoption is one among the foremost debatable problems within the current non-
public law of nations regime. this idea has helped the poverty-stricken youngsters in providing
them homely surroundings, that is a vital side for correct growth and welfare of the child. With
the world-wide recognition of Inter-country adoption, the time has return to validate and permit
the construct in Bharat too. The Indian judiciary has taken pro-active approach in light the
professionals and cons of the inter-country adoption. With the recent judgment and
development in Indian Law, it may be detected that Indian judiciary still the lawmakers square
measure determined to figure for the welfare and interest of the child. varied landmark
judgments has created a ray of hope within the lifetime of the poverty-stricken youngsters,
World Health Organization could once more sit into the laps of recent parent and luxuriate in
identical life, same culture and have the sense of family-hood. The observe of inter-country
adoption occurred mostly as a humane response to the plight of war orphans and also the
abandoned youngsters of servicemen in war II, the war and also the Vietnam.Today, the most
receiving countries are the us, North American country and also the developed countries of
Western Europe. 3 Factors like the decline in fertility related to obstruction wedding, the
restricted success rate and high price of physiological state treatment and an absence of
domestic adoption opportunities have created inter-country adoption an alternate to unfruitful
couples within the receiving countries.

Keywords:Adoption,child welfare , poverty, family-hood,lifetime.

1
IIIrd year, BBA.LL.B.,Saveetha School of Law, Saveetha University,Tamil Nadu,
India(chitrac11898.cc@gmail.com)

2
Asst.Prof, Saveetha School of Law, Saveetha University, Tamil Nadu, India.(sathya16.bl@gmail.com)

3
https://travel.state.gov/content/dam/aa/pdfs/Intercountry_Adoption_From_A_Z.pdf
INTRODUCTION
Every child features a right to like and be white-haired and to mature in an environment
affectionateness and affection and of ethical and material security and this can be attainable
given that the child is cited in an exceedingly family. 4The foremost congenial atmosphere
would, of course, be that of the family of his biological oldsters. however if for any reason it's
impracticable for the biological oldsters or alternative close to relative to appear once the kid
or the kid is abandoned and it's either impracticable to trace the fogeys or the fogeys don't seem
to be willing to require care of the child, future best various would be to seek out adoptive
oldsters for the child in order that the child will mature below the amorous care and a focus of
the adoptive oldsters.” However, in states of origin or causation countries, extreme poorness,
lack of contraceptive method and society’s attitudes to birth of illegitimate youngsters are 3
major factors resulting in the abandonment of youngsters to establishments. The construct of
“male” child additionally ends up in the abandonment of the woman child that is an unfortunate
reality in our own country.

AIM OF THE STUDY

 To know about the concept of Inter Country Adoption.
 To analyse about Laws of Adoption in India.

RESEARCH METHODOLOGY
The present research is descriptive, conclusive. The study was concluded on secondary source
of data books, articles, journals, e-sources and the relevant cases

4
http://journals.sagepub.com/doi/abs/10.1177/030857590703100206?journalCode=aafa
LAWS OF ADOPTION IN INDIA
At the International level, India has legal the Convention on the Rights of kid and also the
Hague Convention on Inter-Country Adoption of youngsters5. The principal law concerning
adoption in India beneath the Hindu system is contained within the Hindu Adoptions and
Maintenance Act, 1956.6
The Juvenile Justice (Care and Protection of Children) Act, 2000 and also the modification
Act, 2006 guarantees rights to associate adopted kid as recognized beneath international
obligations by all Hague member countries. The JJ Act, 2000, but failed to outline ‘adoption’
and it's solely by the modification of 2006 that the that means therefrom came to be expressed
within the following terms:

“2(aa)-‘adoption’ suggests that the method through that the adopted kid is for good separated
from his biological folks and become the legitimate kid of his adoptive folks with all the rights,
privileges and responsibilities that square measure connected to the relationship”.

The modification emphasised that adoption beneath this legislation would permit associate
adopted kid to become the “legitimate kid of his adoptive folks, with the rights, privileges and
responsibilities connected to the connection. this is often a big move considering until then,
adoption by non-Hindus was guided by the Guardian and Wards Act, 1890. Minority castes
like Christians, Muslims or Parsis failed to acknowledge adoption thence the adoptive folks
had to stay as guardians to their adopted youngsters as per the Guardian and Wards Act, 1890.

In exercise of the rule creating power unconditional by Section sixty eight of the JJ Act, 2000,
the JJ Rules, 2007 were enacted, that currently stand repealed by a contemporary set of tips
revealed by Notification dated twenty four.6.2011 of the Ministry of girls and kid
Development, Government of India beneath Section 41(3) of the JJ Act. As a matter of reality,
by virtue of the provisions of Rule 33(2) it's the rules of 2011 notified beneath Section 41(3)
of the JJ Act which can currently govern all matters concerning inter-country adoptions just
about conferring on the same tips a statutory flavour and sanction.
Rule 8(5) prescribes priorities for rehabilitation of a toddler and it's mentioned that preference
should tend for putting a toddler in in-country adoption and also the magnitude relation of in-

5
https://www.unicef-
irc.org/publications/pdf/unicef%20best%20interest%20document_web_re-supply.pdf
6
http://www.adoptionpolicy.org/pdf/backgroundCS.pdf
country adoption to inter-country adoption shall be 80:20 of total adoptions processed annually
by a RIPA, excluding special desires youngsters.
Rule 8(6) mentions the order of priority that is to be followed in cases of inter-country
adoptions, that is as under:-7
(i) Non Resident Indian (NRI) (ii) Overseas national of India (OCI) (iii) Persons of Indian
Origin (PIO) (iv) Foreign Nationals
Rule thirty one speaks regarding power of the government to represent a Committee to be
referred to as the Adoption Recommendation Committee (ARC) to scrutinize and issue a
Recommendation Certificate for placement of a toddler in inter-country adoption.

CONCEPT OF INTER COUNTRY ADOPTION

The question concerning the validity of inter-country adoption was initial debated within the
well-known case of In Re Rasiklal Chhaganlal Mehta whereby the Court command that inter-
country adoptions beneath Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 ought
to be lawfully valid beneath the laws of each the countries. The adoptive folks should fulfil the
necessity of law of adoptions within their country and should have the requisite permission to
adopt from the acceptable authority thereby guaranteeing that the kid wouldn't suffer in
immigration and getting position in the adoptive parents’ country.8

The Supreme Court of Asian country during a public interest judicial proceeding petition,
Laxmi Kant Pandey v. Union of Asian country, had framed the rules governing inter-country
adoptions for the advantage of the govt of Asian country. A regulative body, i.e., Central
Adoption Resource Agency (for short ‘CARA’) was suggested and consequently came upon
by the govt of Asian country within the year 1989.

Since then, the agency has been enjoying a important role, egg laying down norms each
substantive and procedural, within the matter of put down furthermore as in country adoptions.
The aforementioned norms have received statutory recognition on being notified by the Central
Govt. beneath Rule thirty three (2) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and are nowadays good throughout the country, having conjointly been adopted

7
http://www.crin.org/en/docs/SC_Intercountry_Adoption_Policy_Brief_FINAL_-
_June_2012%5B1%5D%5B1%5D.pdf
8
http://www.crin.org/en/docs/SC_Intercountry_Adoption_Policy_Brief_FINAL_-
_June_2012%5B1%5D%5B1%5D.pdf
and notified by many states beneath the principles framed by the states in exercise of the Rule
creating power beneath Section sixty eight of the JJ Act, 2000.

In the case of man. Craig Allen Coates v. State through Indian Council for kid Welfare and
Welfare Home for Children[xi] the Court command that wherever the adoptive folks fail to
determine clearly the motive for adopting a baby from another country, then the adoption
method would be barred and be declared as malar bone fide which CARA ought to guarantee
a lot of stricter pointers during this regard.9

One of the foremost important problems in inter-country adoptions is finding prospective

adoptive folks, ideally of Indian origin. The Supreme Court of Asian country, within the
province State Council for kid Welfare v. Society of Sisters of Charity St Gerosa Convent,
10
had command that the explanation behind finding Indian folks or folks of Indian origin is to
confirm the well-being of the kids which they develop in Indian surroundings in order that they
will retain their culture and heritage. the most effective interest of the kids is that the main and
prime thought.

Bombay supreme court during a recent judgment, Varsha Sanjay Shinde &amp Anr. v. Society
of Friends of the Sassoon Hospital and others, command that when a baby is approved by
associate degree Oversees couple after the due procedure is followed, constant kid can't be
shown to different Indian folks which such Indian folks then cannot claim any right or priority
to induce the kid just as a result of they're Indian folks and preference ought to be to them over
Overseas Indians and Foreign Couples. though the most problems was set the Court unbroken
the petition unfinished so as to examine the compliance of directions given by the Court for
giving the kid to the Overseas Indian Couple and to confirm that the Indian folks (Petitioners)
conjointly get a baby efficiently.
Court additional ordered down following pointers for in-country and inter-country adoptions
to be browse and applied in consonance with pointers of 2011:11
(i) All the involved Agencies viz RIPA, specialised Adoption Agencies, SARA, ARC, AFAA
to conscientiously follow the rules that are ordered down in 2011

9
http://www.un.org/esa/population/publications/adoption2010/child_adoption.pdf
10
http://www5.austlii.edu.au/au/journals/AUJlGendLaw/2008/4.pdf
11
http://cara.nic.in/PDF/Bench%20Book%20For%20Adoptions.pdf
(ii) although there's no specific variety mentioned within the pointers on the quantity of Indian
folks to whom the kid ought to be shown, among a amount of 3/4 weeks, the kid ought to be
shown to as several Indian folks as potential and, secondly, at a time, the kid ought to be shown
solely to at least one parent and not multiple variety of oldsters as has been drained this case12.

(iii) given that the kid isn't accepted by Indian folks and also the Adoption Agencies on account
of their expertise come back to conclusion that the kid isn't seemingly to be taken in adoption
by Indian folks then, in this case, it ought to be shown to foreign folks.
(iv) once the kid is shown to the foreign folks, it ought to be shown within the list of priorities
that are mentioned within the aforementioned pointers.
(v) ARC and SARA ought to work not in conflict however in coordination with CARA, it being
the Centralized Nodal Agency.
Another latest judgment is that of metropolis supreme court wherever the problem concerned
was whether or not adoptions created directly by biological folks of a baby while not
intervention of CARA are valid in eyes of law. it had been the argument of counsels of
petitioners that the intercession of CARA was mandated solely in cases of these kids World
Health Organization are orphan or abandoned by their biological folks. it had been the stand of
CARA that the legislative mandate for constant is found within the modification created in
2006 to the Juvenile Justice (Care and Protection of Children) Act, 2000 by introducing Sub-
Section (2) in Section forty one of the JJ Act. it's therefore contended that the rehabilitative
measures for kids in would like of care and protection through suggests that of adoption applies,
not solely to orphan and abandoned kids, however conjointly to, relinquished child. In different
words, in step with the stand taken by CARA, the term “surrendered children” would come
with “children that are given in adoption by their biological folks on to the adoptive parents”.

Court aforementioned that even in absence of associate degreed pointers court isn't 13
disempowered to direct the State to hold out an investigation within the interest of kid each in
country of origin and receiving country through a recognized agency. Court, however, left the

12
http://docs.manupatra.in/newsline/articles/Upload/AAE0786F-285D-424E-B557-
16F742371D48.pdf
13

http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial%20interpretati
on-%20Deepak%20KR.Verma.pdf
relate the knowledge of a bigger bench so as to answer the subsequent queries that came up
within the petition:14

(1) whether or not the term “surrendered kid” can embrace those child World Health
Organization are directly taken in adoption from their biological folks while not the
intercession of any specialised agency or child welfare committee?

(ii) whether or not, just in case of direct adoption, the 2011 pointers and also the provisions of
Section 41(3) and (4) of the JJ Act are applicable?

(iii). If the solution to issue no.(i) and (ii) is within the affirmative, to what extent the 2011
pointers would apply to direct adoptions?

(iv) will the court direct State to discharge its duty in its capability as parens patriae to hold out
associate degree investigation thus on safeguard the interest and/or rights of the kid given on
him beneath Article twenty one of the Constitution of India.

PROBLEMS SUBSISTING INTER COUNTRY ADOPTION

Child trafficking within the colour of international adoption
The biggest threat to the kid in inter-country adoption is changing into a victim of kid
trafficking racket. when the domestic procedure for adoption by the foreign adopting folks is
over, it becomes a lot of a matter of law and international treaties to appear when the well being
of the kid. Moreover, the dearth of awareness concerning the legal procedures for inter-country
adoption has given rise to several faux adoption agencies. kids ar sold abroad by providing
false data concerning them, falsification documents, and creating use of loopholes within the
adoption tips prescribed by the Supreme Court.15

Post adoption negligence

When the kid is given for inter-country adoption, post adoption follow-ups become more and
more tough. despite the fact that CARA tips define the role of the Indian diplomatic missions,

14
https://www.researchgate.net/publication/236005514_Adoption_in_India_-
_the_PastPresent_and_the_Future_Trends
15
http://www.wbja.nic.in/wbja_adm/files/Cara_Guidelines.pdf
foreign authorized agencies and skilled social staff in protective a baby from post adoption ill-
usage, it's nearly not helped anyone.16

Post adoption domestic succession

Once the mortal dies when bequeathing the property within the name of the kid World Health
Organization had been given in adoption, the identity of the kid should be evidenced. In cases
wherever there's a challenge to the succession by alternative survivors, the procedure becomes
even harder. The country of residence can take the matter as per the laws of domicile and if
such succession becomes lawfully void because of any unfortunate mistake, the adopted kid
would ne'er be ready to claim legal rights of the property and thereby should suffer nice money,
physical and emotional agony. 17sadly Asian country has not entered into any agreement or
treaties to unravel such succession matters. country law still rules the courts in such cases. each
adopted kid develops a powerful inclination to grasp his/ her roots at some purpose of your
time. Such legal turmoil over successions from the biological family might even leave the
person in nice frustration.

Post adoption mental state

Juvenile Justice Care and Protection(Amended) Act), 2006 specifies that a baby are often
adopted by a person, no matter his/her legal status, by folks World Health Organization want
to adopt a baby of same sex no matter the quantity of living biological sons or daughters, or by
couples World Health Organization haven't any kids of their own. it's created adoption a less
complicated and universal law than the standard laws. The law continues to be difficult,
however, just in case of inter-country adoptions as prospective foreign folks still got to 1st take
the role of guardians and take the kid to their country. the method should be finished there as
neither the new law nor any existing law specifically mentions a procedure in cases of
overseas 18 adoption. Once the kid becomes prepared for overseas adoption, the law has to
acknowledge Indian adoption procedure and also the kid is adopted per the laws of the country
of adoptive parents’ residence. the kid becomes the final word sufferer unless the “guardians”
flip real folks as per the law of his new residence.

16

http://www.icsw.org/images/docs/Regions/sasia/pub/A%20S%20Shenoy%20Paper%20Child
%20Adoption%203%2007.doc
17
https://www.childwelfare.gov/pubPDFs/f_inter.pdf
18
http://cara.nic.in/PDF/Regulation_english.pdf
Guidelines lack force of law
CARA tips most frequently lack the force of law. therefore the parties ne'er extremely stay
obligated to follow the rules or perhaps the Indian law just in case the habitual resident belongs
to a rustic that isn't a member or has relinquished its membership from the convention. the rules
fail to make sure the health, safety and adjustment of the kid 19when he/she has left Asian
country. It ought to be noted that because the numbers of adoptions increase, the quantity of
laws followed are lesser. the rules ought to have place a most range of adoption procedures a
month, by every adoption agency in order that social staff, the authorities, and voluntary
coordination committees wouldn't be loaded down. Lack of standard checks at the adoption
agencies and also the manner within which they operate can even result in several issues.
Since the CARA tips mention nothing concerning any penal actions against unrecognized
adoption agencies, kid trafficking within the name of inter-country adoption has gotten a
straightforward solution.

19
https://www.justice.gov.nt.ca/en/files/legislation/intercountry-adoption-hague-
convention/intercountry-adoption-hague-convention.a.pdf
CONCLUSION
Inter-country or multinational adoption might become the most effective possibility for orphan
kids to start out a contemporary life in an exceedingly new country. however once the country
of domicile for these kids doesn't have any correct law to point out them their destiny, violation
of their rights is incredibly a lot of definite to require place. The country urgently wants higher
laws and guideline for inter-country adoption. The authorities ought to guarantee thorough
checks of each adoption agency to confirm that they're protective the child’s rights as has been
provided within the constitution and also the Juvenile Justice Care and Protection Act, 2006.
each kid features a right to life, home and education. it's essential that the authorities not solely
build laws to produce safer multinational adoption to the youngsters however additionally to
confirm safety of the kid even abroad.
It is a standard state of affairs in India that the judges managing adoption cases, particularly in
tiny cities and cities in India, don't seem to be preponderantly at home with the interpretation
of the inter-country adoption tips. Hence, during this regard, a standardised however20 rigorous
procedure should be developed which may be simply followed and discovered keeping in
regard the human spirit. As has been seen, Courts, although slowly and steady, are approaching
each doable dimension of this issue and are birthing down norms for eliminating any legal or
emotional mayhem for the kid or his biological and adoptive oldsters.

20
K.Sreekanthan, Conflict of Laws,The Academy of Legal Publication
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a
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3. http://www.adoptionpolicy.org/pdf/backgroundCS.pdf
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irc.org/publications/pdf/unicef%20best%20interest%20document_web_re-supply.pdf
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_June_2012%5B1%5D%5B1%5D.pdf
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16F742371D48.pdf
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erpretation-%20Deepak%20KR.Verma.pdf
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14. https://www.researchgate.net/publication/236005514_Adoption_in_India_-
_the_PastPresent_and_the_Future_Trends
15. http://www.wbja.nic.in/wbja_adm/files/Cara_Guidelines.pdf
16. http://www.icsw.org/images/docs/Regions/sasia/pub/A%20S%20Shenoy%20Paper%
20Child%20Adoption%203%2007.doc
17. http://cara.nic.in/PDF/Regulation_english.pdf
18. https://www.justice.gov.nt.ca/en/files/legislation/intercountry-adoption-hague-
convention/intercountry-adoption-hague-convention.a.pdf
19. K.Sreekanthan, Conflict of Laws,The Academy of Legal Publication.
20. http://www5.austlii.edu.au/au/journals/AUJlGendLaw/2008/4.pdf