TABLE OF CONTENTS

RESEARCH METHODOLOGY......................................................................................................I

ACKNOWLEDGEMENT...............................................................................................................II

1. ADOPTION AND INTER-COUNTRY ADOPTIONS....................................................................1

....................................................................1

1.1. Adoption..............................................................................................................1
1.2. Inter Country Adoption.....................................................................................1
2. ADOPTION LAWS IN DIFFERENT ARENA............................................................................4
............................................................................4

2.1. China..................................................................................................................5
2.2. South Korea......................................................................................................6
2.3. LGBT Adoptions.................................................................................................7
3. INDIAN LEGISLATIONS ON INTER-COUNTRY ADOPTIONS.....................................................9
.....................................................9

3.1. THE LANDMARK CASE OF IN RE: RASIKLAL CHHAGANLAL METHA..............................9

3.2. CASE OF LAXMI KANT PANDEY V. UNION OF INDIA.....................................................10
3.3. Other Significant Cases....................................................................................12
4. CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)...................................................
(CARA)...................................................14 14

4.1. Procedure for adoption from India by NRIS/OCIS/ PIOS/Foreighners.....17

Step I (Registration for NRI/OCI/PIO/Foreign PAPs)..........................................17
Step II (Home Study and Other requirements).......................................................18
Step III (Advance NOC to PAPs by CARA)............................................................19
Step IV (Matching, Referral, Consent and confirmation of adoption proposal). .20
Step V (Issue of No Objection Certificate to Child by CARA)...............................21
Step VI (Filing of Petition in the Court).................................................................21
Step VII (Passport and Visa)...................................................................................22
Step VIII (Child travels to adoptive country)..........................................................22
The Inter-Country Adoptions - Indian Perspective
5. STATUTES GOVERNING INTER-STATE ADOPTION IN INDIA...................................................23
...................................................23

5.1. Juvenile Justice (Care and Protection of Children) Act, 2006.....................24

6. GUIDELINES PROVIDED BY UN......................................................................................
UN......................................................................................27
27

6.1. The Hague Convention and the ratification on inter-country adoption by

the Government of India on 6th June, 2003...............................................................27
6.2. The Conventions on the Rights of the Child (CRC)......................................28
CONCLUSION........................................................................................................................30
........................................................................................................................30
Submitted to: Submitted from:
BIBLIOGRAPHY.................................................................................................................XXXVI
Ms. Gagan Preet Abhiwadya Sood (470)
Bibliography
Arnab Naskar (459)
Mohinder Pratap Libra (469)
Vishu Agrawal (450)
 [1]

RESEARCH METHODOLOGY

When it comes to methodology which is to be used, various kinds of research

methodologies are put in our research project. We have used non-empirical research to
accomplish this project with possible wisdom. We have used explanatory and descriptive
research in concept of Judiciary, theoretical analysis and recent happenings. So, it is very
hard for us to give the precise name of any one research methodology which we are
using for the instant project.

__________________________________________________________________________________
__________________________________________________________________________________

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT

 [3]

ACKNOWLEDGEMENT

The gratification and elation on the completion of this project will be incomplete without
mentioning all the people who helped to make it possible, whose guidance and
encouragement was valuable to us.

We express our sincere and heartiest thanks to Ms. Gagan Preet who has been a
constant source of inspiration to us in completing the project to its rightful path. We are
immensely indebted to for her inspiring guidance and kind suggestion in carrying out the
project.
We specially thank our parents who gave us a chance to study in this esteemed
university, a paradise for legal edification and all who supported, us directly or
indirectly, for successful completion of the project work.

Last, but not the least; we thank our institution, Rajiv Gandhi National University of
Law, for giving us the opportunity for developing the project.

__________________________________________________________________________________
__________________________________________________________________________________

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT

 [1]

CHAPTER I
1. ADOPTION AND INTER-COUNTRY ADOPTIONS
1.1.Adoption

The practice of adoption can be crudely defined as ‘the admission of a stranger by birth
to the privileges of a child by a legally recognized form of affiliation’. 1 It means
accepting a child as a biologically born child of our own. This is a remedy for the
childless couple to have a child of their own. It is an act of establishing a person as parent
to one who is not in fact or in law his child. 2 It taking of stranger into the family and
considering and treating him, in all respects, as if, by birth that child belonged to that
family; or it is the adoptive parent acting towards the child as if that child were their
own.
In this project we will discuss about adoption, a complex phenomenon, intimately knitted
into its family law frame work and shaped by the pressures affecting the family in its
local social context. Once the adoption is complete, all rights obligations and control of
the natural born family ceases to exists over the child, while new rights comes into
existence as far as adoptive family is concerned. The status of the natural parents
becomes nothing but that of a third party, with respect to the child who has been adopted
___
and moreover, the parents who have adopted the child or the adoptive parents take over
___
the responsibilities of the child. It is one of the means of solving the problem of destitute
___
___
and orphans. 3 ___
___
1.2.Inter Country Adoption ___
___
If we talk about Inter Country adoptions or International adoption, it is a type ___
___
of adoption in which an individual or couple becomes the legal and permanent parents___ of
1 Raghunath Behera v. Balaram Behera And Anr. AIR 1996 Ori 38. ___
___
2 Adoption, <http://www.britannica.com/EBchecked/topic/6298/adoption> last accessed on November___7,
2010 at 7:22 IST. ___
___
3 Adoption inter-country, <http://www.legalservicesindia.com/articles/adopt.htm> last accessed ___
on
November 7, 2010 at 7:22 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

a child that is a national of a different country. In general, prospective adoptive parents

must meet the legal adoptions requirements of their country of residence and those of the
country whose nationality the child holds.4

The laws of different countries vary in their willingness to allow international adoptions.
Some countries, such as China and Korea, have relatively well-established rules and
procedures for international adoptions, while other countries expressly forbid it. Some
countries, notably many African nations, have extended residency requirements for
adoptive parents that in effect rule out most international adoptions. Malawi, for instance,
requires residency except in special cases.5 Inter-country adoption is an increasingly
common form of family formation. Inter-country adoption can be defined as adoption of
a child by a person of another country. Inter-Country adoption may be more viable
choice than domestic adoption for many families especially those who want to adopt a
healthy infant.

Inter country adoption is a subject of international law in several senses. First, because
inter country adoption involves the immigration of persons from one nation to another, it
raises core national sovereignty issues with international law significance.6 Second, Inter
country adoption as a humanitarian matter implicates human rights issues, which have
become a significant focus of international law. An exhaustive scope of international law
___
applicable to inter country adoption is beyond the scope of this Article. However, two
___
treaties will be reviewed: the Convention on the Rights of the Child (CRC) and ___
7
the
___
Hague Convention on Protection of Children and Co-operation in Respect of Inter ___
___
___
___
___
4 <http://en.wikipedia.org/wiki/International_adoption> last accessed on November 3, 2010 at 13:22 IST.
___
5 <http://uai-news.blogspot.com/2010/01/malawi-as-example-for-haiti.html> last accessed on November ___
2,
2010 at 7:32 IST. ___
___
6 Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the Indian Adoption ___
Scandals, Seton Hall Law Review, Vol. 35:403, Page No. 406. ___
___
___
7 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR,44th Sess., Supp. No. 49, at 167, U.N.
Doc. A/44/49 (1989), 28 I.L.M. 1448 ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

country Adoption (Hague Convention).8 The CRC is probably the most relevant
human rights convention applicable to inter country adoption, which we will be dealing
in the later part of our project work. The details regarding this will be discussed in
Chapter VI.

___
___
___
___
___
___
___
___
___
___
___
___
___
___
C HAPTER II ___
___
___
8 Hague Convention on Protection of Children and Co-operation in Respect of Inter country Adoption,
May 29, 1993, 32 I.L.M. 1134. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

1. ADOPTION LAWS IN DIFFERENT ARENA

India is a legally pluralistic state. It is a land of diverse cultures, where people are free to
practice and profess their own religion by virtue of constitutional mandate provided
under Article 25. As adoption is legal affiliation of a child, in the absence of common
code it is the subject matter of personal laws. The Institution has changed over a period
of time in its form, purposes and objects because it is natural that as human though
progresses, the concept and organisation and social Institutions also advance and
refined.9 Institution of adoption is prevalent today in one form or other in almost all legal
systems barring a few systems such as Islamic countries. The Hindu and Roman legal
systems are probably among the only ancient systems of law which recognises
adoption.10

In India, even today, it is not a part of uniform civil code but part of personal laws and
this institution is available only to Hindus. Muslims, Parsis and Christians do not
recognise adoption laws and have to approach court under The Guardians and Wards
Act, 1890.11 Adoption is permitted by legislations amongst Hindus and by customs
amongst a few communities. Earlier a childless couple would adopt and take care of and
bring up a child either of immediate or distant family member. Nonetheless, the practise
of adopting an unrelated child is still in its infancy in India.
___
___
Now, coming back to the topic, i.e., intercountry adoptions, the adoption laws of China ___
12 ___
and S. Korea are most suitable for international adoptions. These laws are worth ___
analysing. The other unique law which needs special attention is LGBT adoptions. There ___
___
are many countries where LGBT adoptions are illegal, on the other hand, in some well ___
___
___
___
9 Gagan Preet, Hindu Adoption-A journey from Past to Present, Paradise Publishers, Jaipur, 2010, Pg. 17.
___
10 Ibid. ___
___
11 The Guardians and Wards Act, 1890, Article 1 (2). ___
___
12 International adoption <http://en.wikipedia.org/wiki/International_adoption> last assessed on 10 ___
November 2010 at 16:32 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

codified. Whatsoever may be the laws, the same sex couples faces lots of problem in
adoptions. We had tried to cover up these topics in brief.

2.1. China

The China adoption program is one of the most reliable and stable, and China is the
country from which most U.S. citizens have elected to adopt since the year 2000. In
2008, U.S. citizens adopted approximately 3,909 children from China. Children available
for adoption are mostly girls, infants to 6 years of age. Older and special needs children
are also available. These children reside in orphanages.13
Due to lack of transparency or say lack of freedom of speech in China, we could hardly
find any precise law prevailing in China. The only thing of importance which could
retrieve is the amendments in intercountry adoption policies of China.
The Seventh National People's Congress of the People's Republic of China originally
established the Current Adoption Law of China on December 29, 1991 (effective April 1,
1992).14 On November 4, 1998, the Ninth National People's Congress amended this law,
effective April 1, 1999, in several ways relevant to foreign adopters. The adoption law
applies across the board to all adoptions in the PRC; it includes adoptions of orphaned,
abandoned, and handicapped children in social welfare institutions, adoptions of blood
relatives and step-children, and adoptions of nonrelated children still living with their
___
birth families or guardians. These laws are applicable for both domestic and inter country
___
___
adoptions.15 ___
___
The most significant change for foreign adopters in China's adoption law is that it allows ___
another exception to the adopter-must-be-childless requirement. Previously, the only ___
___
___
13China Adoption, < http://china.adoption.com/> last assessed on 10 November 2010 at 16:30 IST. ___
___
___
14 Chinese Cultural Centre of San Francisco, < http://www.c-c-c.org/> last assessed on 10 November 2010
___
at 16:32 IST. ___
___
15 Laura A. Cecere, Changes Broaden Opportunity For China's Abandoned Children To Be Adopted, ___
<http://www.chinaconnectiononline.com/amendlaw.htm> last assessed on 10 November 2010 at 16:32 ___
IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

exceptions to this requirement were if the family adopted a child whose parents are
deceased or a child who has a special need. The law has been amended to add another
exception: abandoned children "whose parents cannot be ascertained or found (and who
are) under the care of social welfare institutions." Thus, adopters are still required to be
childless to adopt a healthy child, unless that child has a special need, has been orphaned,
or has been abandoned and is in the care of a social welfare institute.16
China also has a fixed age for adoption. No person in China below the age of 30 could
adopt a child, but no upper limit.17 There is also a provision of which qualifies children
available for adoption: only children under age 14 who have been orphaned (parents
deceased) or abandoned or whose parents are unable to raise them due to unusual
difficulties.
These are some of the unique features of China’s Adoption policies, which are
considered as the best in the world.18

2.2.South Korea

The South Korea adoption program is the oldest organized international adoption
program operating in the U.S. In 2008, U.S. citizens adopted approximately 1,065
children from South Korea. Children available for adoption include boys and girls, ages
6 months and older, healthy and special needs. These children reside in foster care and
___
group homes.19 ___
___
As far as the resources could be analysed, the Korean Laws are stricter than China’s.___ In
___
Korea, the provision of adoption is only for hetero married couples. There is no provision ___
___
16 Current Adoption Law of China, 1991, Article 8. ___
___
___
17 Ibid ___
___
18 International Adoption, <http://en.wikipedia.org/wiki/International_adoption>last assessed on ___
10
___
November 2010 at 16:32 IST. ___
___
___
19 Adoptive Families, < http://www.adoptivefamilies.com/news.php> last assessed on 10 November 2010
at 11:21 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

of adoption for homosexuals and LGBT community members. Even they don’t believe in
adoption by singles as they have o legal provision for it. Now, if we talk about the
minimum age of adoption, only a couple of age between 25 and 42 could go for
adoption. The age difference of the husband and wife should not be more than 10 years.
There should not be more than 4 children of less than 18 years living in the home. There
is also a specification on the length of marriage. The adopting couple must be married for
at least 3 years. Even the second married couple must also have to be married for at least
3 years. But not more than 2 marriages are allowed.
Two of the most amazing laws are couples may not be more than 30%
overweight. Applicants must not exceed the weight limit for their height at the time of
application and applicants with a history of any kind of depression or mental illness must
be stable for five (5) years with or without medication20.
2.3.LGBT Adoptions

Adoption by same-sex couples is prohibited by a majority of countries, but this is an area

of active debate and a growing number of jurisdictions are allowing it. Many gay and
lesbian people are choosing to become parents. Some bring children with them from
previous relationships or some couples impregnate through artificial insemination.
Others are finding adoption to be their preferred method of bringing a child into their
family. Should the sexual orientation of prospective adoptive parents be considered when
___
___
placing children in adoptive homes? The adoption of minor children by lesbian and gay
___
___
adults has been a topic of considerable debate. Although substantial research has ___ ___
demonstrated that children of lesbian and gay parents develop in ways that are similar to ___
___
those of heterosexual parents, families with lesbian and gay parents remain controversial ___
___
in courtrooms, legislatures, and in the media.21 Meanwhile, many children await ___
___
placement with permanent families. ___
___
20Dillon International, <http://www.dillonadopt.com/Korea-A.htm> last assessed on 10 November 2010 ___
at
14:23 IST. ___
___
21 Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson; Parenting and Child Development in ___
Adoptive Families: Does Parental Sexual Orientation Matter?, 2010, Pg. 164. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

Gay couples looking to adopt face a number of challenges that married, heterosexual
couples do not. Adoption laws in the United States, for example, remain a patchwork
quilt when it comes to lesbians and gay men adopting. Many states do not allow
adoptions by any unmarried couples, which automatically preclude same-sex couples
from adopting in those states; and a few states – including Florida, Mississippi,
Nebraska, Oklahoma, Utah and Virginia – have enacted laws that specifically bar gay
individuals or couples from adopting. Here's an example:

“A gay couple wants to adopt a newborn. They are chosen by a birth mother
in a state that doesn't allow lesbian or gay couples to adopt jointly. They fly
to that state to be present at the birth and to help welcome their new daughter
into the world; the birth mother tearfully presents the baby to them with her
blessings and their promise to send her photos and keep her memory alive
forever. Their plan is to bring the baby back to their home state and adopt
her there, since gay couples are allowed to adopt as couples in their home
state, and not in the state where the child was born. Unfortunately, once they
return home they discover that even though they have the birth mother's full
consent, and even though their state has no problem with their adoption, they
are unable to adopt as a couple because the Interstate Compact on the
___
Placement of Children (ICPC) requires the state in which their daughter was ___
born to approve the adoption, and that state's law expressly prohibits ___
___
adoption by couples of the same gender.” 22 ___
___
___
___
In the past, gay couples have had to be secretive in adopting a child due to certain ___
prejudices that existed against homosexuality. For example, one partner would adopt ___ the
___
child as a single parent and the other would pretend to be a roommate or friend. ___
___
___
___
___
22 Gay Adoption Issues, <http://adoption.about.com/od/gaylesbian/a/gayadoptissues.htm> last assessed___
on
10 November 2010 at 4:32 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [4]

Currently in Canada a gay couple can legally marry and they are allowed to adopt, but in
the United States it is dependent upon each individual state. Here is a sample of countries
and states where same sex adoption s legal and where it is prohibited.

CHAPTER III

1. INDIAN LEGISLATIONS ON INTER-COUNTRY ADOPTIONS

In this chapter we will deal about the Indian perspective relating to the inter-country
adoption. Adoption is a beautiful means to enhance the lives of children and parents
alike. Its a way to secure a right of every child to a caring family environment ; a
permanent family for a child. It enables a parent-child relationship to be established
between persons not biologically related. It is defined as a process by which people take
children not born to them and raises them as a member of their family. In country like
India where adoption is a century old tradition for Hindus. Inter-state adoption is
definitely a major legal perspective.

3.1.THE LANDMARK CASE OF IN RE: RASIKLAL CHHAGANLAL METHA ___

___
In the case of In Re: Rasiklal Chhaganlal Metha 23
the question of inter-country ___
___
adoption was first debated, whereby the Court held that inter-country adoptions ___
___
under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally ___
___
valid.24 The sections says that the adoptive parents must fulfil the requirements of law___ of
___
adoptions in their country and must have the requisite permission to adopt from ___ the
23 A.I.R. 1982 Gujarat 193. ___
___
___
24 Sec-9(4) - Persons capable of giving in adoption - Where both the father and mother are dead or have
___
completely and finally renounced the world or have abandoned the child or have been declared by a court
of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, ___the
guardian of the child may give the child in adoption with the previous permission of the court to ___
any
person including the guardian himself. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

appropriate authority thereby ensuring that the child would not suffer in immigration and
obtaining nationality in the adoptive parents’ country.25

The Indian Council of Social Welfare has defined an inter-country adoption as one in
which “the adopters and the child do not have the same nationality as well as one in
which the habitual residence of the adopters and the child is in different countries”. 26 The
Indian Council of Social Welfare has pointed out that inter-country adoption is not a
simple matter. They involve a variety of principles and procedures over migration,
citizenship, the socio-economic situation of adoptive parents, matching parents with the
child, and the acceptance of the child in a different community and culture. Therefore,
the Indian Council of Social Welfare has recommended that in the interests of the child it
is necessary to regulate inter-country adoption by legislations and by strict collaboration
between qualified and au theorized personal and social authorities. The end result of the
process will be that adoption would not be mere legalistic in approach but the creation of
an environment in which the child can grow with the same nationality. However, since
there are more children in need of homes than there are parents forthcoming, inter-
country adoptions are filling the gap. The Indian Council of Social Welfare has,
therefore, also focused attention to this matter specially to ensure that the child's interest
is secured in cases of such adoptions.27

3.2.CASE OF LAXMI KANT PANDEY V. UNION OF INDIA ___

___
The Supreme Court of India in a public interest litigation petition, Laxmi Kant Pandey___ v.
___
Union of India,28 had framed the guidelines governing inter-country adoptions (Ref. ___
___
Annexure A) for the benefit of the Ministry of Welfare, Government of India. The ___
___
main objective, as held by the Court was to prevent trafficking of children and to protect ___
___
25 A.G.Gupte, Hindu Law, Premier Publishing Co., Allahabad, 2003, Pg. 768. ___
___
26 Ibid. ___
___
27 Amicus Curiae and D.D. Vyas, Adv. for the Indian Council of Social Welfare, in the case of In ___
Re:
Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193. ___
___
28 A.I.R. 1984 S.C. 469. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

the welfare of adopted children so that the evils of the inter-country adoption can be
prevented to a certain extent. Furthermore, the apex court in the judgment of the instant
case had also pointed out that in ordinary circumstances the court, entertaining an
application on behalf of a foreigner seeking to be appointed guardian of a child with a
view to eventual adoption, should not insist on the foreigner making a deposit by way of
security for due performance of the obligations undertaken by him. However, in certain
cases, the court may pass an exceptional order requiring him or her to make such deposit.
The court has also observed that it is at that point of time that the execution of a bond
would ordinarily be sufficient.29

Justice Bhagwati while giving its second supplemental judgment in the Laxmi Kant
Pandey’s v. Union of India30, have opined that -

“We would, therefore, direct that in case of a foreigner who has been living in India for
one year or more, the home-study report and other connected documents may be allowed
to be prepared by the recognised placement agency which is processing the application of
such foreigner for guardianship of a child with a view to its eventual adoption and that in
such a case the Court should not insist on sponsoring of such foreigner by a social or
child welfare agency based in the country to which such foreigner belongs nor should a
home-study report in respect of such foreigner be required to be obtained from any such
foreign social or child welfare agency, the home study report and other connected
___
___
documents prepared by the recognized placement agency should be regarded ___
as
___
sufficient.” ___ ___
___
The Court further held that - If it was not possible to find suitable adoptive parents ___
for
___
the child within the country, it may become necessary to give the child in adoption___ to
foreign parents rather than allow the child to grow up in an orphanage or an institution___
___
where it will have no family life and no love and affection of parents and quite often,___in
___
the socioeconomic conditions prevailing in the country, it might have to lead the life of
___a
___
29 Laxmi Kant Pandey v. Union of India, A.I.R. 1984 S.C. 469. ___
___
30 Ibid ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

destitute, half clad, half-hungry and suffering from malnutrition and

illness.31 Thus foreign adoption was held to be consistent with India’s National Policy on
Children.

3.3.Other Significant Cases

Recently, the Delhi Court in Maria Chaya Schupp, A German National represented by
her Constituted Attorney, Smt. Geeta Menon v. The Director General of Police and
Ors.32 had held that it is essential for all the adoption to carefully scrutinize all the
adoption documents along with taking down the relevant permissions from the biological
parents before going for an inter-country adoption. A similar view was held in the case of
Mr. Craig Allen Coates S/o Mr. Roger Marvin Coates and Ms. Cynthia Ann Coates
W/o Mr. Craig Allen Coates through Mrs. Rekha Arora Adoption Officer Welfare
Home for Children v. State through Indian Council for Child Welfare and Welfare
Home for Children33 whereby the Court held that where the adoptive parents fail to
establish clearly the motive for adopting a child from another country, then the adoption
process would be barred and be declared as malafide and that CARA (details regarding
CARA will be discussed later) should ensure more stricter guidelines in this regard.

However, the apex court in Anokha v. State of Rajasthan34 had held that the above
guidelines would not be applicable where the child is living with his or her biological
___
parent(s) and who have agreed that he or she is to be given in adoption to a foreign
___
couple known to them. The court in such cases has to deal with the application
___
___
___
___
___
___
___
___
___
31 Re: Rasiklal Chhaganlal Metha, A.I.R. 1982 Gujarat 193. ___
___
32 2010 CriLJ 883. ___
___
33 162(2009) DLT 605. ___
___
34 2006(1) Hindu Law Reporter 122. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

under section 735 of the Guardian and Wards Act 189036 and dispose of the same after
being satisfied that the child is being given in adoption voluntarily with the parents being
aware of the implications of adoption, i.e. that the child would legally belong to the
adoptive parents’ family; that the adoption is not induced by any extraneous reasons such
as the receipt of money etc; that the adoptive parents have produced evidence in support
of their suitability; and finally that the arrangement would be in the best interest of the
child.

However, the Supreme Court in St. Theresa’s Tender Loving Care Home and others v.
States of Andhra Pradesh 37, had dissented with the adoption procedures by observing
that –

“While making the requisite and prescribed exercise it has to be kept in

mind that the child is a precious gift and merely because he or she for
various reasons is abandoned by the parents that cannot be a reason for
further neglect by the society.”

___
___
___
___
___
___
___
35 7. Power of the court to make order as to guardianship ___
___
(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made- ___
(a) appointing a guardian of his person or property, or both, or ___
___
(b) declaring a person to be such a guardian, the court may make an order accordingly. ___
___
36 Guardian and Wards Act 1890, <http://wcd.nic.in/gawaact.htm> last accessed on Nov 6, 2010 at 9:45 ___
IST. ___
___
37 2006(1) Hindu Law Reporter 122. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

CHAPTER IV
1. CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)
The Central Adoption Resource Authority (CARA) is an Autonomous Body under the
Ministry of Women and Child Development, Government of India. Its mandate is to find
a loving and caring family for every orphan/destitute/surrendered child in the country.
The Central Adoption Resource Authority (CARA) was initially set up in 1990 under the
aegis of the Ministry of Welfare in pursuance of Cabinet decision dated 9 May 1990.
Pursuant to a decision of the Union Cabinet dated 2 July 1998, the then Ministry of
Social Justice and Empowerment conferred the autonomous status on CARA with effect
from 18 March 1999 by registering it as a Society under the Societies Registration Act,
1860. It was designated as Central Authority by the Ministry of Social Justice and
Empowerment on 17 July 2003 for the implementation of the Hague Convention on
___
Protection of Children & Cooperation in respect of Inter-country Adoption (1993). The
___
Ministry of Women & Child Development has of late been mandated to look after ___
the
___
subject matters ‘Adoption’ and ‘Juvenile Justice (Care & Protection of Children) Act,
___
___
2000’ pursuant to 16 February 2006 notification of Government of India regarding
___
reallocation of the Business.38 The goal is to find a family for as many orphan children___
as
___
___
possible and to safeguard their interests as visualized in the UN Convention on Child
___
Rights and Hague Convention on Inter-country Adoption (both ratified by India). 39 ___
___
38 About Central Adoption Resource Authority, <http://www.adoptionindia.nic.in/about_us.htm> ___ last
accessed on Nov 6, 2010 at 10:12 IST. ___
___
39 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last ___
accessed on Nov 7, 2010 at 7:22 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

The CARA Guidelines requires that every application from a foreigner wishing to adopt
a child must be sponsored by a social or child welfare agency recognised or licensed by
the government of the country in which the foreigner is resident. The agency should be
recognised by CARA. In-country Adoption of Indian children is governed by In-country
Guidelines-2004 while Inter-country Adoption procedure is governed by a set of
Guidelines last issued on 14 February 2006 (CARA guidelines). These Guidelines are a
follow up of various directions given by the Supreme Court of India in Laxmi Kant
Pandey v. Union of India.40 These Guidelines have been amended and updated from
time to time keeping in mind the welfare of such child. While CARA is engaged in
clearing inter-country adoption of Indian children, its principal aim is to promote in-
country adoption. In fact, CARA ensures that no Indian child is given for inter-country
adoption without him/her having been considered by Indian families residing in India.
CARA also provides financial assistance to various NGOs and Government run Homes
to promote quality child care to such children and place them in domestic adoption.41

While CARA is the nodal body set up at the governmental level, the actual functioning
of individual adoption agencies is monitored by Voluntary Coordinating Agencies
(VCA) like the Coordinating Voluntary Adoption Resource Agency (CVARA) in Delhi,
and other local bodies in other states.42

___
The local VCA in Delhi, CVARA was formed in 1984, on the recommendations of ___
the
___
Supreme Court. The ten adoption agencies that come under its umbrella are: ___
• SOS Children's Villages of India ___
___
• Holy Cross Social Service Centre ___
___
• Missionaries of Charity ___
___
• Church of North India ___
___
40 A.I.R. 1984 S.C. 469. ___
___
41 Supra note 38. ___
___
___
42 Adoption in India: the legal angle, <http://www.mothersspace.in/getting-pregnant/adoption/adoption-in-
india-the-legal-angle/35> last accessed on Nov 7, 2010 at 19:22 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

• Welfare Home for Children

• Delhi Council for Child Welfare
• Matri Chhaya
• Children of the World
• Right to Life Society
• Asharan orphanage

Prof. M.N. Das observed the importance of CARA guidelines in a precise manner in his
book that –

“Firstly, it will help to reduce, if not eliminate altogether, the possibility of profiteering
and trafficking in children, because if a foreigner were allowed to contact directly
agencies or individuals in India for the purpose of obtaining a child in adoption, he
might, in his anxiety to secure a child for adoption, be induced or persuaded to pay any
unconscionable or unreasonable amount which might be demanded by the agency or
individual procuring the child.

Secondly, it would be almost impossible for the court to satisfy itself that the foreigner
who wishes to take the child in adoption would be suitable as a parent for the child and
whether he would be able to provide a stable and secured family life to the child and
would be able to handle trans-racial, transcultural and trans-national problems likely to
arise from such adoption, because, where the application for adopting a child has ___
not
___
been sponsored by a social or child welfare agency in the country of the foreigner, there
___
___
would be no proper and satisfactory home study report on which the court can rely. ___
___
Thirdly, in such a case, where the application of a foreigner for taking a child___ in
___
adoption is made directly without the intervention of social or child welfare agency, there
___
___
would be no authority or agency in the country of the foreigner who could be made ___
___
responsible for supervising the progress of the child and ensuring that the child___ is
adopted at the earliest in accordance with law and grows up in an atmosphere of warmth ___
___
and affection with moral and material security assured to it.”43 ___
___
43 Guardians and Wards Act, Eastern Law House: India, 14th edition, 1995, pg 80–81. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

CARA will approve/authorize and maintain a list of all Enlisted Foreign Adoption
Agencies EFAAs) who can forward applications of foreign prospective adoptive parents
including NRIs (Non Resident Indians) to it for approval.44 It will recognize/accredit
Indian Placement Agencies for Inter-country Adoption (RIPA). It shall publish once a
year a list of RIPAs in leading national and vernaculars newspapers. CARA shall send
this list once a year to the High Courts in the country for circulation to the District
Courts. RIPAs shall function as accredited bodies as per the Hague Convention of 1993.
(Ref. Annexure B)

4.1.Procedure for adoption from India by NRIS/OCIS/ PIOS/Foreighners

In the light of Supreme Court directions in L.K.Pandey v. Union of India and guidelines
issued by various High Courts in the country and India ratifying Hague Convention on
Inter-country Country Adoption in the year 2003, it has now been decided to receive all
applications from all prospective NRI/OCI/PIO/Foreign adoptive parents directly from
Central Authority/Government Department or EFAA at CARA. The procedure will be
followed as under and termed as
“Adoption proceedings under the Hague Convention”.45

4.1.1.Step I (Registration for NRI/OCI/PIO/Foreign PAPs) ___

___
• All PAPs may register with the nearest Enlisted Foreign Adoption Agencies ___
___
(EFAA) and Central Authority/Government Department dealing with adoption ___
matters. Nearest Indian Diplomatic Mission or Central Adoption Resource ___
___
Agency, New Delhi are contact points for adoption information/application ___
___
form/checklist of documents. ___
___
___
___
44 Guidelines for Adoption from India, < http://www.adoptionindia.nic.in/adoptionfromindia.htm> last ___
accessed on Nov 7, 2010 at 7:22 IST. ___
___
45 Child Adoption Policies in india, < http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child___
%20Adoption%203%2007.doc>last accessed on Nov 7, 2010 at 7:22 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

• The applicants will have to contact or register with an Enlisted Foreign Adoption
Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they
are resident.46
• The applicants will have to contact or register with an Enlisted Foreign Adoption
Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they
are resident.

• The applicants should obtain the permission of the competent authority for
adopting a child from India. Where such Central Authorities or Government
departments are not available, then the applications may be sent by the EFAA
with requisite documents including documentary proof that the applicant is
permitted to adopt from India. However, NRI and OCI parents residing in Middle
East are exempted from such permission as adoption is not recognized in such
countries.
4.1.1.Step II (Home Study and Other requirements)

• A home study report of the prospective adoptive parents will be prepared based
on the standard Guidelines by the professional social worker of the EFAA or
Central Authority/Government Department dealing with adoption matters. The
adoption application should contain all documents prescribed in. All documents
___
___
are to be notarized. The signature of the notary is either to be attested by ___
the
___
Indian Embassy/High Commission or the appropriate Govt. Department of ___ the
___
receiving country. If the documents are in any language other than English, then ___
___
the originals must be accompanied by attested translations (see apostle ___
___
convention).47 ___
___
___
46 Procedure for Inter-country adoption, ___
<http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm> last accessed on Nov 7, 2010 at 4:54___
IST. ___
___
___
47 Apostle convention, <http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37> last accessed on
Nov 7, 2010 at 4:54 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

• Each application should include all the required documents along with
authentications and translations in English if required so. In addition, each
application should indicate any preferences the prospective adoptive parents
might have about the child’s age, sex, physical/medical condition, or region of
origin within India.

4.1.1.Step III (Advance NOC to PAPs by CARA)

• EFAA/CA/concerned Government Department of the receiving country has to

submit copies of the adoption applications (not original) directly to the CARA for
consideration. On receiving complete dossier, CARA shall make entry into the
central registry and approve the same.

• Applications may also be forwarded through concerned CA/Government

Department. On receiving dossaire, a case file will be opened at CARA and it
will advise the PAPs through their sponsoring agency whether additional
documents are required.
___
___
• Once CARA approves the application, it will communicate ___ the
___
EFAA/CA/Government Department to send the original proposal to the particular ___
RIPA for arranging a suitable match if already indicated on the application; ___
___
otherwise, CARA shall suggest the name of alternate SAA (RIPA) to send ___ its
___
original dossier where children are available for inter-country adoption to respond
___
___
to such applications. Initial approval given by CARA to the PAPs will no way ___
guarantee referral from India nor it will be obligatory on the part of CARA___ to
___
___
___
___
___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

match a child. Any referral depends upon availability of children for inter-country
adoption.48

4.1.1.Step IV (Matching, Referral, Consent and confirmation of adoption

proposal)

• SAA (RIPA) shall be responsible for placement decision, matching and referral to
PAPs in each case. RIPA need not transmit matching information to prospective
adopters directly, on the other hand, it will transmit such information to the
EFAA/CA/Govt. Department as the case may be as required under regulations of
Hague Convention.

• On receiving information about CARA’s initial approval and further original

dossier of the PAP, the SAA (RIPA) shall make every effort to match a child
according to the choice given by the PAPs and accordingly it shall forward the
sponsoring agency a copy of the CSR and PER of the child along with a letter of
introduction about the child. This document is commonly called a ‘referral.’

• Once the matching information has been received and discussed by the adoption
___
___
agency with the PAPs, the PAPs then may visit the child in India. At this stage,
___
___
the child can not be entrusted to PAPs as a result of this initial visits to/meetings
___
___
with, the child. ___
___
___
___
• On acceptance of the child by the PAPs, the sponsoring agency shall transmit___
its
___
original copy to RIPA and photocopy/scanning copy to CARA. CARA shall ___
maintain an online updating system to enable PAPs to see their status ___ of
___
applications. ___
___
48Draft Guidelines on Adoption, < http://csa.org.in/DRAFT%20GUIDELINES%20ON ___
%20ADOPTION.doc> last accessed on Nov 7, 2010 at 4:54 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

• If prospective adoptive parents are declined to accept referral in consecutive 3

times, in such case, the PAPs may be advised by the EFAA/CA/Government
Department to withdraw their application for adoption from India. SAA (RIPA)
requires a response on a referral within 4 weeks of sending a referral to a family.

• PAPs are advised to visit the proposed child if they so desire after referral. Copy
of any communication between SAA (RIPA) and foreign agency/authority shall
be endorsed to CARA and it will endorse copy of relevant communication to the
sponsoring agency or RIPA as the case may be.

• CARA shall maintain a list of special needs children on its website which will be
updated from time to time for the benefit of PAPs and children. For such
children, PAPs may approach CARA through their EFAA/CA/Government
Department and CARA in such cases shall assist the SAAs to expeditiously send
referrals to PAPs.

4.1.1.Step V (Issue of No Objection Certificate to Child by CARA)

___
___
• CARA shall expeditiously issue NOC at this stage since it has already received
___
___
HSR from the sponsoring agency, SARA Clearance from the State and CSR/PER ___
initially from SAA and later their acceptance through the sponsoring agency. ___
___
___
___
• NOC (No Objection Certificate) issued by CARA conveys that CARA has ___ no
___
objection to the adoption proposal and a copy of it shall be mailed to RIPA, ___
___
SARA, CA, EFAA. ___
___
___
• Once the PAPs have received they may proceed to obtain a Court Order in India___
___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

• No SAA can file an application in the competent court for inter-country adoption
without a “No Objection Certificate” from CARA and no child(orphan,
abandoned or surrendered) can be allowed to travel outside the country without
this valid document.

4.1.1.Step VI (Filing of Petition in the Court)

• On receipt of the NOC from CARA, the RIPA shall file a petition for adoption in
the competent court as far as possible within 15 days if the court is not closed.
The competent court may dispose the case as early as possible in the first hearing
itself or within a maximum period of 2 months and issue an appropriate order for
the placement of the child with the PAP and allow the PAP to take out of the
country.

• On receiving the Court Order, RIPA shall immediately transmit a copy of it to

CARA and SARA following which CARA will issue a certificate under Article
23 of the Hague Convention. The Hague Convention requires all States that have
signed the Convention to recognize adoptions, which have been certified under
___
___
Article 23. Through such process, the child might acquire automatic
___
___
citizenship/nationality and enjoy more safeguards. ___
___
___
4.1.1.Step VII (Passport and Visa) ___
___
___
___
___
___
___
___
___
___
___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

• SAA (RIPA) has to apply in the Regional Passport Office for obtaining an Indian
Passport in favour of the child. The concerned Regional Passport Officer may
issue the Passport within 10 days. Thereafter the VISA entry permit may be
issued by the Consulate/Embassy/High Commission of the concerned country for
the child.

4.1.1.Step VIII (Child travels to adoptive country)

• The adoptive parent/parents will have to come to India and accompany the child
back to their country. They are required to spend at least one week with the child.
By doing so, they get a chance to mingle with the baby before making final
departure, they get to know more information about the baby’s food habits and
attitudes from the child care staff of the adoption agency. Escorting a child by the
RIPA is not permitted.

CHAPTER V
1. STATUTES GOVERNING INTER-STATE ADOPTION IN INDIA
Adoption as a legal concept was available only among the members of the Hindu
___
___
community except where custom permits such adoption for any section of the polity.
___
Only Hindus were allowed to legally adopt the children and the other communities could
___
___
only act as legal guardians of the children. ___
___
The religion-specific nature of adoption laws was a very retrograde step. It reinforced
___
___
practices that were unjust to children and hindered the formation of a Uniform Civil___
___
Code. ___
___
Article 44 of the Constitution declares that: ___
___
“The State shall endeavor to secure for the citizens a Uniform Civil Code ___
___
throughout the territory of India.” ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

Over the years several attempts were made to formulate a general secular law on
adoption. The attempts of Parliament in this direction did not bear fruit, all these went in
vain on account of a number of reasons. The history of all such efforts does not bring
credit to the secular credentials of the Indian polity.

The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The
Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption
applicable to all communities other than the Muslim community, was opposed by the
Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt
Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the
seventies, has yet to enter the statute books. The history of attempt to bring in the
concept of secular adoption into our system of laws narrates a sad tale of inaction and
action without conviction on the part of the legislature.

5.1.Juvenile Justice (Care and Protection of Children) Act, 2006

The Juvenile Justice (Care and Protection of Children) Act, 2006 has been enacted
for the benefit of all the children as well as parents irrespective of their religion, caste
and gender.

Thus all such adoptable children who falls under the category of children in need of
___
___
care and protection49 shall be processed under this specific legislation by district courts,
___
city civil courts, family court and other appropriate courts as defined under the State
___
___
Juvenile Justice Rules and framed based on the above Act.50This Act focuses on child
___
___
legislation and guarantees rights to an adopted child as recognized under international
___
___
obligations by all Hague member countries. Thus, it will ensure that in cases of orphan,
___
___
___
___
___
49 Sec. 2 (d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 available ___
at <http://wcd.nic.in/childprot/jjact2000.pdf > last accessed on 15 Sep 2010 at 9:45 IST. ___
___
___
50 Rule 33 (5) of the Central Rules under the Juvenile Justice (Care & Protection of Children) Act, 2000.
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

abandoned and surrendered children which will have to be processed under the Act so
that isolated children have adequate safeguards in their placement.51

Sec.41 of Juvenile Justice Act, 2000 read with Rule 33(1) of Central Rules expresses the
following aspects of adoption:

"The primary aim of adoption is to provide a child who can’t be cared for
by his biological parents with a permanent substitute family. The family
of a child has the primary responsibility to provide him care and
protection. Orphan, abandoned or surrendered children can be adopted for
their rehabilitation through such mechanism as may be prescribed. Such
children may be given in adoption by a Court in keeping with the
provisions of several guidelines regarding adoption issued by the State
Govt./Central Adoption Resource Authority and notified by the Central
Govt. But the Court should be satisfied with the investigation having
carried out which are required for giving such children in adoption.”

The Children’s Homes and institutions run by the State Govt. or voluntary organizations
for children in need of care and protection who are orphan, abandoned or surrendered,
should ensure that these children are declared free for adoption by the Committee (Child
Welfare Committee) and such cases shall be referred to the adoption agency of that
___
district for their placement in adoption The guidelines issued by the CARA and notified
___
by the Central Govt. U/s 41(3) of the Act, shall apply for all matters relating___
to
___
adoption. Now, it is necessary to explain what Child Welfare Committee is? ___
___
As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression “Committee” means ___a
___
Child Welfare Committee constituted U/s 29 of the Act. Sec. 29 of the Juvenile Justice
___
___
Act, 2000 provides for the Child Welfare Committee. The Committee has the sole ___
___
authority to declare the child in need of care and protection who are orphan, abandoned
___
or surrendered free for adoption. CWC shall determine legal status of all orphans, ___
___
abandoned and surrendered children. Functions and powers of the Committee, procedure___
___
51 Section 41 of the Act, 2000. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

in relation to the Committee, production of child before committee, procedure for

inquiry, procedure related to orphan and abandoned children and procedure related to
surrendered children shall be governed as laid down in the Juvenile Justice Amendment
Act 2006 and its Rules.52

The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its
subsequent amendment in 2006 is definitely a significant effort of the legislature towards
recognition of adoption of orphan, abandoned and surrendered children by people
irrespective of their religious status. It can’t be denied that it is a secular legislation only
under which any person can adopt a child of orphan, abandoned and surrendered child
irrespective of his/her religion. It is more children oriented unlike other legislations. But
it may be mentioned at the same time that some more factors need to be considered
specifically by the legislature.

Firstly this Act stipulates adoption by any person irrespective of his/her marital status,
but it does not specify whether the consent of the other spouse is required to be obtained
by the adopting spouse in case adoption by a married couple. This might create
misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife
by her husband is an essential criteria for adoption.

Secondly, the expression “Court” has not been specifically defined for the purpose of
___
adoption under this Act as a result of unwarranted mistakes/misconception arises
___
frequently in filing the application for adoption by the adoptive parents. ___
___
Thirdly, the Act is silent about the criteria for age difference between the adoptee and ___
___
adoptive parents in case they are of opposite sex. This is an essential factor for adoption, ___
___
which should be considered seriously for the purpose of preventing child abuse and ___
___
trafficking. ___
___
___
___
___
___
___
52 Adoption Under juvenile Justice Act, < http://www.legalserviceindia.com/article/l327-Adoption-under-
Juvenile-Justice-Act.html> last accessed on 20 October 2010 at 23:44 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [5]

All these facts are obviously applicable to all religions and therefore, it is necessary to
specify them for the interest of the children. We should never forget the thrust of the
National Policy for the Welfare of Children (1974) that

“The Nation's children are a supremely important asset. Their nurture and
solicitude are our responsibility”.

CHAPTER VI
1. GUIDELINES PROVIDED BY UN
___
___
___
Under the Indian Constitution, Article 24 of the Indian Constitution provides for the right
___
against exploitation of the children below 14 years whereas Article 45 of the Directive ___
___
Principles of the State Policy in the Indian Constitution envisages for free and ___
___
compulsory education of children. At the International level, India has ratified ___ the
___
convention on the Rights of Child and the Hague Convention on inter- country adoption ___
of children. ___
___
In the current chapter we will discuss about the international guidelines regarding ___ the
___
inter-state adoptions. ___
___
___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

6.1.The Hague Convention and the ratification on inter-country adoption by the

Government of India on 6th June, 2003

Due to the increase in international adoptions, in 1993, the Hague Convention on the
Protection of Children and Co-operation in Respect of Inter-country Adoption was
signed to create an international framework for arranging and formalizing these
adoptions and to prevent its abuses.53The Convention relies on cooperation between
participating states to safeguard children in the adoption process.54The states of origin
takes the responsibility for ensuring that children are made "adoptable," (i.e. when all the
legal requirements are met) while the receiving states take the responsibility for the
suitability of the applicants and in the event of only where both agree that the adoption
should proceed can it be finalized.55 Adoptions are recognized whether they take place in
the state of origin or the receiving state.

The Hague Convention had set out a framework for inter-country adoption and provides
for its implementation through central authorities. Its main objectives is to improve inter-
country adoption along with providing child welfare solutions which is dependent both
on an adequate legal framework and adoption professionals who can centre the interests
of the child.

Since then, modern day adoptions have undergone transitions in response to growing
___
professionalism, specialization within welfare services, greater diversity in accepted
___
family units, the move from institutional to family care for children in need, and major
___
___
reductions in the number of babies surrendered for adoption. Together, all of these have
___
___
fundamentally changed the way adoption is systematized and the relationships created___
or
___
legalized by adoption. These developments have implications for inter-country adoption;
___
___
___
53 Articles 4, 5 and 17 of the Hague Convention, <http://www.hcch.net/upload/conventions/txt33en.pdf>
last accessed on 6 Nov 2010 at 23:44 IST. ___
___
54 <http://www.allbusiness.com/government/3493265-1.html> last accessed on 6 November 2010 at ___
23:44 IST. ___
___
55 Article 15 , 16, 17, 18 and 19 of the Hague Convention, ___
<http://www.hcch.net/upload/conventions/txt33en.pdf> last accessed on 6 Nov 2010 at 23:44 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

because they make understandings of good practice amongst adoption agents and
legislators, along with the fact that it is widely accepted with equivalent standards and
practices which should apply to all adoptions.

6.2.The Conventions on the Rights of the Child (CRC)

Except the United States, almost every sovereign nation, including India, adheres to the
CRC.56 The CRC’s objective in this regard is to “recognize that inter-country adoption
may be considered as an alternative means of child’s care, if the child cannot be placed in
a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s
country of origin.”57 However unlike the Hague Convention, the CRC specifically
prefers in-country foster care over inter-country adoption.58 This view has also been
supported by the United Nation’s Children Fund (UNICEF).59

The CRC thus seeks to ensure:

1. the use of the “best interests of the child”;60

2. safeguarding of the process in which adults (such as parents) relinquish children

for adoption, through a requirement of government approval, use of an “informed
consent” standard for relinquishments, and the provision of counselling “as may
be necessary”;61 and

___
56 Johan D. van der Vyver, “American Exceptionalism: Human Rights, International Criminal Justice, and
___
National Self-Righteousness,” 50 EMORY L.J., Pg. 775, 778 (2001)
___
57 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___
U.N. Doc. A/44/49 (1989), 28 I.L.M. 1448; art. 21(b), 28 I.L.M. at 146. ___
___
58 William L. Pierce, Accreditation of Those Who Arrange Adoptions Under the Hague Convention on ___
Intercountry Adoption as a Means of Protecting, Through Private International Law, the Rights of ___
Children, 12 J. CONTEMP. HEALTH L. & POL’Y 535, 538–40 (1996). ___
___
59 UNICEF, UNICEF’S Position on inter-country adoptions available ___
at <http://www.unicef.org/media/media_41918.html> last accessed on 6 November 2010 at 18:36 IST. ___
___
60 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___
U.N. Doc. A/44/49 (1989), Art. 3, para. 1 ___
___
61 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___
U.N. Doc. A/44/49 (1989), Art. 21(a). ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [1]

3. Government safeguards against improper financial gain in inter-country

adoption.62

CHAPTER V
___
___
___
C ONCLUSION ___
For quite a long time, there has been an increasing demand for a universal law ___ on
___
adoption which would enable any person who wishes to adopt a child can do ___ so
___
irrespective of his religion, race or caste. As all the major embassies in India follow ___
___
rigorous guidelines in dealing with adoption applications in the inter-country adoption ___
___
mechanism, the rate of refusal is extremely high without any room for compassion. With ___
___
___
___
62 Convention on Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, ___
U.N. Doc. A/44/49 (1989), Art. 21(d). ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [2]

the amount of formalities as demanded by the authorities, the childless non-resident

Indian and foreign couples face a lot of hassles and hardships.

Even after so many disputes, the revised guidelines of the Juvenile Justice Act have
failed to make a clear standing on this issue regarding inter-country adoptions. In the
case of John Clements v. All Concerned63 whereby the Andhra Pradesh High Court
observed that -

“Para 2.14 of the guidelines envisages that no application by foreigner

for taking a child in adoption should be entertained directly by any
social child welfare agency in India working in the areas of inter-
country adoption or by any institution or centre or Home to which
children are committed by the Juvenile Court. However, the very next
paragraph says “the original application along with original
documents as prescribed by the Supreme Court of India would be
forwarded by the foreign enlisted agency to a recognised placement
agency in India”.64

Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the
judgment of the Supreme Court and started directly approaching the adoption agencies
in India. They then take the Indian children in adoption with their involvement and active
___
support of CARA officials, who are simply putting their seal of approval without
___
inspecting the records of such adoption which is taking place. As a result, trafficking___
in
___
female children is going on unrestricted in violation of the guidelines given by ___
the
___
Supreme Court. ___
___
Consequently, the present loophole of law came to light and thereafter the Government ___
___
of Andhra Pradesh issued the Andhra Pradesh Orphanages and other Charitable Homes ___
___
___
63 AP (2003) 2 Hindu Law Reporter 331 ___
___
___
64 Inter-country adoptions in India, < http://www.docstoc.com/docs/18657623/INTER-COUNTRY-
___
ADOPTION-IN-INDIA> last accessed on 6 November 2010 at 20:43 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [3]

(Supervision and Control) Rules.65 It states that “relinquishment” of child by “biological

parents” on family grounds of poverty, number of children, unwanted girl child will not
be permitted. Such children should not be admitted in Homes or “Orphanages” and, it
admitted, the license and recognition of Home or Orphanage shall be cancelled or
withdrawn.’66

All adoptions are to be processed by maintaining proper precautions and by compliance

of due process of law, both in India and abroad. The core issues lies in the recognition of
adoption orders handed down by the designated courts in India through the amended
provisions of the Juvenile Justice Act of 2006.

The agencies in receiving countries need to be conscious of the general living conditions
for children in sending countries as well as their culture, laws and practice. Similarly,
agencies in sending countries need to be aware of the conditions in the countries where
children are being sent. Where strong links are made between agencies and countries,
adopters and children are more likely to be able to share their happy experiences with
others. This can alleviate the isolation that people adopted outside their country of origin
can feel.67

It is a common situation in India that the judges dealing with adoption cases, especially
in small towns and cities in India, are not predominantly acquainted with the
___
interpretation of the inter-country adoption Guidelines as discussed in this article. Hence,
___
in this regard, a uniform but stringent procedure must be developed which can be easily
___
___
followed and observed in regard to human spirit. For the entire adoption process, ___
all
___
procedural hurdles along with legal and official procedures are required to be met for
___a
___
smooth adoption process without any abuse. However, separate and sophisticated ___
___
adoption and immigration procedures often leave foreign adopting parents in confusion
___
65 GO Ms No 16, dated 18.04.2001 ___
___
66 In para 11 (VII) of the Andhra Pradesh Orphanages and other Charitable Homes (Supervision ___ and
Control) Rule, 2001 ___
___
___
67 J.S. Sjoren, "A Ghost in My Own Country," Adoption and Fostering 20, 2 (1996) pp. 32-35; S. Jardine,
"In Whose Interests?" in P. Selman, ed., p. 488 ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [4]

over differing interpretations as to the prevailing laws of the home country and the
adoption country.

Thus the adoption process in India is tedious and is involved by all sorts of unnecessary
legal and social restrictions. It is an irony that in a country with so many homeless
children, there’s a long waiting list of couples waiting to adopt them. Therefore, it is
required that the entire adoption process and procedures are revamped so that they
conform to a uniform pattern (like an Uniform Civil code as provided under Article 44 of
the Constitution of India) which will make the process more suitable, less burdensome
and easier to follow. The paramount importance is the keeping the best interest of the
child along with both the letter and spirit of law to be adhered to. 68

A system needs to be created whereby these multiple adoption agencies must be declared
free from corruption through bribery and personal connections. Once it becomes
apparent that approvals are based on such personal connections or monetary
inducements, incentives to follow the rules may disappear. The presence of money can
subvert the fundamental principles of inter-country adoption, which favour the
maintenance of the child within the birth family, where feasible, and favour in-country
adoptive placement over inter-country adoption. There must be some legislation in place
to prevent couples from going for adoption even after having one or two biological
children of their own, like we have the celebrity Angelina Jolie who is in the process___
of
___
adopting another child even after having three biological children of her own and three
___
___
adopted ones.69 ___
___
Since foreign money is available, Indian agencies may be transformed from social ___
___
welfare organizations assisting families and orphans to foreign adoption profiteers ___
scouting the countryside for children. Instead of offering counselling, services, or help ___
___
___
68 <http://www.allindiareporter.in/articles/index.php?article=1543> last accessed on 6 November 2010 at
___
18:36 IST.
___
___
69 Angelina Jolie and Brad Pitt to adopt child number seven, ___
<http://www.telegraph.co.uk/news/newstopics/celebritynews/3211078/Angelina-Jolie-and-Brad-Pitt-to-___
adopt-child-number-seven.html> last accessed on 6 November 2010 at 18:36 IST. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [5]

designed to allow a child to remain within her birth family, agencies will systematically
offer money to birth parents to induce relinquishment. Agencies will thus go into the
business of deliberately producing “paper” orphans, who when placed in foreign
adoption become an immensely profitable product. Similarly, obstacles to in-country
adoption will be systematically constructed when proportionately huge amounts of
money can be made for foreign placements. Agencies will prefer to place a child out-of
country and receive literally thousands of dollars, a year’s salary for a middle class
Indian, rather than place the child in-country and receive less than $100.70 This needs to
be avoided.

It has been seen that the children are a supreme and chief asset to the nation. The nation’s
responsibilities are to nurture them as they are the future citizens of the country. All the
Children’s programs should be given a conspicuous part in the 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.71 The aim is to provide equal opportunities for development to all
children during the period of growth, as this will serve larger purposes of reducing
inequality and increasing social justice.

Those who care about children should act now to preserve and promote international
adoption. It represents the best option for existing orphan children. It serves the interests
___
___
of birth parents who care about the children they cannot raise. It brings new resources
___
into poor sending countries to help improve conditions for the children left behind.___
___
It
___
represents the way forward to a world in which we recognize children as citizens of a ___
___
global community with basic human rights entitlements, a world in which we recognize ___
___
adults in that community as having responsibilities to all its members. ___
___
___
70 Conflict Of Laws In Inter - Country Adoptions – An Indian Perspective, ___
<http://www.allindiareporter.in/articles/index.php?article=1543> last accessed on 6 November 2010___
at
___
3:21 IST. ___
___
71Ibid. ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [7]

To conclude this research paper, I would like to bring into notice the conclusions drawn
up by the national policy of India for welfare of children in India.The idea is to protect
the abandoned and destitute children and help them to find a family as far 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. 72 The ‘Best Interest
of the Child’ is the guiding principle behind all adoption laws in India and social
awareness programs has helped to change the attitude of society and people towards
adoption in India.73

After going through the plethora of thoughts as discussed in this article, we can divide
our conclusion into two schools of thoughts i.e. the traditional and the contemporary.
Under the traditional school, we have the Uniform Civil Code as provided under Art – 44
of the Indian Constitution along with various other Constitutional and Civil provisions.
On the other hand under the Contemporary school, we have the modern Public
International Law. The Government of India should come up with a model to facilitate
inter-country adoptions in a smoother and hassle freeway. The laws should be made
uniform for all religious communities and the government agencies which are involved
in adoption procedures should work hand in hand for the best interest of the child and
also for the adoptive parents. Selfish interests should be removed. The international
community and the laws should also try to pitch in with their efforts in helping the
___
parents going for inter-country adoption in a less complicated way. Above all, ___
the
___
countries of the world should coordinate with each other for the betterment of ___
the
___
child who will be the future citizens of their respective countries. ___
___
___
___
___
___
___
___
72 National Policy for the Welfare of Children, 1974 available at http://www.indg.in/primary- ___
education/policiesandschemes/national_policy_for_children_1974.pdf last accessed on 12-11-2010 ___
___
73 A.S. Shenoy, Child Adoption Policies in India- A Review available at <www.icsw.org/.../A%20S ___
%20Shenoy%20Paper%20Child%20Adoption%203%2007.d> last accessed on 12-11- 2010 ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [8]

BIBLIOGRAPHY

Other Authorities
Johan D. van der Vyver, American Exceptionalism: Human Rights, International
Criminal Justice, and National Self-Righteousness, 50 EMORY L.J., (2001)
William L. Pierce, Accreditation of Those Who Arrange Adoptions Under the Hague
Convention on Intercountry Adoption as a Means of Protecting, Through Private
International Law, the Rights of Children, 12 J. CONTEMP. HEALTH L. & POL’Y
535, 538–40 (1996).
Books Reffered
Gupte, A.G., Hindu Law, Premier Publishing Co., Allahabad, 2003.
Preet, Gagan, Hindu Adoption-A journey from Past to Present, Paradise Publishers,
Jaipur, 2010.
Internet source cited

< http://www.adoptionindia.nic.in/about_us.htm>
< http://www.adoptionindia.nic.in/adoptionfromindia.htm>
< http://www.adoptivefamilies.com/news.php>
< http://www.c-c-c.org/>
< http://www.docstoc.com/docs/18657623/INTER-COUNTRY-ADOPTION-IN-
INDIA>.............................................................................................................................
< http://www.icsw.org/doc/A%20S%20Shenoy%20Paper%20Child%20Adoption
%203%2007.doc>
< http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-
Act.html>
<http://en.wikipedia.org/wiki/International_adoption> ___
<http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37> ___
<http://uai-news.blogspot.com/2010/01/malawi-as-example-for-haiti.html> ___
___
<http://www.adoptionindia.nic.in/about_us.htm> ___
<http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm> ___
<http://www.allbusiness.com/government/3493265-1.html> ___
<http://www.britannica.com/EBchecked/topic/6298/adoption> ___
<http://www.dillonadopt.com/Korea-A.htm> ___
___
<http://www.hcch.net/upload/conventions/txt33en.pdf> ___
<http://www.legalservicesindia.com/articles/adopt.htm> ___
<http://www.mothersspace.in/getting-pregnant/adoption/adoption-in-india-the-legal- ___
angle/35> ___
<www.icsw.org/.../A%20S%20Shenoy%20Paper%20Child%20Adoption ___
___
%203%2007.d>................................................................................................................. ___
<http://china.adoption.com/> ___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [9]

Journals cited

Farr, Rachel H., Parenting and Child Development in Adoptive Families: Does Parental
Sexual Orientation Matter?, 2010
Smolin, David M., The Two Faces of Inter country Adoption: The Significance of the
Indian Adoption Scandals, Seton Hall Law Review, Vol. 35:403

___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
___
PROJECT SUBMISSION ON PARTIAL FULFILLMENT OF THIRD SEMESTER ___
___
___
___
___
___
___
_
 [6]

__________________________________________________________________________________
__________________________________________________________________________________

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT