MEANING & CONCEPT OF ADOPTION

Compiled by:
Ahmar Afaq
Assistant Professor
Symbiosis Law School Hyderabad
INTRODUCTION:

For many people, having a child is the ultimate dream. Sharing their love and
raising a family can truly make their lifetime picture complete. Unfortunately,
though, for some, the inability to have children can be extremely heartbreaking and
devastating to their future plans. And at the same time there are children without a
family, longing for a love and care of a family. In both the situations the children
as well as the couples both are in need of each other. They both can add color to
each other’s lives and can get each other out of the grey they are in either due to
the harshness of the nature or due to their own mistakes. For such intending
couples and the needy children the concept of ‘Adoption’ is a great mechanism and
helps them to complete the family picture and the circle of love and care. By
adopting a child, couples not only help a child grow up in a loving and caring
environment, they share in the vision of a bright, positive future. Adoption not only
enriches the life of a child, but enriches the life of the adopting couples as well.
This is one of the reasons that the concept of Adoption is ancient as the human
civilization and the ancient religious texts as well as mythological stories find
adoption finely embedded in them. Adoption is a way to provide parenting care to
children whose biological mothers and fathers have no opportunities or wish to
take care of them. It is a procedure that establishes a lifelong legally-recognized
relationship between an adoptive parent and a child. In such case, a parenting
figure takes on all the responsibilities of the adopted child’s safety, education,
healthcare, development of life skills, welfare, and other factors regarding to the
child.
MEANING &CONCEPT OF ADOPTION:

Adoption is the legal act of permanently placing a child with a parent or parents
other than the biological parents. Adoption results in the severing of the parental
responsibilities and rights of the parents and the placing of those responsibilities
and rights onto the adoptive parents. It is a worldwide institution. Almost all
religions and mythologies contain some reference or other to adoption. In
contemporary world, the thirst of concept of adoption has changed from providing
child to childless to providing home to homeless.1

Adoption is the institutionalized practice through which an individual belonging by

birth to one kinship group acquires new kinship ties that are socially and legally
defined as equivalent to the to the congenital ties. These new ties supersede the old
ones either wholly or in part.2 Adoption is a legal proceeding that creates a parent-
child relation between persons not related by blood; the adopted child is entitled to
all privileges belonging to a natural child of the adoptive parents (including the
right to inherit). Adoption comes from the Old French word ‘adoptare’, meaning
"to choose for oneself.”3

The honorable Supreme Court of India in Laxmi Kant Pandey vs. Union of India
defined adoption as, “Adoption means the process through which the adopted child
is permanently separated from his parents and becomes the legitimate child of his
adoptive parents with all the rights, privileges and responsibilities that are attached
to the relationship.”4
1
Baltimore, Diana L., Understanding the concept of adoption: a qualitative analysis with adoptees and their
parents 158, (St. Martin’s Press, New York, edn., 2008).
2
Prof. Kusum, Family Law-I 321 (Lexis Nexis, New Delhi, 3rd edn. 2013)
3
Available at: https://www.vocabulary.com/dictionary/adoption (Visited on 12 July, 2016)
4
AIR 1984 SC 469
It can also be said to be a transplantation of a child from the family in which he
was born to another family where he is given by the natural parents by way of gift.
The adopted child is thus taken as having been born in the new family. He acquires
all the rights and status in this new family and his all the ties with the old family
comes to an end.5

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, taking in a son or a daughter as one’s own natural born son or daughter.
Thus, traditionally speaking it is a remedy for the childless couple to have the
child. It is an act of establishing a person as parent to one who is not in fact or in
law his child it is the taking of a 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 was their own.6

Adoption is a complex social phenomenon, intimately knitted into its family law
framework and shaped by the pressures affecting the family in its local social
context. Once adoption is complete, all the rights, obligations and control of the
natural born family ceases to exist over the child, while new rights come 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 responsibility of the child. With adoption, old ties are severed
oft and new ties are attached with respect to the adoptee. The main objective of any
5
Prof. U.P.D. Kesari, Modern Hindu Law (Central Law Publications, Allahabad, 8th edn., 2011)
6
Ashbel Green, Lectures on the Shorter catechism of the Presbyterian Church in the United States of America 402
(Presbyterian Board Of Publication, Philadelphia, 1841)
law relating to adoption is providing a child to a person who is childless and in this
manner fulfilling the individual interest of that person. Even in the modern law the
primary objective of providing a child to childless persons remains the same.7

Merriam Webster’s dictionary defines it as, “to take voluntarily (a child of other
parents) as one's own child especially in compliance with formal legal
procedures.”8 In the language provided on the Wikipedia, “Adoption is a process
whereby a person assumes the parenting of another, usually a child, and or animal
from that person's biological or legal parent or parents, and, in so doing,
permanently transfers all rights and responsibilities, along with filiation, from the
biological parent or parents. Unlike guardianship or other systems designed for the
care of the young, adoption is intended to effect a permanent change in status and
as such requires societal recognition, either through legal or religious sanction.”9

The New Encyclopedia Britannica Vol.-I defines it as, “An adoption is the act of
establishing a person as parent to one who is not in fact or in law his child. Thus
adoption signifies the means by which a status or legal relationship of parent and
child between persons who are not so related by nature is established or created.”10

“Adoption- legal process pursuant to state statute in which a child’s legal rights
and duties towards his natural parents are terminated and similar rights and duties
towards his adoptive parents are substituted. To take into one’s family the child of
another and give him or her the rights, privileges, and duties of a child and heir.

7
Kerry 0 ‘Halloran, The Politics of Adoption 7 (Springer Publications, Netherlands, 2nd edn., 2011)
8
Available at: http://www.merriam-webster.com/dictionary/adopt#legalDictionary (Visited on 12 July, 2016).
9
Available at: https://en.wikipedia.org/wiki/Adoption (Visited on 12 July, 2016)
10
Available at: https://www.britannica.com/topic/adoption-kinship (Visited on 13 July, 2016)
The procedure is entirely statutory and has no historical basis in common law.
Most adoptions are through agency placements”, provides the Black’s Dictionary.11

“Adoption (like giving biological) ultimately involves a leap of faith. After we

have thought and considered and compared and planned, there still comes that
point where we just have to trust our emotions”, states the Barker Foundation.12
Adoption can be described as a two-step judicial process in conformance to state
statutory provisions in which the legal obligations and rights of a child towards the
parents are terminated and new rights and obligations are created between the child
and the adoptive parents. Adoption involves the creation of the parent-child
relationship between individuals who are not naturally so related. The adopted
child is given the rights, privileges and duties of a child and heir by the adoptive
family. An adult assumes the role of parent for a child other than his or her own
biological offspring through the process of adoption. Informal adoptions occur
when a relative or step-parent assumes permanent parental responsibilities without
court involvement. However, legally recognized adoptions require a court or other
government agency to award permanent custody of a child (or, occasionally, an
older individual) to adoptive parents. Specific requirements for adoption vary
among states and countries.

MODES OF ADOPTION:

11
Available at: thelawdictionary.org/adoption/ (Visited on 15 July, 2016)
12
R. Mathur, Conceptualizing Inter-Country Adoption: Meaning, Definitions & Modes, at p. 9, available
at: shodhganga.inflibnet.ac.in/bitstream/10603/4130/5/05_contents.pdf (Visited on 20 July, 2016)
There are various modes of adoption prevailing in the society at the moment and to
understand the same the division in the following manner will be easy to
understand:

A) De facto - Adoption is a Voidable agreement to adopt a child, based on a

statutory proceeding in a particular state, which becomes lawful when the petition
to adopt is properly presented.13

B) Equitable or estoppel adoption - It is sometimes referred to as virtual adoption,

is treated by the law as final for certain purposes in spite of the fact that it has not
been formally executed. When adoption appears to comply with standards of
fairness and justice, some states will grant a child the rights of one who has been
adopted even though the adoption procedure is incomplete. An equitable adoption
might be enforced by the court for the benefit of a child in order to determine
inheritance rights, for example, estoppel is the equitable adoption of a child by
promises and acts that prevent the adoptive parents and their estates from denying
the child adoptive status. Equitable Adoption, “refers to situation involving oral
contract to adopt child, fully performed except that there was no statutory
adoption, and in which rule is applied for benefit of child in determination of
heirship upon death of person contracting to adopt. In certain jurisdictions a child
has rights of inheritance of person who has contracted to adopt him but has not
done so.14

C) In trans-racial adoptions - Children are placed with an adoptive family of

another race. These adoptions may be through public and private agencies or be

13
Id. at p. 10
14
Ibid.
independent, but most trans-racial adoptions take place through the public child
welfare system.

D) Foster care adoption - It is a type of domestic adoption where the child is

initially placed into a foster care system and is subsequently placed for adoption.
Children may be placed into foster care for a variety of reasons, including removal
from the home of the biological family by a governmental agency because of
maltreatment of the child by the biological family. Maltreatment can take the form
of neglect or abuse. In most adoptions regarding foster children, the foster parents
decide to adopt and become the legal parents. In some jurisdictions, adoptive
parents are licensed as and technically considered foster parents while the adoption
is being finalized. Not all adoptions are from outside of the family.

E) An intra-family adoption – It occurs when a child is adopted by an existing

close family member and/or his or her partner. A common example is a "step-
parent adoption", where the new partner of a parent may legally adopt a child from
the parent's previous relationship. Intra-family adoption can also occur through
surrender, as a result of parental death, or when the biological parent cannot care
for the child and a family member agrees to take over.15

Further the adoptions can also be divided on the basis of locations and they are as
follows:

A) Domestic Adoption - A domestic adoption is the placement of a child for

adoption within the country in which he or she was born and normally
resides.
15
Ibid.
B) Inter-country Adoption - Inter country or non domicile adoption occurs outside
adopted child’s birth country. It can be done through private as well as public
agencies.

Contemporary modern world adoptions can also be divided into A) Open and B)
Closed Adoption, which are detailed as under:

A. Open Adoption

Open adoption allows identifying information to be communicated between

adoptive and parents and, perhaps, interaction between kin and the adopted person.
Rarely, it is the outgrowth of laws that maintain an adoptee's right to unaltered
biological certificates and/or adoption records, but such access is not universal (it
is possible in a few jurisdictions - including the U.K. and six States in the U.S.).
More often, open adoption is an informal arrangement subject to termination by
adoptive parents who have sole authority over the child (in some jurisdictions, the
and adoptive parents may enter into a binding agreement concerning visitation,
exchange of information, or other interaction regarding the child, however).

B. Closed Adoption

The practice of closed adoption, the norm for most of modern history seals all
identifying information, maintaining it as secret and baring disclosure of the
adoptive parents', kins', and adoptees' identities. Nevertheless, closed adoption,
may allow the transmittal of non-identifying information such as medical history
and religious and ethnic background. Today, as a result of safe haven laws (Safe
Haven law, also known in some states as Baby Moses law, is the popular name for
United States laws that decriminalize leaving unharmed infants with statutorily
designated private persons so that the child becomes a ward of the state.
"Safe Haven" laws typically let parents remain nameless to the court, often using a
numbered bracelet system as the only means of linking the baby to the mother.),
passed by some U.S. states, closed adoption is seeing renewed influence. In safe-
haven states, infants can be left, anonymously, at hospitals, fire departments, or
police stations within a few days of biological, a practice criticized by some
adoptee advocacy organizations as being retrograde and dangerous.16

NATURE OF ADOPTION:

The adoption of the child is done for many purposes some pertaining to religion
and the other to the society. As we see in the ancient Hindu law the object of the
adoption is very strictly adhered to the religious purpose. According to Hindu
mythology, a Hindu without a son cannot achieve salvation. Though with the
enactments with regard to the same flowing into the Indian laws the scenario is a
bit different today. The custom and practice of adoption is not a recent one, though
the object of adopting a child has varied from humanitarian motive of caring and
bringing up a neglected or destitute child, to a natural desire for a son as an object
of affection, a caretaker in old age, and an heir after death.17 So the purpose may be
the religious or the secular one but what is to be taken into consideration that it
should have been done with a bona-fide intention and there must not be an evil or
mala-fide intention behind the same. The nature of the adoption has been discussed
16
Open vs. Closed Adoption, available at: https://www.americanadoptions.com/adopt/open_adoption (visited on
20 July, 2016)
17
Supra note 2, at p. 327
by various courts in various judgments. The major view was held to be that the
adoption should not be done with an evil motive, i.e. solely done with a view to
divert the nature of the succession; rather it should be done by the childless couple
with a bona fide intention. The excerpts from the judgments discussed below
explain the nature of the adoption as explained by the Indian courts of law at
various instances.

In the case of Rahasa Pandiani v. Gokulnanda Panda18, it was held that:

“An adoption would divert the normal and the natural course of the succession.
Therefore, the court has to be extremely alert and vigilant to guard against being
ensnared by schemers who indulge in the unscrupulous practices out of their lust of
the property. If there are any suspicious circumstances, just as the pro-pounder of
the will is to oblige to dispel the cloud of the suspicion, the burden is on one who
claims to have been adopted to dispel the same beyond reasonable doubt. in the
case of an adoption which is claimed on the basis of oral evidence and is not
supported by a registered document or any other evidence of the clinching nature,
if there exist suspicious circumstances, the same must be explained to the
satisfaction of the conscience of the court by the party contending that there was
such an adoption”.

In another case of Kishori Lal v. Chaltibai19, same thing was reiterated by the
Supreme Court case that the adoption should be free from the suspicion of the
fraud or any other ingredient providing the ill flavor to the adoption. It was held in
this case that: “As an adoption results in changing the course of the succession,
depriving wives and the daughters of their right and the transferring properties to

18
AIR 1987 SC 962
19
1959 AIR 504
the comparative strangers or more remote relations it is necessary that the evidence
to support it should be such that it is free from all suspicion of fraud and so
consistent and probable as to leave no occasion for doubting its truth”.

Thus, these particular judgments portray that the nature of the adoption should not
be scrupulous or with mala fide intentions as the natural course of the succession is
affected by the same.

CONCLUSION:

Adoption is one of those fictions of law which have marshaled for the furtherance
of the individual interest. Adoption enables a childless person to make somebody
else’s child as his own. Upon adoption, the adopted child gets the name of his
adoptive parents. Though, by nature there are no ties or link between the adoptive
child and the adoptive family, but by the fiction of law, new ties are created
between them. Apart from new rights, certain obligations are also created on the
part of the adopted child also on the part of the family. All the ties between the
natural family and the child are severed off, keeping one exception alive that he
cannot marry any of the members of the natural family with whom he could not
marry when he/she was the part of the natural family. The types of adoptions are
divided on the basis of modes and locations and at the same time on the basis of
contemporary modern world features where the difference of the revelation of
identity of the natural parents becomes the distinguish feature. As far as the nature
of adoption is concerned the laws and the courts have always been of the opinion
that the adoption must be a bona fide one and there must not be any mala fide
intention behind the same. The adoptions to defeat the operation of law or to create
hindrance in other persons’ rights are dealt strictly by the courts and it is also
affirmed by the courts that they have to be vigilant in these matters so that the
check and balance can be made on the malicious practices relating to the same.