ROLL NO.

063 COMPARITIVE STUDY OF ADOPTION LAWS IN INDIA AND USA

TULIKA ANAND BBA LL.B "A" 2nd YEAR ROLL NO. 063

ADOPTION
Adoption refers to the act by which an adult formally becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and terminates any legal rights then in existence with the natural parents. While certain jurisdictions only permit one of the two types of adoptions, other jurisdictions recognize two types of adoptions open and closed adoptions. An open adoption permits the birth mother to select her childs adoptive parents. A closed adoption, meanwhile, results in the birth mother relinquishing all rights over the child and allows a state administrative agency to conduct the selection process. Some jurisdictions also permit the parents in an open adoption to maintain their visitation and contact rights.

Adoption laws in USA

1. Methods of Adoption
THREE PRIMARY WAYS TO ADOPT IN THE UNITED STATES Foster care adoption: Children adopted from foster care are those who, prior to their adoption, were involved with the child protective services system and removed from their families due to their families inability or unwillingness to provide appropriate care. Public child welfare agencies oversee such adoptions, although they may contract with private adoption agencies to perform some adoption functions. Private domestic adoption: This group is defined here as children who were adopted privately from within the United States, and who were not part of the foster care system at any time prior to their adoption. Such adoptions may be arranged independently or through private adoption agencies. International adoption: This group includes children who originated from countries other than the United States. Typically, adoptive parents work with private U.S. adoption agencies, which coordinate with adoption agencies and other entities in childrens countries of origin.

Parents looking to adopt can choose one of two methods an agency or through independent contact with the biological parents. Both public agencies and private agencies exist for the purpose of facilitating adoptions. States run the public agencies, as a state interest exists in placing parentless children with couples looking to adopt. By the time a public agency becomes involved, the natural parents have already relinquished their rights and therefore lack all control over the process. Public agencies employ a stringent test to determine the suitability of parents looking to adopt. With adoptions through public agencies, adoptive parents do not have the child placed with them until the natural parents have relinquished their rights. Both public and private agencies abide by these practices. With independent adoptions, the natural parents take on the responsibility for finding suitable adoptive parents. Often, the natural parents will place the child in the prospective adoptive parents house for a trial period without the natural parents having relinquished their rights.

2. Who may adopt

The U.S. Constitution does not provide a fundamental right to adopt.1 Unless statutory authority exists, one may not adopt a child by private agreement unless an enabling statute exists. However, under certain circumstances, a court may find a child to have been equitably adopted, and grant the child certain rights that an adopted child otherwise would have. Statutes determine the requirements regarding who may adopt in a given state. Most states have modelled their adoption statutes upon the Uniform Adoption Act. The Uniform Adoption Act provides that any individual may adopt another individual in an effort to create the legal relationship of child and parent, subject to the adopting individual having reached adulthood. States vary with regard to factors they consider as disqualifying ones ability to adopt. Some statutes disqualify unmarried or single individuals. The Uniform Adoption Act does not prohibit the unmarried from adopting. Others disqualify those suffering from physical or mental disabilities. Some states have imposed reputability requirements. Under a reputability requirement, individuals with criminal histories or employment instability would not qualify as suitable for adoption. To proceed, an individual cannot petition for adoption unless the court makes an official finding that the individual is acceptable as an adoptive parent. Before an adoption becomes official, the court must pass upon an investigatory report submitted by the state agency that the individual qualifies as acceptably suitable for becoming an adoptive parent. These investigatory reports are tremendously detailed, including the petitioners religious
1

Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989

backgrounds, social history, financial status, moral fitness, mental and physical fitness, and criminal background. After weighing the factors, the agency makes a recommendation, which the court can accept or reject, with the court basing its decision on serving the best interests and welfare of the child. Many states, including Florida, Nebraska, and Oklahoma have restricted gays and lesbians from adopting children. But because adoption does not constitute a fundamental right, court challenges to the constitutionality of these restrictions have not worked thus far. Legislatures have enacted these statutes upon the premise that child rearing by gays and lesbians would not be in the best interests of the child. Other jurisdictions may only consider sexual orientation as one factor when considering if a parent fits the acceptability requirement.

3. Procedure for adoption

All domestic adoptions need to be finalized in court. The process varies from State to State. Generally a child must have lived with the adoptive family for at least 6 months before the adoption can be legally finalized. During this time, a social worker may visit several times to ensure the child is well cared for and to write up the required court reports After that, an individual wishing to adopt must petition the court to grant adoption, presenting evidence that they have satisfied the necessary statutory elements. After an investigation, the state adoption agency presents its report of the petitioners to the court and makes a recommendation. When the statute requires their consent, due process accords the natural parents an opportunity to be heard by the court on the matter. If the court cannot find the natural parents, the court must take steps reasonably calculated to notify the parents about the termination proceeding. For situations in which the natural parent cannot or does not want to care for the child, the natural parents wishes for the childs placement receive significant weight from the court. The petitioner bears the burden of proving by a preponderance of the evidence that adoption is in the childs best interests. An adoptive parent looking to terminate the biological parents natural rights must show the action to be in the childs best interest by clear and convincing evidence.

PRIOR TO ADOPTION, prospective adoptive parents undergo an assessment, often called a home study2. The purpose of this assessment is to identify families appropriateness and readiness for adoption. Specific requirements vary across jurisdictions and depend upon the type of adoption, but often involve training, individual and family interviews, home safety inspections, and reviews of records (such as health evaluations, child abuse and criminal clearances, and driving records).

4. Intestate inheritance rights for adopted persons

Birth parents and adopted children :
Generally, the court decree that finalizes the adoption ends the legal relationship between the birth parent (also referred to as the biological or natural parent in the statutes) and the adopted child. There are, however, exceptions to this policy in some States. For example: Alaska, Idaho, Illinois, and Maine provide for a continuation of inheritance rights if so stated in the adoption decree. In Kansas, Louisiana, Rhode Island, Texas, and Wyoming, an adoption decree terminates the right of the birth parent to inherit from the adopted child, but the adopted child may still inherit from the birth parent. Illinois allows the birth parents to acquire from the adopted childs estate any property gained from them as a gift, through a will, or under intestate laws. In Pennsylvania, an adopted person may inherit from the estate of a birth relative, other than a birth parent, who has maintained a familial relationship with the adopted person. In approximately 14 States, if a child is adopted by a stepmother or stepfather after his or her birth parent dies (as long as the deceased parents parental rights had not been terminated prior to his or her death), the adopted childs right of inheritance from or through the deceased birth parent or any biological relative is unaffected by the adoption.3 Adoption by the spouse of a birth parent generally has no effect on the right of the adopted child to inherit from or through that birth parent. In 10 States, when a child has been adopted
2

A home study involves education, preparation, and gathering information about the prospective adoptive parents. 3 T he word approximately is used to stress the fact that States frequently amend their laws. This information is current through April 2012. The States that provide for inheritance from a deceased birth parent are Alaska, Connecticut, Florida, Georgia, Idaho, Iowa, Massachusetts, Minnesota, New Jersey, North Dakota, Ohio, Oregon, Tennessee, and Wisconsin.

by a stepparent, the child may inherit from either birth parent, depending on the circumstances.4

Adoptive parents and adoptive children

The adopted child is treated by law as if he or she had been born to the adopting parents upon the entry of the final adoption decree. The adopted child, therefore, gains the right to inherit from the adoptive parents and adoptive parents relatives. Adoptive parents and other adoptive relatives also gain the right to inherit from the adopted child.

Adopted children who are not included in a will

Intestate law often applies to adopted children who are not specifically named in the will of the adopted parent. Usually, this occurs when they are adopted after the will was made and it was never amended. The laws in approximately 42 States address this situation.5Generally, adopted individuals are included in class gifts and other terms of relationship in accordance with the rules for intestate succession.6 For example, if a will stipulates that all children of the deceased parent are entitled to an equal share, the adopted person is included whether or not he or she is specifically named. Also, when a parent fails to provide for any of his or her children, whether by accident or if the person was adopted after the will was made, that person shall have a share of the parents estate as if the parent had died intestate. This last rule applies unless there is evidence that the omission was intentional or that the parent provided for the adopted person outside the will.

Alabama, Arizona, California, Colorado, Maine, Michigan, Montana, South Dakota, Utah, and Vermont. 5 The States that provide for intestate inheritance for adopted children who are omitted from a will include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin 6 The term class refers to all those persons in the same category or level of rights, such as heirs of a deceased person who are related by the same degree.

Adoption laws in India

Adoption is regulated by the Ministry of Women and Child Development, Government of India. The Central Adoption Resource Authority (CARA)7 an autonomous body under the Ministry formulates policy and regulates practice. Childcare Agencies recognized by the State Government are further licensed by CARA to place children in adoption. CARA monitors their performance through the state government machinery.

1. Methods for adoption

Parents looking to adopt can choose one of two methods an agency or through independent contact with the biological parents. Both public agencies and private agencies exist for the purpose of facilitating adoptions. Laws governing adoption: Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or married couple are not permitted to adopt more than one child of the same sex. Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age. There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. However, this act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

2. Who may adopt

The following person(s) can adopt: i. ii. iii. An individual irrespective of his or her marital status; parents who are already biological parents; a childless couple.

(www.cara.nic.in )

The following conditions have been stipulated: a. An individual above 25 years of age, irrespective of his/her marital status. b. Parents, irrespective of the number or sex, of the living biological children. c. A childless couple. d. A married couple must be married for more than 2 years and the marriage must be stable. e. A married couple whose composite age does not exceed 90 years and where the individual ages of either of the prospective parents is not less than 25 years and more than 50 years may adopt a child of less than 3 years of age. f. A married couple whose composite age does not exceed 105 years and where the individual ages of either of the prospective parents is not less than 25 years and more than 55 years may adopt a child above the age of 3 years; g. The PAPs8 should have adequate financial resources to provide a good h. upbringing to the child. i. The PAPs should have good health and should not suffer from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child. j. Couples in live-in relationship are not eligible. k. Except in the case of siblings, a second child may be adopted only when the legal adoption of the first child has been finalized. l. A single male cannot adopt a girl child.

3. Procedure for adoption

The PAP shall adopt only through a Government recognised adoption agency known as Specialised Adoption Agency (SAA). The identified agency should preferably be the one that is nearest to her/his place of residence. The PAP can also register online at www.adoptionindia.nic.in If adopting from an agency other than the one originally registered with (nearest to her/his home), but within the same state, the PAP shall approach the ACA/ SARA with the registration slip. The ACA/ SARA shall contact the SAA from which the PAP wishes to adopt. In case the PAP desires to adopt from any State other than the State where they are currently residing, they may approach the ACA/ SARA of the State where they are residing, with their registration slip. The ACA/ SARA shall convey the registration of such PAP(s) immediately to the ACA / SARA of the State from which the PAP(s) want to adopt.

An Indian Prospective Adoptive Parent (PAP) who is a habitual resident of India i.e. an individual who has lived in a place of settled dwelling in India, which constitutes her/his ordinary residence, for at least one year.

Registering with an Adoption Agency The PAP shall apply for registration as per the form prescribed in Schedule-IV of the CARA Guidelines. The application for registration shall be supported by the documents listed in Schedule V of the CARA Guidelines (indicated below). The prospective parent shall pay the requisite registration fee. The following documents must be submitted in original along with two self attested copies: Proof of identity (voter card or pan card or passport or driving license) Proof of address indicating residence in India exceeding 365 days Marriage Certificate Family Photograph (Three recent postcard sized photographs of the adoptive family). Health certificate by a registered medical practitioner certifying that the PAPs are not suffering from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child. Two letters of recommendation from persons who know the family well. Such recommendations should not be from immediate relatives of either spouse. If the PAPs are self-employed, IT statement for the last three years and if they are employed, Income Certificate from the employer also indicating the date of superannuation. Financial statement including copies of bank statement for the last six months, details of movable and immovable property owned by the family and details of loans taken by the PAPs. Written consent of the biological or adopted child or children and if they are above 7 years of age. Adoption decree, if the couple have adopted child or children earlier. Divorce or legal separation decree in case of single PAP(if applicable). Letter from close relative of single PAP stating that in the event of any unforeseen circumstance, the relative would take care of the child. Copy of the passport of PAPs and in case the parents do not have passport ,undertaking to that effect. Referral and Acceptance The SAA shall identify a child for referral and seek the approval of the Adoption Committee (an internal committee set up by the SAA consisting its Secretary/Managing Trustee, a senior professional social worker, a visiting Medical Officer and one other functionary of the Agency) for assignment of the child.

The SAA shall make best efforts to assign a child as per the description given by the PAP(s), if any. The SAA shall then advise the PAP to see the child physically so that they can indicate their acceptance. Should they so desire the PAP may get the child medically examined by their own medical practitioner. The Child Study Report and Medical Examination Report of the matched child shall be forwarded by the SAA to the PAP(s) for acceptance and this may be called a referral. If the prospective parents decide to adopt the referred child, the PAP shall indicate their formal acceptance by signing on the Child Study Report and Medical Examination Report. This will be done within a period of ten days. In case the referred child is not acceptable, a maximum of two other children shall be proposed to them at a given time. In case a matching does not take place, the PAPs shall be eligible for reconsideration only after a lapse of three months from the date on which the last child was shown to them.9

4. Intestate inheritance rights for adopted persons

Section 12: Effects of adoption10 An adopted child shall be deemed to be the child of or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served replaced by those created by the adoption in the adoptive family: Provided that(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth.
9

In the case of placement of children of the age of seven years and above, written consent of the child for the proposed placement shall be obtained. If the child cannot read and write, verbal consent can be taken in the presence of the Adoption Committee who shall record the same and take the signature or thumb impression of the child on the recorded statement. The date on which the consent of the child is obtained shall be clearly indicated in the Statement.
10

Hindu adoptions and maintenance Act, 1956

(b) any property which vested in the adopted child be before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Comment: On adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family.11 Right in property after adoption An adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when the property has not been vested in him and is still a fluctuating coparcener property. 12 Vested property Vested property in the context of clause (b) of the proviso to section 12 means property in which indefeasible right is created, i.e., on no contingency it can be defeated in respect of particular property.13

11 12

Basavarajappa v. Gurubasamma , (2005) 12 SCC 290. Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189 13 Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189.