TABLE OF CONTENTS

1. INTRODUCTION................................................................................1

Origins of Inter–Country Adoptions...................................................1

2. INTERNATIONAL AND REGIONAL LEGISLATIVE

FRAMEWORK........................................................................................4

Adoptions from non-Hague countries.................................................6

3. CONCEPT OF INTER-COUNTRY ADOPTION IN INDIA..........6

4. Central Adoption Resource Authority (CARA)..............................10

Who are adoptable for inter-country adoption?..............................10

5. CONCLUSION (PROBLEMS AND SUGGESTIONS).................11

Problems subsisting in inter-country adoptions :-...........................11

(a) Child trafficking in the guise of transnational adoption............11

(c) Post adoption domestic succession............................................11

(d) Post adoption identity crisis......................................................12

(e) Guidelines lack force of law......................................................12

RECOMMENDATIONS....................................................................13

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1. INTRODUCTION

Origins of Inter–Country Adoptions

“Every child has a right to love and be loved and to grow up in an atmosphere of love
and affection and of moral and material security and this is possible only if the child is
brought up in a family. The most congenial environment would, of course, be that of
the family of his biological parents. But if for any reason it is not possible for the
biological parents or other near relative to look after the child or the child is
abandoned and it is either not possible to trace the parents or the parents are not
willing to take care of the child, the next best alternative would be to find adoptive
parents for the child so that the child can grow up under the loving care and attention
of the adoptive parents.”1

The practice of inter-country adoption came about largely as a humane response to the
plight of war orphans and the abandoned children of servicemen in World War II, the
Korean War and the Vietnam War.

Today, the main receiving countries are the United States, Canada and the developed
countries of Western Europe. Factors such as the decline in fertility associated with
stalling marriage, the limited success rate and high cost of infertility treatment and a
lack of domestic adoption opportunities have made inter-country adoption an
alternative to childless couples in the receiving countries.

However, in states of origin or sending countries, extreme poverty, lack of

contraception and society’s attitudes to birth of illegitimate children are three major
factors leading to the abandonment of children to institutions.2 The concept of “male”
child also leads to the abandonment of the girl child which is an unfortunate reality in
our own country.

Since the 1960s, there has been an increase in the number of intercountry adoptions. 
Concurrent with this trend, there have been growing international efforts to ensure
that adoptions are carried out in a transparent, non-exploitative, legal manner to the

1
AIR 1984 SC 469
2
D. Howe, P. Sawbridge, and D. Hinings, “Half a Million Women”, New York: Penguin, 1992.

2
benefit of the children and families concerned. In some cases, however, adoptions
have not been carried out in ways that served the best interest of the children - when
the requirements and procedures in place were insufficient to prevent unethical
practices, such the sale and abduction of children, coercion or manipulation of birth
parents, falsification of documents and bribery. 

The Convention on the Rights of the Child, which guides UNICEF’s work, clearly
states that every child has the right to grow up in a family environment, to know and
be cared for by her or his own family, whenever possible.  Recognising this, and the
value and importance of families in children’s lives, families needing assistance to
care for their children have a right to receive it. When, despite this assistance, a
child’s family is unavailable, unable or unwilling to care for her/him, then appropriate
and stable family-based solutions should be sought to enable the child to grow up in a
loving, caring and supportive environment. 

Intercountry adoption is among the range of stable care options.  For individual
children who cannot be cared for in a family setting in their country of origin,
intercountry adoption may be the best permanent solution.

UNICEF supports intercountry adoption, when pursued in conformity with the

standards and principles of the 1993 Hague Convention on Protection of Children and
Co-operation in Respect of intercountry Adoptions – currently ratified by 95
countries. This Convention is an important development for children, birth families
and prospective foreign adopters. It sets out obligations for the authorities of countries
from which children leave for adoption, and those that are receiving these children.
The Convention is designed to ensure ethical and transparent processes. This
international legislation gives paramount consideration to the best interests of the
child and provides the framework for the practical application of the principles
regarding inter-country adoption contained in the Convention on the Rights of the
Child.  These include ensuring that adoptions are authorised only by competent
authorities, guided by informed consent of all concerned, that intercountry adoption
enjoys the same safeguards and standards which apply in national adoptions, and that
intercountry adoption does not result in improper financial gain for those involved in
it.  These provisions are meant first and foremost to protect children, but also have the

3
positive effect of safeguarding the rights of their birth parents and providing assurance
to prospective adoptive parents that their child has not been the subject of illegal
practices.

The case of children separated from their families and communities during war or
natural disasters merits special mention.  Family tracing should be the first priority
and intercountry adoption should only be envisaged for a child once these tracing
efforts have proved fruitless, and stable in-country solutions are not available. This
position is shared by UNICEF, UNHCR, the UN Committee on the Rights of the
Child, the Hague Conference on Private International Law, the International
Committee of the Red Cross, and international NGOs such as the Save the Children
Alliance and International Social Service.

UNICEF offices around the world support the strengthening of child protection
systems. We work with governments, UN partners and civil society to protect
vulnerable families, to ensure that robust legal and policy frameworks are in place and
to build capacity of the social welfare, justice and law enforcement sectors.

2. INTERNATIONAL AND REGIONAL LEGISLATIVE

FRAMEWORK

At global level, it is of course the Convention on the Rights of the Child (the “CRC”)
that now constitutes the basic standard-setting text on adoption. Inter-country
adoption is specifically regulated by the ‘1993 Hague Convention on the Protection of
Children and Cooperation in Respect of Inter-country Adoption’ (the “HC”), which
has now been ratified by about 90 States.

The approach of international legislators to adoption changed at the end of the

20th century as a result of serious concerns on adoption-related abuses that were being
increasingly expressed at that time.

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CRC Article 21 includes the obligation to “ensure that the child concerned in inter-
country adoption enjoys safeguards and standards equivalent to those existing in the
case of national adoption.”3

The CRC places major emphasis on the importance and role of the parents and family
as the child’s primary caregivers, and requires, first and foremost, States to assist
them when they have difficulty in fulfilling their responsibilities appropriately. Only
when, despite such efforts, the child is “deprived of his or her family environment”, or
cannot be allowed to remain therein in light of his or her best interests, does the
obligation of the State to “ensure alternative care for the child” becomes
operative.4And it is only when, in that case, the State is unable to ensure that the child
is “placed in a foster or an adoptive family” or is cared for “in any suitable manner in
the child’s country of origin” that inter-country adoption “may be considered”.

The Committee on the Rights of the Child, which is the treaty body monitoring
compliance with the CRC, has expressed concerns over violations of inter-country
adoption standards in the case of many countries, and strongly recommends all States
involved in inter-country adoption that they ratify the Hague Convention as one
means of addressing the problems.

The Hague Convention sets out to do two main things, both unequivocally directed
towards protecting the child from illicit practices related to inter-country adoption,
rather than to promoting the practice as such:

1. “to establish safeguards to ensure that inter-country adoption takes place in the best
interests of the child and with respect for his or her fundamental rights as recognized
in international law”; and

2. “to establish a system of cooperation among Contracting States to ensure that those
safeguards are respected and thereby prevent the abduction, the sale of, or traffic in
children.”5

In many ways, it is therefore an implementing treaty for the CRC as regards inter-
country adoption. Thus, as a private law instrument, it puts in place guarantees,
3
Convention on the Rights of the Child, Article 21(c).
4
Convention on the Rights of the Child, Article 20.
5
Hague Convention, Preamble and Article 1.

5
procedures and mechanisms that facilitate States’ compliance with, in particular, their
obligations under the relevant CRC provisions.

The system of cooperation established by the HC revolves around a governmental

“Central Authority” in each country to oversee adoptions and to serve as focal point
on inter-country adoption issues with its counterparts in other States. The treaty
foresees that “adoption bodies”, or agencies, duly accredited by the Central Authority
in the receiving country can carry out a range of tasks related to the adoption process,
notably regarding assistance to adoptive parents before, during and after the adoption
takes place. If also specifically authorized by the Central Authority in the country of
origin, the adoption body can also provide such assistance directly in that country.

The HC notably puts in place concrete application of the “subsidiarity principle”,

setting out procedures based on the fact that a child may be considered for inter-
country adoption only if “possibilities for placement of the child within the State of
origin have been given due consideration.”6 Other particularly important elements of
the HC include: the requirement to determine the fitness of applicants to proceed with
an adoption; the implicit prohibition of non-regulated and private adoptions, since all
prospective adopters are to undertake the process through the Central Authority or an
accredited agency; prohibition of contact between prospective adoptive parents and
the child’s parents or other caregiver/s before the child has been pronounced
adoptable and valid consents have been obtained; commitment to ensuring free and
informed consent for adoption with no inducement of any kind; and the automatic
recognition of Hague-compliant adoptions by all States Parties.

The 1993 Convention asserts that authorities must ensure, taking into account the age
and degree of maturity of the child, that he or she has been counseled and informed of
the effects of the adoption and of his or her consent to the adoption, where such
consent is required; that consideration has been given to the child’s wishes and
opinions; that the child’s consent to the adoption has been given freely, in the required
legal form, and in writing; and that consent has not been induced by payment or
compensation of any kind (article 4(d)).  Information on the child’s origin, in
particular the identity of the parents as well as the medical history, should be
preserved, but access by the child to that information is permitted only insofar as it is
6
Hague Convention, Article 4.

6
allowed by the law of the State where it is held (article 30).  Personal data gathered or
transmitted under the 1993 Convention’s provisions is to be used “only for the
purposes for which they were gathered or transmitted,” without prejudice to article 30
(article 31).

Formal monitoring of the operation of the HC is entrusted to a “Special Commission”

which comprises of all Contracting States.7 It has so far met three times, in 2000,
2005 and most recently in June 2010. The recommendations it makes are advisory in
nature.

There are various other regional instruments as well that protect and promote
children’s rights, particularly in matters of adoption, these are European Convention
on the Exercise of Children’s Rights (ECECR), European Convention on the
Adoption of Children 1967 and Inter-American Convention on Conflict of Laws
Concerning the Adoption of Minors 1984.

Adoptions from non-Hague countries

Despite the ever-growing number of countries that have ratified it, the majority of
inter-country adoptions still take place outside this framework.

Non-Hague countries whose adoption procedures continue to be subject to less

stringent conditions may well be more open to allowing growing numbers of their
children to be adopted abroad: for example, ICAs from Ethiopia continued to grow
substantially throughout the past decade, from a few hundred per year at the start to
over 4,000 in 2009.

Non-Hague countries therefore tend to be relatively attractive partners for inter-

country adoption. If this turns out to result in ever-increasing pressure on those
countries to institute or further develop inter-country adoption to “compensate” for
reductions in Hague-compliant counterparts, rather than genuine instigation to ratify
the treaty, the true aims of adoption, including inter-country adoption, would once
again be severely compromised.

7
Special Commission on the Practical Operation of the Hague Convention of 29 May 1993.

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3. CONCEPT OF INTER-COUNTRY ADOPTION IN
INDIA
The question regarding the validity of inter-country adoption was first debated in the
well-known case of In Re Rasiklal Chhaganlal Mehta8 whereby the Court held that
inter-country adoptions under Sec 9(4) of the Hindu Adoptions and Maintenance Act,
1956 should be legally valid under the laws of both the countries. The adoptive
parents must fulfill the requirement of law of adoptions in their country and must have
the requisite permission to adopt from the appropriate authority thereby ensuring that
the child would not suffer in immigration and obtaining nationality in the adoptive
parents’ country.

The Supreme Court of India in a public interest litigation petition, Laxmi Kant

Pandey v. Union of India, had framed the guidelines governing inter-country
adoptions for the benefit of the Government of India. A regulatory body, i.e., Central
Adoption Resource Agency (for short ‘CARA’) was recommended and accordingly
set up by the Government of India in the year 1989.

Since then, the agency has been playing a pivotal role, laying down norms both
substantive and procedural, in the matter of inter as well as in country adoptions. The
said norms have received statutory recognition on being notified by the Central Govt.
under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules,
2007 and are today in force throughout the country, having also been adopted and
notified by several states under the Rules framed by the states in exercise of the Rule
making power under Section 68 of the JJ Act, 2000.

In the case of Mr. Craig Allen Coates v. State through Indian Council for Child
Welfare and Welfare Home for Children9 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 mala fide and that
CARA should ensure more stricter guidelines in this regard.

One of the most significant issues in inter-country adoptions is finding prospective

adoptive parents, preferably of Indian origin. The Supreme Court of India, in
8
AIR 1982 Guj. 193
9

8
the Karnataka State Council for Child Welfare v. Society of Sisters of Charity St
Gerosa Convent, had held that the rationale behind finding Indian parents or parents
of Indian origin is to ensure the well-being of the children and that they grow up in
Indian surroundings so that they can retain their culture and heritage. The best interest
of the children is the main and prime consideration.

Bombay High Court in a recent judgment, Varsha Sanjay Shinde & Anr. v. Society of
Friends of the Sassoon Hospital and others 10, held that once a child is approved by an
Oversees couple after the due procedure is followed, the same child cannot be shown
to other Indian parents and that such Indian Parents then cannot claim any right or
priority to get the child merely because they are Indian Parents and preference should
be given to them over Overseas Indians and Foreign Couples. Although the main
issues was decided the Court kept the petition pending in order to see the compliance
of directions given by the Court for giving the child to the Overseas Indian Couple
and to ensure that the Indian Parents (Petitioners) also get a child expeditiously.

Court further laid down following guidelines for in-country and inter-country
adoptions to be read and applied in consonance with Guidelines of 2011:

(i) All the concerned Agencies viz RIPA, Specialized Adoption Agencies, SARA,
ARC, AFAA to scrupulously follow the Guidelines which have been laid down in
2011

(ii) Though there is no specific number mentioned in the Guidelines as to the number
of Indian parents to whom the child should be shown, within a period of 3/4 weeks,
the child should be shown to as many Indian parents as possible and, secondly, at a
time, the child should be shown only to one parent and not multiple number of parents
as has been done in the present case.

(iii) Only if the child is not accepted by Indian parents and the Adoption Agencies on
account of their experience come to conclusion that the child is not likely to be taken
in adoption by Indian parents then, in that case, it should be shown to foreign parents.

(iv) When the child is shown to the foreign parents, it should be shown in the list of
priorities which are mentioned in the said Guidelines.
10
162(2009) DLT 605

9
(vi) ARC and SARA should work not in conflict but in coordination with CARA, it
being the Centralized Nodal Agency.

Another latest judgment11is that of Delhi High Court where the issue involved was
whether adoptions made directly by biological parents of a child without intervention
of CARA are valid in eyes of law. It was the argument of counsels of petitioners that
the intercession of CARA was mandated only in cases of those children who are
orphaned or abandoned by their biological parents. It was the stand of CARA that the
legislative mandate for the same is found in the amendment made in 2006 to the
Juvenile Justice (Care and Protection of Children) Act, 2000 by introducing Sub-
Section (2) in Section 41 of the JJ Act. It is thus contended that the rehabilitative
measures for children in need of care and protection through means of adoption
applies, not only to orphaned and abandoned children, but also to, surrendered
children. In other words, according to the stand taken by CARA, the term
“surrendered children” would include “children which are given in adoption by their
biological parents directly to the adoptive parents”.

Court said that even in absence of any guidelines court is not disempowered to direct
the State to carry out an investigation in the interest of child both in country of origin
and receiving country through a recognized agency. Court, however, left the matter to
the wisdom of a larger bench in order to answer the following questions that came up
in the petition:

(i) Whether the term “surrendered child” will include those children who are directly
taken in adoption from their biological parents without the intercession of any
specialized agency or child welfare committee.

(ii) Whether, in case of direct adoption, the 2011 Guidelines and the provisions of
Section 41(3) and (4) of the JJ Act are applicable?

(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to what extent the 2011
Guidelines would apply to direct adoptions.

Dr. Abha Aggarwal v. CARA W.P. NO. 2701 of 2012 & Promila Ann Massey v. CARA; W.P.
11

No. 3279 of 2012 (the two petitions were clubbed togetherand disposed as one) decided on
24 Jan 2013

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(iv) Can the court direct State to discharge its duty in its capacity as parens patriae to
carry out an investigation so as to safeguard the interest and/or rights of the child
conferred on him under Article 21 of the Constitution of India.

4. Central Adoption Resource Authority (CARA)

It is an Autonomous Body under the Ministry of Women and Child Development,

Government of India and is responsible for both in-country and inter-country
adoptions in India. 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 recognized or licensed by the government of the country in which the
foreigner is resident. The agency should be recognized by CARA.

The CARA guidelines depict in the beginning that it encourages in country adoption
rather than inter-country adoption and only where the child finds no suitable home in
the country, trans-national adoption would be considered.

The guidelines also provide that all Child Care Institutions (CCI) must be registered
under the provisions laid down under the Juvenile Justice (Care and Protection of
Children) Amendment Act, 2006 as per Section-34 (3). The State Government shall
recognize suitable CCI’s as specialized adoption agencies under Section 41(4) of
the Juvenile Justice Amendment Act, 2006. The specialized adoption agencies can
turn into agencies for inter-country adoption only when they have proper
infrastructure for normal adoptable children as well as children with special needs,
and have quality child care services. In addition to these, they must comply with all
the requirements of CARA.

Who are adoptable for inter-country adoption?

As per CARA guidelines and the Juvenile Justice (Care and Protection) Amendment
Act 2006, only three types of children are recognized as adoptable. These include
children who are orphans and are already under the care of some specialized adoption
agency, abandoned and those who are surrendered. In case of an abandoned child
below two years, such declaration shall be done within a period of sixty days from the
time the child is found. For an abandoned child above two years of age, such a

11
declaration shall be done within the period of four months. In case of a surrendered
child, two months reconsideration time shall be given to the biological parent or
parents after surrender before declaring the child legally free for adoption.

5. CONCLUSION (PROBLEMS AND SUGGESTIONS)

Problems subsisting in inter-country adoptions :-

(a) Child trafficking in the guise of transnational adoption

The biggest threat to the child in inter-country adoption is becoming a victim of child
trafficking racket. After the domestic procedure for adoption by the foreign adopting
parents is over, it becomes more a question of international law and international
treaties to look after the well being of the child. Moreover, the lack of awareness
regarding the legal procedures for inter-country adoption has given rise to many fake
adoption agencies. Children are sold abroad by providing false information about
them, falsifying documents, and making use of loopholes in the adoption guidelines
prescribed by the Supreme Court.

(b) Post adoption negligence

When the child is given for inter-country adoption, post adoption follow-ups become
increasingly difficult. Even though CARA guidelines outline the role of the Indian
diplomatic missions, foreign accredited agencies and professional social workers in
protecting a child from post adoption maltreatment, it has virtually not helped anyone.

(c) Post adoption domestic succession

Once the testator dies after bequeathing the property in the name of the child who had
been given in adoption, the identity of the child has to be proved. In cases where there
is a challenge to the succession by other survivors, the procedure becomes even
tougher. The country of residence will take the matter as per the laws of domicile and
if such succession becomes legally void due to any unfortunate mistake, the adopted
child would never be able to claim legal rights of the property and thereby has to
suffer great financial, physical and emotional agony. Unfortunately India has not

12
entered into any agreement or treaties to solve such succession matters. The British
law still rules the courts in such cases. Every adopted child develops a strong
inclination to know his/ her roots at some point of time. Such legal turmoil over
successions from the biological family may even leave the adoptee in great
frustration.

(d) Post adoption identity crisis

Juvenile Justice Care and Protection(Amended) Act), 2006 specifies that a child can
be adopted by any individual, irrespective of his/her marital status, by parents who
wish to adopt a child of same sex irrespective of the number of living biological sons
or daughters, or by couples who have no children of their own. It has made adoption a
simpler and universal law than the traditional laws. The law is still tricky, however, in
case of inter-country adoptions as prospective foreign parents still have to first take
the role of guardians and take the child to their country. The process has to be finished
there as neither the new law nor any existing law specifically mentions a procedure in
cases of overseas adoption. Once the child becomes ready for overseas adoption, the
international law needs to recognize Indian adoption procedure and the child is
adopted according to the laws of the country of adoptive parents’ residence. The child
becomes the ultimate sufferer unless the “guardians” turn real parents as per the law
of his new residence.

(e) Guidelines lack force of law

CARA guidelines most often lack the force of law. Hence the parties never really
remain obliged to follow the guidelines or even the Indian law in case the habitual
resident belongs to a country which is not a member or has relinquished its
membership from the convention. The guidelines fail to ensure the health, safety and
adjustment of the child after he/she has left India. It should be noted that as the
numbers of adoptions increase, the number of regulations followed are lesser. The
guidelines should have put a maximum number of adoption procedures a month, by
each adoption agency so that social workers, the authorities, and voluntary
coordination committees would not be overburdened. Lack of regular checks at the
adoption agencies and the manner in which they operate can also lead to many
problems.

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Since the CARA guidelines mention nothing about any penal actions against
unrecognized adoption agencies, child trafficking in the name of inter-country
adoption has gotten an easy way out.

RECOMMENDATIONS

Inter-country adoption has to be dealt with great care as it often opens up floodgates
of child trafficking, child exploitation and sexual harassment of children. The
suggestions are:

 CARA guidelines should have two chapters separately dealing with in country
and inter-country adoptions.
 Penal offences must be included in case of any sort of failure by the agencies
to comply with the rules and regulations.
 Licensing procedure for the adoption agencies should be made stricter.
 Awareness programmes should be arranged for the poor, needy women and
parents in case they want to give their child up for adoption, to go through the
correct legal procedures rather than becoming the victims of touts.

Specific recommendations in relation to inter-country adoption:

 prevent any risk of children becoming stateless in the inter-country adoption

process, inter alia by ensuring that they will receive the nationality of their
adoptive parents;
 adopt a particularly vigilant approach during and following emergency
situations to prevent potential abuses and violations of international
obligations.
 Non-Hague compliant countries should be encouraged to ratify the treaty.
 Professional counseling must be done by a team consisting of recognized child
psychologists, professional social workers and legal practitioners who are
familiar with the international law of the receiving country.
 The immigration procedure for the adopted child must be done carefully in
order to prevent child trafficking.

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 Before the adoption case is opened it should be mandatory to check the
bilateral relationship of the receiving country with India.

15