TOPIC: INTER-COUNTRY ADOPTION

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 TABLE OF CONTENT

S.NO TOPICS PAGE NO.

1 Introduction 4-5

2 International Framework on Inter-Country 6-7

Adoption

3 National Framework on Inter-Country Adoption 8-9

4 Case Laws on Inter-country Adoption 10-14

5 Recommendations and Conclusion 15-16

6 References 17

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 INTRODUCTION

The word ‘Adopt’ comes from Latin ‘adoptare’, to choose. To take by choice into a
relationship; especially to take voluntarily (a child from other parents) as one’s own
child.1 Adoption is the act of legally placing a child with a parent or parents other than those to
whom they were born. It can be defined as the statutory process of terminating a child’s legal
rights and duties towards the natural parents and substituting similar rights and duties towards
adoptive parents by establishing a parent-child relationship between persons not so related by
the birth of the child.2

Inter-country adoption (ICA) can be defined as adoption of a child by a person of another

country. ICA may be more viable choice than domestic adoption for many families especially
those who want to adopt a healthy infant.

In India there is paucity of legislations regarding ICA. The main laws regulating ICA derives
its authority and validity from Judicial Pronouncements and CARA Guidelines. The
Government of India, in pursuance of its constitutional mandate, has evolved a National Policy
for the welfare of children.3 The thrust of this policy is summed up in the following words:
“The Nation’s children are a supremely important asset. Their nurture and solicitude are our
responsibility. Children’s programmes should find a prominent part in our national plans for
the development of human resources, so that our children grow up to become robust citizens,
physically fit, mentally alert and morally healthy, endowed with the skills and motivation
needed by society. Equal opportunities for development to all children during the period of
growth should be our aim, for this would serve our larger purpose of reducing inequality and
ensuring social justice.” The National Policy for the Welfare of Children also stresses the vital
role which the voluntary organisations have to play in the field of education, health, recreation
and social welfare services for children and declares that it shall be the endeavor of the state to
encourage and strengthen such voluntary organisations.

India is now a signatory to Hague Convention of 1993.4 India has signed the treaty in 2003.
The “Revised Guidelines for the Adoption of Indian Children-1995″ were issued by the Govt.

1
E.L. Johnson, Family Law, 121 (Sweet and Maxwell, London 1965).
2
American Heritage Dictionary of the English Language, Fifth Edition, 2011 by Houghton Mifflin Harcourt
Publishing Company, available at: http://www.thefreedictionary.com/adoption.
3
https://uppolice.gov.in/Site-Content/uploaded-content/pdf/JJ_act.pdf
4
On 6 June 2003, India deposited its instrument of ratification to the Hague Convention of 29 May 1993 on
Protection of Children and Co-operation in Respect of Intercountry Adoption. available at,
https://www.hcch.net/en/news-archive/details/?varevent=4

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of India on 21st May’1995 and it has now been decided to further revise this Guidelines keeping
in view the developments such as the ratification of the Hague Convention on Inter-country
Adoption-1993 by India on 06.06.2003 etc. since then.5

In the context of Private International Law, adoption of a child becomes relevant when it
involves interaction between nationals of different states. In such situations, the institution of
adoption becomes international, crossing the borders of the national legislations.

Adoptions being a serious procedure, numerous restrictions and guidelines have been
implemented in the country. Further a variety of issues also arise in international adoption.
There are wide differences among the laws of different countries on a number of matters, such
as who can adopt, or be adopted and the effects of adoption on, for instance, succession
rights.6 In general, prospective adoptive parents must meet the legal adoption requirements of
their country of residence and those of the country whose nationality the child holds.7

As far as Indian position is concerned regarding adoption there are stringent rules in place for
adoption by foreign couples and even more stringent rules for Indian couples looking to adopt.
For example Indian couple face the requirement of being infertile or childless and the income
condition render many couples ineligible even if they are fully capable of providing a decent
environment. In cases of inter country adoption the Supreme Court of India prohibits foreigners
from applying directly to Indian agency without applying to their home country. 8 Further,
Hindu Adoption and Maintenance Act, 1956, (for Hindus), Guardians and Wards Act, 1890,
(this works as indirect/limited form of adoption) and Juvenile Justice (Care and Protection of
Children) Act, 2000(section 41 for indirect adoption for all religions especially for Muslims,
as to them this is best way available for adoption) are some laws that court does consider in
adoption cases.

5
LawTeacher. November 2013. Inter country Adoption & Private International Law. [online]. Available from:
https://www.lawteacher.net/free-law-essays/family-law/an-analysis-of-inter-country-law-essays.php?vref=1
[Accessed 23 March 2019].
6
Rhuta Deobagkar, ‘Private International Law Adoption Law Family Essay’
<http://www.uniassignment.com/essay-samples/law/private-international-law-adoption-law-family-
essay.php#ftn1&gt; accessed 21 March 2019.
7
Id.
8
David M. Smolin, ‘The Two Faces of Intercountry Adoption: The Significance of the Indian Adoption
Scandals’ (2005) < http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1202&context=shlr&gt; accessed 21
March 2019.

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 THE LEGISLATIVE FRAMEWORK – INTERNATIONAL ASPECT

On the international front, the Convention on the Rights of the Child (CRC) deals with the
matters of inter-country adoption. It is also regulated by the Hague Convention on the
Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 (the HC)
and it has been ratified by about 90 countries.

Article 21 of the CRC puts an obligation on the adopting parents to ensure that the child who
is being adopted enjoys the same level of standards and projection to those who are existence
in the case of national adoption.9 The CRC recognizes the importance of real parents and family
in the life of a child and emphasizes on the fact that the State should assist them in safeguarding
the rights of the child in case they are having any difficulty. Only when, despite such efforts,
the child is suffering, that the concept of alternative care of the child comes into the
picture.10 Also, the way of transnational adoption should be opted only when the State is unable
to ensure that the child cannot be cared for in a proper manner in the country of origin.

The Committee on the Rights of the Child, which ensures compliance with CRC has expressed
their concern over violation of transnational adoption standards in many countries, and suggest
that the Hague Convention should be ratified by these countries.

Hague Convention

The cooperative framework of the Convention is based upon an agreed division of

responsibilities. Chapter II of the Convention defines a number of substantive requirements of
the Convention, responsibilities for which lie partly with the country of origin (article 4), partly
with the receiving State (article 5). These responsibilities are neither exhaustive nor mutually
exclusive. They are not exhaustive because other substantive requirements may be found
elsewhere in the Convention, in particular in Chapter VI and, additionally, the Convention only
sets minimum standards and does not prevent a State from setting higher standards for
intercountry adoption. The responsibilities are, moreover, not mutually exclusive in the sense
that they merely require each of the two States involved to do what it is in the best position to
do. Therefore, the State of origin is primarily responsible for ensuring that the child is

9
Convention on the Rights of the Child, Article 21(c).
10
Convention on the Rights of the Child, Article 20.

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'adoptable', that due consideration has been given to alternatives to intercountry adoption11 that
the necessary consents have been freely given after counselling, with information of the effects
of the consent12 including, where appropriate, the consent of the child.13 Likewise, the receiving
State is primarily responsible for determining that the prospective adoptive parents are eligible
and are suited to adopt, that they have been appropriately counselled and that the child will be
effectively allowed to enter and reside permanently in the State. As is explained below, article
17 offers a procedure to resolve any conflicts that may arise between the State of origin and
the receiving State as a result of diverging adoption requirements.

In cases where the State of origin is not a Contracting State it is argued that the unilateral
application of at least some basic safeguards by the receiving State is to be recommended, since
the objective of maximum protection for children is independent of reciprocity.14

Position in England

Adoption is a creature of statute, and the first is the Adoption of Children Act, 1926.15 An
English court only has jurisdiction if the applicant, or in case of married couple one of the
applicants is in any part of United Kingdom and the child is in England.16 The court applies the
English domestic law and adheres to the factors ought to be considered upon. The practice that
the English courts apply the domestic law may yield a different result at times. The child may
be considered as adopted in one country and may have natural parent at the same time. This is
therefore suggested that the court have to consider the law where the child is domiciled to avoid
bad outcome. Foreign adoption orders are recognized if the person who adopts is domiciled in
that country.17 The United Kingdom has adopted the Hague Convention on Protection of
Children and Cooperation in respect of Inter-country Adoption, 1993 and protection is
available in all convention country if the child is habitually resident in a Convention country.

11
In particular, permanent care by a suitable family, see article 4(b) and preamble, second and third paragraphs.
12
See the model form for the statement of consent to the adoption recommended by the Special Commission of
17-21 October 1994.
13
Article 4.
14
Duncan (n 142) 80-82. Requirements and controls in respect of the prospective adoptive parents can be
especially applied by the receiving State in all cases. Likewise responsibilities in relation to the child could
also be imposed in a flexible manner on the authority approving the adoption in the receiving State.
15
Now replaced by the Adoption Act, 1976 c.f. Setalvad, Atul M., Conflict of Laws, 2 nd edn., LexisNexis
Butterworths Wadhwa, Nagpur, 2009, p. 401.
16
Setalvad, Atul M., Conflict of Laws, 2 nd edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009, p. 397.
17
Setalvad, Atul M., Conflict of Laws, 2 nd edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009, p. 399.

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 NATIONAL FRAMEWORK ON INTER-COUNTRY ADOPTION

At the International level, India has ratified the Convention on the Rights of Child and the
Hague Convention on Inter-Country Adoption of Children. The principal law relating to
adoption in India under the Hindu system is contained in the Hindu Adoptions and Maintenance
Act, 1956 (HAMA).

The Juvenile Justice (Care and Protection of Children) Act, 2000 and The Amendment Act,
2006 guarantees rights to an adopted child as recognized under international obligations by all
Hague member countries. The JJ Act, 2000, however did not define ‘adoption’ and it is only
by the amendment of 2006 that the meaning thereof came to be expressed in the following
terms:

“2(aa)-‘adoption’ means the process through which the adopted child is permanently
separated from his biological parents and become the legitimate child of his adoptive parents
with all the rights, privileges and responsibilities that are attached to the relationship”.

The amendment emphasized that adoption under this legislation would allow an adopted child
to become the “legitimate child of his adoptive parents, with the rights, privileges and
responsibilities attached to the relationship. This is a significant move considering till then,
adoption by non-Hindus was guided by the Guardian and Wards Act, 1890. Minority castes
such as Christians, Muslims or Parsis did not recognize adoption hence the adoptive parents
had to remain as guardians to their adopted children as per the Guardian and Wards Act, 1890.

In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules,
2007 were enacted, which now stand repealed by a fresh set of Guidelines published by
Notification dated 24.6.2011 of the Ministry of Women and Child Development, Government
of India under Section 41(3) of the JJ Act. As a matter of fact, by virtue of the provisions of
Rule 33(2) it is the Guidelines of 2011 notified under Section 41(3) of the JJ Act which will
now govern all matters pertaining to inter-country adoptions virtually conferring on the said
Guidelines a statutory flavour and sanction.

Rule 8(6) mentions the order of priority which is to be followed in cases of inter-country
adoptions, which is as under:-

(i) Non Resident Indian (NRI)

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(ii) Overseas Citizen of India (OCI)

(iii) Persons of Indian Origin (PIO)

(iv) Foreign Nationals

Rule 31 speaks about power of the State Government to constitute a Committee to be known
as the Adoption Recommendation Committee (ARC) to scrutinize and issue a
Recommendation Certificate for placement of a child in inter-country adoption.

The JJ Act 2015 provides All Inter-country adoptions shall be done as per provisions of this
Act & Adoption Regulations framed by the Authority (Sec 56(4) of the JJ Act)

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 CASE LAWS ON 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 Mehta18 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 fulfil 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 Landmark judgement of Laxmi Kant Pandey v union of India19

FACTS

Lakshmikant Pandey, a practising Lawyer in the Supreme Court complained about

malpractices indulged in by social organizations and voluntary agencies engaged in the work
of offering Indian children in adoption to foreign parents, and sought relief restraining Indian
based private agencies from carrying out further activity of routing children for adoption
abroad. He also asked for direction by the Government of India, the Indian Council of Child
Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of
adoption of Indian children by foreign parents. The Supreme Court treated this as a writ petition
and laid down procedure for the adoption of children by the foreigners.

OBSERVATION

I. It was stated that allowing citizenship till the attainment of majority may create hurdle
in early cementing of the adopted child into the adoptive family20.

II. Birth certificate of the adopted child shall be obtained on the basis of application of the
society sponsoring adoption which will be subjected to magisterial order21.

III. The affidavit of the Union Government indicates that it never intended to fix any quota
for the purpose of allowing renewal of registration or licence. However, it is not the

18
AIR 1982 Guj. 193.
19
Lakshmikant Pandey v. Union of India AIR 1984 SC 469.
20
Id. at ¶ 9
21
Id.

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 policy of the Government of India mandating the agency to satisfy the condition of any
quota22.

IV. The Supreme Court took affirmative approach on this ground and held that Registered
societies can renew their licence if they exhibit their involvement in the process of
adoption and the authority should have evidence to satisfy that the agency is really
involved in the activity and have proper child care facilities23.

V. The Supreme Court justified the idea of setting up of Central Adoption Resource
Agency (CARA) on the ground that institution like CARA would be an organization of
primacy and would work as a useful agency in the field. Although there should be no
keen competition for offering adoptions, regulated competition may perhaps keep up
the system in a healthy condition24.

VI. Considering the general rise in cost of living, an escalation by 30% is allowed and
escalation of expenses will be reviewed once in three years25

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.

Post-Laxmi Kant Pandey v union of India

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 the Karnataka State
Council for Child Welfare v. Society of Sisters of Charity St Gerosa Convent26, 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.

22
Id. at ¶ 11.
23
Id. at ¶ 10, 12.
24
Id. at ¶ 12.
25
Id. at ¶ 13.
26
AIR 1992 Kant 263.

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In Sumanlal Chhotelal Kamdar v. Asha Trilokbhai Saha27, the court observed that the
authority permitting adoption did not take precaution to explain the effect of adoption to the
biological parent of the child.

In Anokha v. State of Rajasthan28, the apex court stated that the guideline prescribed by the
Ministry of Welfare, Government of India is not applicable in case where the biological parents
are willing to give their child to known foreign couple.

In St. Theresa’s Tender Loving Care Home v. State of Andhra Pradesh 29, Justice Pasayat
states that welfare of the child is the guiding factor in the process of adoption and if the courts
are satisfied that foreign adoptions will take care of the child to be adopted, will provide
opportunities for their development and will give them a sense of security, parenthood and
homely and family atmosphere, they should grant the permission for adoption and even ignore
the technicalities of law, if they come in the way of welfare of the child to be adopted

In the case of Mr. Craig Allen Coates v. State through Indian Council for Child Welfare
and Welfare Home for Children30 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.

Bombay High Court in a recent judgment, Varsha Sanjay Shinde & Anr. v. Society of Friends
of the Sassoon Hospital and others31, 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.

27
AIR 1995 SC 1892.
28
AIR 2004 SC 2820.
29
AIR 2005 SC 4375.
30
2010 (8) SCC 794.
31
Writ Petition no. 9227 of 2013 Decided on 18 th October, 2013.

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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.

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

Another latest judgment32 is 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”.

32
Dr. Abha Aggarwal v. CARA W.P. NO. 2701 of 2012 & Promila Ann Massey v. CARA; W.P. No. 3279 of
2012 (the two petitions were clubbed togetherand disposed as one) decided on 24 Jan 2013.

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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?

(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?

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 RECOMMENDATIONS AND CONCLUSION

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

Inter-country or transnational adoption may become the best option for orphan children to start
a fresh life in a new country. But when the country of domicile for these children does not have
any proper law to show them their destiny, violation of their rights is very much definite to take
place. The country desperately needs better laws and guideline for inter-country adoption. The
authorities need to ensure thorough checks of every adoption agency to ensure that they are
protecting the child’s rights as has been provided in the constitution and the Juvenile Justice
Care and Protection Act, 2006. Every child has a right to life, home and education. It is essential
that the authorities not only make laws to provide safer transnational adoption to the children
but also to ensure safety of the child even abroad.

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. Hence, in this regard, a uniform but stringent procedure must be
developed which can be easily followed and observed keeping in regard the human spirit. As
has been seen, Courts, though slowly and steadily, are approaching every possible dimension
of this issue and are laying down norms for eliminating any legal or emotional havoc for the
child or his biological and adoptive parents.

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Unless agencies systematically refuse to operate in the framework of systems that are in clear
violation of international norms, they may find themselves complicit in abuses. If prospective
adopters do not receive accurate and dispassionate information on inter-country adoption
needs, they will not be able to adjust their plans and expectations accordingly. Thus, each actor
in the process carries a particular responsibility, and all need to, and must, seek cooperation
with one another to maximize the impact of their efforts.

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 REFERENCES

Books Referred

 Setalvad, Atul M., Conflict of Laws, 2 nd edn., LexisNexis Butterworths Wadhwa,

Nagpur, 2009, p. 397.

 E.L. Johnson, Family Law, 121 (Sweet and Maxwell, London 1965).

 M.V. Pradhan,” Supplement to the Law Relating to Minors”, 118, N.M. Tripathi Ltd
Law publisher, Bombay 1954

Articles Referred.

 Mahendra Tiwari, “Human Rights and The Rights of Child In India”, XXXVI, Journal
of Legal Studies 215 (2006)

 Elizabeth Bartholet, ed, Lori Askeland, “International Adoption, chapter in "Children

and youth in Adoption, Orphanages and foster care”, Greenwood Publishing Group
Inc., (2005) ISBN 0-313-33183-9

Statutes Referred

 The Hindu Adoption and Maintenance Act, 1956 [Act No.78 of 1956] [21st December,
1956]

 The Guardianship and Wards Act, 1890 Act No. 8 of Year 1890, dated 21st. March,
1890

 The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000)

 The Juvenile Justice (Care And Protection of Children) Act, 2015 No. 2 Of 2016

Conventions Referred

 Convention on the Rights of the Child, 20 November 1989,

 Hague Convention on the Protection of Children and Co-operation in Respect of

Intercountry Adoption, 29 May 1993

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