INTER COUNTRY ADOPTION
Explain the issues concerning inter country adoption.
Adoption 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. Adoption establishes a parent-child relationship between persons not so related by the birth of the child.
In India, adoption law for Hindus is codified in Hindu Adoptions and Maintenance Act in 1956 & personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in ‘guardianship’ under the provisions of the Guardian and Wards Act, 1890.
This institution of adoption has become international. Inter-country adoption can be defined as adoption of a child by a person of another country. Inter-Country adoption may be more viable choice than domestic adoption for many families especially those who want to adopt a healthy infant.
Though Inter-Country adoption has become quite regular through out the world, still it is most unfortunate that often Inter-country adoption leads to misuse or ill use of children. Sometimes, it becomes a mask for trafficking in children. These types of adoption involve Trans-racial, Trans-cultural and Trans -national aspects and therefore care has to be taken that the process of solving the problems of such children may not land them in more difficulties arising on the wake of maladjustment in the new atmosphere.
At present, non-Hindus and foreigners can only be guardians of children under the Guardian and Wards Act 1890. In actual practice, foreign nationals and person of Indian origin domiciled overseas wishing to adopt children from India first obtain guardianship orders from the District Court or the High Court, as the case may be, within whose territorial jurisdiction the child is residing. This is with a view to adopt formally under the legal system of the country of their habitual residence.
Over the last 10 years, the numbers of children who are adopted by families who live outside of the child’s birth country has more than tripled. Our increasingly globalize world is blurring the edges of racial, ethnic or national identity. Nowhere is this phenomenon more actualized than in the act of building a family through inter-country adoption.
Subject to the onward march in the progressive society, the ambiguities within the domestic law, the issue of bar on adoptions and on the applications of domestic law with respect to international law, a need for a few inclusions in domestic law for universal uniformity of adoption laws substantially emerged. Eventually, formal attempts to reform were constantly contested and undermined.
Nevertheless, it must be recognized that some children adopted from foreign countries arrive in their new families with special needs. In some cases the child’s special needs are known or diagnosed prior to adoption, in some cases not. Some inter-country adopted children may be immediately diagnosed with treatable medical conditions, while some children may later develop conditions which entail a longer term commitment to treatments or therapies. However, it is important that prospective adoptive parents recognize that there are risks associated with inter-country adoption and be prepared to deal with them.
Inter-country Adoption is questionable than what used to be the case. As a result of this, there have been many moves to wipe off inter-country adoption that often seem to have a polarizing effect between agencies and adoptive families. In addition, legislators, NGOs, and other interest groups have been prone to jump on the bandwagon of increased regulation in attempts to repair the causes that have led to the unfortunate minority of adoption cases mired by poor practices and controversy.
It may be noted that there is no concrete legislation present in India, which deals with Inter-Country adoption. In fact before the Laxmikant Pandey’s case, it did not have any guidelines regarding it.
The Supreme Court of India, while supporting ICA, in the case of Laxmikant Pandey v. Union of India laid down certain guiding principles which were to be followed in the cases of ICA. It was held necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide the child a life of moral and material security, or the child may be subjected to moral and sexual abuse or forced labour or experimentation for medical or other research, and may be placed in worse situation than that in his own country.
The apex court further went on to lay down certain prerequisites for foreign adoption. In the first place, every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognized or licensed by the government of the country in which the foreigner is a resident.
No application by a foreigner for taking a child in adoption should be entertained directly by any social welfare agency in India working in the area of ICA or by any institution or centre or home to which children are committed by the juvenile court. The Supreme Court also insisted upon the age within which a child should be adopted in case of ICA, and held that if a child is to be given in ICA, it would be desirable that it is given in such adoption before it completes the age of 3 years. Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a foreign parent before he or she attains the age of 3, he or she has more chances of assimilating to the new environment and culture.
Another important rule framed by the Court during the course of judgement was: “Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedures which must be followed in such a case, resort had to be taken to the provisions of the Guardian and Wards Act, 1890 for the purpose of felicitating such adoption.”
Every recognised social or child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter-country adoption through it must be entered and in regard to each such child, the recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child, if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to the foreigner wishing to adopt it.
The child study report should contain as far as possible information in regard to the following matters:-
(1) Identifying information, supported where possible by documents.
(2) Information about original parents, including their health and details of the mother’s pregnancy and birth.
(3) Physical, intellectual and emotional development.
(4) Health report prepared by a registered medical practitioner preferably by a paediatrician.
(5) Recent photograph.
(6) Present environment-category of care (Own home, foster home, institution etc.) relationships routines and habits.
(7) Social worker’s assessment and reasons for suggesting inter-country adoption.