Inter-country Adoption Vis-a-vis Intra-family Adoptions

INTER-COUNTRY ADOPTION

An inter-country adoption is one wherein any individual or couple wishes to adopt a child who is a citizen of another country. The concept of inter-country adoption gained prominence during the period of World War II, the Korean War, and the Vietnam War, when a significant number of children lost their natural guardians and became homeless. The thought of adoption came as a humane response to the plight of such abandoned and orphaned children. The huge diaspora populations in the globalized economy lent fresh impetus to such adoptions.

However, the rise in child trafficking, child abduction, and abuse of children in the jurisdiction where they were placed led to the need for regulation of inter-country adoptions. The Convention on Child Rights [CRC]^[1] was adopted by the United Nations General Assembly on 20th November 1989, recognizing the rights of children including the protection of the best interest of children in inter-country adoptions, which came into force on 2nd September 1990. Soon after that in 1993, the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption [Hague Convention on Adoption]^[2] was concluded and came into force in 1995. The Hague Convention on Adoption aimed at acknowledging a child’s full and harmonious development and providing a suitable, safe, and loving atmosphere for them to grow, keeping the child’s best interests as a paramount consideration. As of date, 106 countries^[3] have ratified and are signatories to the Hague Convention on Adoption including the United States of America, the United Kingdom, Australia, India, Russian Federation, Germany, and Canada.

The Hague Convention on Adoption sets out general principles to be followed. It confers the power on the central authority of the signatory states to regulate and facilitate inter-country adoptions in a fair, systematic, and expedited manner.  Further, Special Commission meetings are held to monitor the practical operation of the Hague Convention on Adoption. The challenges in adapting standard adoption procedures concerning intra-family adoptions have been specifically highlighted in Special Commission meetings held in 2010^[4], 2015^[5] and 2022^[6] where the unintended delays in the procedure have been discussed however, they have noted that for each child; the situation has to be accessed individually and it should not be automatically assumed that the case of in-family placement is in the child’s best interests.

 ADOPTION LAWS IN INDIA

Adoption has been a recognized practice in India since ancient times and is deeply rooted in the country’s cultural and religious traditions. In Hindu shastra, the concept of adoption was earlier known as “Dattaka” established in order to preserve lineage and provide for children in need. Several other ancient scripts such as Dharma shastras, etc. denote adoption as a means to ensure family continuity, especially when adoptive parents are unable to conceive. 

After the period of social reforms, adoption by Hindus was governed by the Hindu Adoption and Maintenance Act, 1956 [HAMA] and for other religions, there was no specific law governing the adoption of children, however, the intending couple could become their legal guardian through Guardians and Wards Act, 1890. There were no specific laws or rules dealing with inter-country adoptions except some procedural guidelines set out by the judiciary [especially the High Court of Bombay, Delhi, and Gujarat] with the help of the Indian Council for Social Welfare and the Indian Council for Child Welfare. The legislature made an effort by introducing the Adoption of Children Bill, 1972 and 1980 however the same could not be enacted due to strong opposition by Muslim and Christian communities.

In In re: Rasikalal Chhaganlal Mehta^[7], the Division Bench of the High Court of Gujarat while dealing with a German couple wanting to adopt a female child from India, explained the complexity of inter-country adoption involving the legal requirements of two different countries and held that there is a need for regulating the inter-country adoption through legislation but in the meantime also laid down the points to be considered by courts while screening the adoption proposal. In 1984, the Supreme Court of India in Laxmi Kant Pandey v. Union of India^[8] dealt with the concern regarding increasing cases of trafficking and child abuse by prospective foreign parents and formulated certain guidelines to be followed in case of inter-country adoptions.

The judgment passed by the Apex Court paved the way for the creation of the Central Adoption Resource Authority [CARA], a statutory body under the Ministry of Women and Child Development, Government of India in 1990. Soon after that, the Juvenile Justice Act, 2000 came into force regulating the adoption of abandoned, orphaned, and surrendered children although the position of adoption under this act was clarified only after amendment in 2015^[9] which provided for a legislative framework in case of inter-country adoptions notwithstanding the adoptions taking place under HAMA.

Meanwhile in response to international advancements, in 2003, India became a signatory to the Hague Convention on Adoption which resulted in significant change in the adoption laws. CARA enacted Adoption Regulations, 2017^[10] for regulating in-country and inter-country adoptions by laying down specific procedures in compliance with Articles 5 and 17 of the Hague Convention. However, the issue concerning relative inter-country adoption where the Prospective Adoptive Parents [PAPs] are known to the biological parents who want to give away their children in adoption, left unaddressed, and the same procedure was applicable for intra-family adoptions as well.

CHALLENGES IN INTRA-FAMILY ADOPTIONS

Several cases were filed before the courts regarding relative inter-country adoption as CARA refrained from issuing No-Objection Certificates [NOC] where the adoption was undertaken under HAMA. CARA submitted before the courts that such adoptions under personal law were not recognized by foreign countries and therefore, without compliance of Articles 5 and 17 of the Hague Convention on Adoption they cannot issue NOC.

In the batch matters listed before the High Court of Delhi, Justice Pratibha M. Singh noted the unwarranted delays in issuing NOC by CARA and also observed that the procedure for adoption under the Juvenile Justice Act, 2015 does not have application on adoptions under HAMA which created a vacuum for such adoptions and disabled the PAPs in case of relative inter-country adoptions vis-à-vis HAMA.

In this light, CARA enacted the Adoption Regulations 2022^[11] wherein a new Chapter VIII was introduced dealing with adoptions under HAMA and provided an additional benefit to PAPs who have obtained an adoption deed as per HAMA before the said regulations came into the picture. This brought a sense of relief nonetheless the process remains cumbersome in many ways. The Hague Convention on Adoption aimed at an ethical and mutually accepted procedure to be set up by central authorities of states to regulate inter-country adoption however, the central authorities fail to recognize the personal laws or expedite the process in case of intra-family adoptions.

Recently in an ongoing matter of Temple Healing v. Union of India^[12], the Supreme Court instructed CARA to submit data on adoptions carried out under HAMA and ordered the establishment of State Adoption Agencies in every district. Further, the states of India have to inform the timelines in which requirements of the inter-country adoptions are being processed.

The Indian judiciary has implemented measures to address delays in inter-country adoption processes. But the issues that are still faced by PAPs in case of intra-family adoptions, where they reside outside India are:

Identical procedure: There is no relaxation to the PAPs in case of intra-family adoptions and the procedure still requires a home study report by the Authorized Foreign Adoption Agency [AFAA] and a background check of the child and biological parents which becomes irrelevant when the parties are relatives of each other.

Lengthy process: Even after adopting the child of their relative through regional ceremonies or executing an adoption deed as per HAMA, the PAPs have to wait for all the international compliances which may take 2-3 years.

Care of the child: As the child has already been given away in adoption, one of the PAPs has to stay back in India to provide necessary care for the child depriving them of their right to parenthood.

Financial hardships: Despite the principles outlined in the Hague Convention on Adoption, the AFAAs are imposing excessively high fees for preparing the home study reports and handling the documents with CARA. In some cases, even after paying the fees, CARA takes 1-2 years to process such documents and provide NOC to the PAPs.

Lack of assistance: CARA has failed to provide any assistance or guidance to PAPs to explain the procedure or steps forward and for that matter, the PAPs are left with no other option but to seek legal advice which is also an additional financial burden.

CONCLUSION

Inter-country adoption is a complex process that requires the alignment of laws across multiple jurisdictions. In the case of intra-family adoptions, the process becomes more cumbersome in the absence of any relaxation to the PAPs. Despite the inclusion of adoptions under HAMA, the CARA Adoption Regulations 2022, require the PAPs to go through all the international compliances costing them a fortune. The central authorities of all states in order to follow the Hague Convention on Adoption are restricting themselves from recognizing the validity of adoptions under personal laws or even easing the process for PAPs.

The doctrine of comity has to be followed by all nations to ensure the best interests of the child and differentiate intra-family adoptions from inter-country adoptions of an unknown child. The courts in India have time and again observed that there is a need for checks and balances even in the case of intra-family adoptions when the child has to be taken to the habitual residence of PAPs. The issue of delays in intra-family adoptions has been raised and discussed multiple times in the Special Commission meetings on the Hague Convention on Adoption, and hopefully, a positive outcome will be achieved.

In the end, there is a moral dilemma that comes into the picture as the adoption involves a child who has a right to be placed in an environment of comfort, love, and affection and at the same time has to be protected from any abuse or illegal practices.