This article is written by Vishakha Gupta, a student of NUJS, Kolkata.

“Perhaps there is no greater miracle than finding a loving home for a child who needs one.” – President Bill Clinton

Someone very famously said, “your greatest contribution to the kingdom of God may not be something you do but someone you raise.”  By raising a child, parents leave behind a part of them in the world. The couples who are unable to naturally conceive, or those who shy away from bearing a child for whatever reason, or those intending to be single parents often turn to adoption as their recourse. Apart from the fulfillment of natural desires, adoption today is trending as a mechanism to help people. Adopting children who are unwanted by their natural family or have been deprived of their family by some extraneous circumstance subserves a larger purpose and what better than to enrich another life in the pursuit of enriching your own. Given the right environment a child can grow up to be someone to change the world. Steve Jobs was adopted by an Armenian family, after he was given up by his biological parents. Nelson Mandela was adopted by Chief Jongintaba Dalindyebo, the acting regent of the Thembu people after death of his parents. Michael Oher, inspiring the movie Blind Side, went on from being an abandoned African- American child to a professional football player under the care of his adoptive family.

Who can be adopted?

The 2011 guidelines allow for adoption of an orphan, abandoned or surrendered child, if declared free for adoption by the Child Welfare Committee. Such adoption must be made following the procedure laid down in the guidelines. While any adoption, the primary concern of the agency would be the best interests of the child. It is for this reason that an in-country adoption is given preference over inter-country adoption. In pursuance of this, in- country adoption is preferred over inter-country adoption. The adoption process should be so as to not allow any profit or gain, whether financial or otherwise.

Who can adopt?

Adoption in India is regulated by the National Adoption Agency, which released Guidelines Governing the Adoption of Children in 2006 and revised Guidelines in 2011.The Guidelines permit parents already having children, couples who do not have children and individuals notwithstanding his or her marital status to adopt. Additional conditions have been imposed by Section 6 of the Guidelines. A married couple must have at least two years standing relationship. Live-in couples cannot adopt. The Prospective Adoptive Parents (PAPs) must have financial resources commensurate with the practical requirements of raising a child. An unmarried male cannot adopt a girl child. Other requirements are:

“ (3) To adopt a child in the age group of 0-3 years, the maximum composite age of the PAPs should be 90 years wherein the individual age of the PAPs should not be less than 25 years and more than 50 years.

(4) To adopt children above three years of age, the maximum composite age of the PAPs should be 105 years wherein the individual age of the PAPs should not be less than 25 years and more than 55 years.

(5) In case a single PAP desires to adopt, he or she should not be less than 30 years of age and shall not be above the age of 50 years. The maximum age shall be 45 years to adopt children in the age group of 0-3 years and 50 years for adopting children above 3 years.

(7) The PAPs should have good health and should not be suffering from any contagious or terminal disease or any such mental or physical condition, which may prevent them from taking care of the child.

(8) Adoption of a second child is permissible only when the legal adoption of the first child has been finalized but this is not applicable in case of siblings.”

International Adoption

Continually rising population of Earth has given rise to the trend of inter-country adoption. Not only it gives more options to the PAPs, it also confers a hope on the children from less developed nations who otherwise lead a bleak life, of achieving greatness in life. Actors Brad Pitt and Angelina Jolie have done their bit by adopting three children from Ethiopia, Cambodia and Vietnam (see here).

In India, the laws before 2006 were not in the least bit conducive to international adoption. The Guidelines allow the citizens of all countries, whether or not they are member to the Hague Convention on Inter-country Adoption, 1993 to adopt from India. For such adoptions, priority is given to Non-Resident Indians, followed by Overseas Citizen of India, Persons of Indian Origin and Foreign Nationals.

Procedure for international adoption

For foreign nationals residing abroad:

1. The PAPs should register with an Authorised Foreign Adoption Agency (AFAA) or Central Authority nearest to their place of residence. If there is no AFAA or Central Authority (CA) in the country, the PAPs can approach Indian High Commission or Embassy for processing and forwarding their case to Central Adoption Resource Authority (CARA).
2. A professional social worker will conduct a Home study of the PAPs and prepare a Home Study report, which will indicate PAPs’ preferences with respect to child’s age, gender, physical condition, medical requirements, and location within India, if any.
3. This report will be forwarded to a suitable Recognised Indian Placement Agency (RIPA), as identified by CARA.
4. RIPA will refer, assign and place the child. CARA has the right to reject the recommendation. From the date of referral, the adoption must be executed within forty-five days.
5. An Adoption Recommendation Committee, established by the respective State Government will inspect dossiers presented by State Adoption Resource Authority (SARA) and grant a Recommendation Certificate for placement of the child. The Certificate along with the dossier will be forwarded by RIPA to CARA
6. A ‘No Objection Certificate (NOC) Committee’ will be instituted by CARA which after inspecting documents forwarded by RIPA and ensuring that all procedures have been duly complied with, will issue a ‘No Objection Certificate’. Once the dossier is received by CARA, Certificate must be granted/ refused within fifteen days. A copy of this certificate is to be forwarded to RIPA and the concerned Adoption Authority (SARA/Adoption Coordination Agency/AFAA/CA/Government Department of the receiving country).
7. RIPA may give the child to PAPs for pre-adoption foster care. At this juncture, the PAPs cannot leave the city and cannot return the child, except in case of a disruption.
8. RIPA will apply to the competent court for a court order to effectuate the inter-country adoption. The Court must dispose the case within two months. [K.Pandey vs. Union of India (1984) 2 SCC 241; see the full judgment here]
9. Once a Court order is passed, CARA will issue a ‘Conformity Certificate’ in pursuance of Article 23 of the Hague Convention. RIPA will apply for a passport for the child.
10. Adoptive parents will have to come to India to take the child with them.

In case of a Foreign National residing in India, PAP(s) shall apply to CARA along with a certificate of No-Objection to the proposed adoption from the embassy or mission of the country of their nationality. CARA will refer the case to RIPA thereafter for execution of the Home Study and preparation of PAPs’ dossier. Further procedures will be same as in case of Foreign Nationals residing abroad.

The Overseas Citizens of India (for definition see here), who are citizens of a country party to the Hague Convention and has been residing in India for more than a year are qualified to adopt. The procedure is same as for a Foreign National residing in India.

Issues concerning International adoption

In recent years many debates have centered on whether international adoption should be banned. The supporters of international adoption talk of the benefit that adopters from developed nations can confer on children from developing countries. The opposition cites reports of illegal human trafficking and corruption that have surfaced over years (see here and here and here) This debate has raised doubts over the illustrious façade of international adoption. Are children really getting better lives or are they exposed to a new world of heinous crimes.

One of the major reasons international adoption is resorted to by prospective parents is that the domestic law for adoption is usually much more stringent than the international laws. Countries, generally, are also in support of international adoption. To this end, in India, the Guidelines were released to ease the process of international adoption. The counterforce is exerted by the government agencies that are in constant lookout for loopholes to prevent adoption. This is done in the idea of serving the child’s best interest, protecting them from trafficking, kidnapping and the like. But more often than not, the agencies also create unnecessary hurdles and delays for genuine PAPs to adopt. Thus, the courts must carry the torch for protecting the interests of adopted children and PAPs. Section 16, that talks of authorities for in-country adoption and Section 26, that talks of authorities for inter-country adoption, mention ‘Courts of Competent Jurisdiction who can pass order for Adoption’.

Courts need to provide a harmonious interpretation of the Guidelines so that the interest of the child is maintained as well as proper checks and balances are put in place. The role of the Courts in adoption process comes from ‘parens patriae’ jurisdiction. This gives the Courts power to exercise their discretion in any situation concerning adoption. Courts review the facts and circumstances of cases to decide whether the State should step in as guardian of the child. States adopt this responsibility to the safeguard the interests of those under a legal disability. [In re R.R. George Christopher 2009 SCCOnline Madras 1200; see the full judgment here]

The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role. Parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons. Parens patriae jurisdiction is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. [Charan Lal Sahu v. Union of India (1990) 1 SCC 61; Aruna Ramchandra Shanbaug vs Union of India (2011) 2 SCC (Cri) 352; see the judgments here and here].

The doctrine of parens patriae has been iterated by the Courts repeatedly. The Court steps into the shoes of the parents to decide the course of action that would best deliver prosperity to the child.

In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising ‘parens patriae’ jurisdiction and is expected to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, the moral and ethical values should also be noted. It need not look at the issue on a legalistic basis but human angles are also to be considered as relevant for deciding the issues. [Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; Nil Ratan Kundu vs Abhijit Kundu (2008) 9 SCC 413; see the judgments here and here]

Despite the smooth process laid down in the Guidelines, the High Courts and the lower courts have adopted a restrictive view towards inter-country adoption. In Craig Allen Coates v State [2010 (11) SCR 102; see the full judgment here], the Delhi High Court refused adoption on the ground that the couple already has three children and the fourth child might be neglected, or exploited as a helper as one of the parents is disabled. The Supreme Court found it fishy that the couple wants to adopt from India and not their home country where it would be easier for the child to adapt. In Theresa Tender Loving Care Home v State of Andhra Pradesh [AIR 2005 SC 4375; see the full judgment here], the Court did not interfere with the decision of the agencies to refuse adoption to an organization that engaged in welfare of abandoned children. The child was living in pathetic conditions in a State run orphanage. The pathetic conditions were acknowledged by the Court. The child had been happily living with the appellants for five years. Nevertheless, the Court did not allow the organization to adopt.  In Stephanie Joan Becker v State and Ors, [AIR 2013 SC 3495; see the full judgment here] the only ground on which the High Court refused adoption was that the prospective mother was aged 53 years which violates the requirement of maximum age 45 years as under the guidelines. The Delhi High Court refused to bow down even though a NOC had been granted by CARA relaxing the age requirement under the guidelines.

The Supreme Court displayed a changing attitude towards foreign adoption in 2013. The Court in Stephanie Joan stepped in and allowed the appellant to adopt. The Supreme Court asserted their right to allow adoption depending on the facts and circumstances. This is one of the few cases where courts have bypassed strict adherence with the guidelines to allow adoption. This case brought about a change in the courts’ approach. In 2014, the Delhi High, in stark contrast to the Theresa judgment, allowed a couple who knew the child from before to adopt the child. In David Hambly case [David Kenneth Hambly v Pinto Kumar 2014 SCC OnLine Del 4135; see the full judgment here], the lower courts refused adoption of a girl orphan to a Canadian couple, even though the girl was in good relations with the couple. The grounds for refusal were very flimsy. Delhi High Court overruled the lower court’s decision allowing, Sarah to be adopted by the Canadian couple. Sarah was an orphan and lived with her paternal uncle, who wasn’t able to financially support her. The employers of the uncle, was a Canadian couple operating a bakery in Delhi who got affectionate with Sarah and wanted to adopt her. The agencies and the lower court refused to permit adoption of flimsy grounds. The Delhi High Court undertook a review of the guidelines. It asked Child Welfare Committee to inspect the family. The CWC did accordingly and declared the child free for adoption. The Court comprehended the impact of displacing the child, and that the child will be in much better care with the Canadian couple. Thus, it allowed the adoption. The Court, sympathizing with the relation between Sarah and the PAPs, used Section 22 of the guidelines, which talks of pre-adoption foster care, to allow the child to live with them till the formalities are completed. It ordered CARA to finish the formalities within eight weeks, and issue the final order within four months, to ensure timely completion. This is a landmark judgment and must be regarded as a worthy precedent by the cases to follow.

International adoption is a complicated procedure, which involves a number of concerns with respect to the safety and welfare of the child. Nevertheless, by such adoption, a family gives a new life and hope to a child who otherwise would have suffered in orphanages, leading an uneventful life. A strict scrutiny by the courts is justified due to the steeply rising number of trafficking cases. However, the Courts must look out for genuine cases to give an abandoned child the gift of life.