In this article, Prathiksha Ravi, a law graduate from Institute of Law, Nirma University discusses how to adopt a child whose parents are living but willing to give them up for adoption.

Introduction

Growing up in a family filled with love and nourishment is one of the few blessings we receive in this world. Not everyone is as lucky. For those searching to fill their world with the love and nourishment, an adoption is a viable option. The term ‘adoption’ refers to the process by which the adopted child is “permanently separated from the biological parents and becomes the lawful child of the adoptive parents“[1]. Adoption is an act to ensure ‘right to a family’ for an orphaned, abandoned and surrendered child. It is done keeping in mind the child’s best interests.

The process of adoption brings together individuals looking to bring a bundle of joy into their lives and a child seeking love and nourishment.

Adoption in India is governed by the following laws

• Hindu Adoption and Maintenance Act, 1956
• Guardians and Wards Act, 1890
• Juvenile Justice (Care and Protection of Children Act, 2015
• CARA Guidelines and Adoption Regulations, 2017

Adoption is not only a recourse for orphaned or abandoned children. India recognizes the adoption of children who are surrendered by parents who due to economic, physical or social reasons cannot maintain or keep the child.

Surrendering of a child

A Child may be surrendered for the following reasons

• The child is born as a consequence of a non-consensual relationship
• The child is born to an unwed mother or out of wedlock
• One of the biological parents is dead and the living parent is incapacitated or unfit to take care.
• Parents of the child are compelled to surrender the child due to physical, emotional and social factors beyond their control.

Process of surrendering a child

Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states that:

• The parents of the child, who due to certain physical, economic and social reasons cannot maintain the child can file for surrender by bringing the child before the Child Welfare Committee.
• After the necessary process of inquiry and counselling, the Child Welfare Committee shall allow for the surrender by executing the surrender deed before the committee.
• The parent who is surrendering the child shall be given two months to reconsider their decision
• The child will be then placed with either a Specialised Adoption Agency (if below 6 years) or Children’s Home (if above six years).
• If the parents have not reconsidered their decision, After two months, the relationship between the parent and child will be terminated and the child can be, if approved by the Committee can be declared as legally free for adoption.

Procedure for Adoption

Under the Hindu Adoption and Maintenance Act, 1956

This act applies only to Hindus, i.e. only a Hindu Parent can give their child for adoption to another Hindu Parent[2]. The prerequisites under the Act are as follows:

• Person adopting and giving has the capacity to do so
• Person being adopted is capable of being taken in adoption
• Adoption is done in compliance with other conditions

Certain guidelines to be followed for adopting a child under this Act are as follows:

• A Hindu parent can adopt a male child only if he/she doesn’t have a male child / grand-child of his/her own, the same goes for the female child
• In the case the person willing to adopt is married, he/she needs to get consent from his wife/husband[3]
• The child to be adopted must not have crossed the age of 15, unless custom provides for the adoption of an older child.
• If adoption by a male of a female child, then there should be at least twenty one years of difference between them. Same goes for a female adopting a male child.

Approval from the Court for Adoption is needed only in certain cases[4]:

• Where both the biological mother and father of the adopted child are dead
• Where the biological parents have renounced the world
• Where the biological parents have abandoned the child
• Where the biological parents have been declared to have an unsound mind
• Where parentage of the child is unknown

Under the Juvenile Justice (Care and Protection of Children) Act, 2015

Under this Act, a person can adopt a child who has been relinquished or surrendered by their biological parents based on certain conditions. A surrendered child is one, who has been given up by their biological parents due to physical, emotional and social factors beyond their control and is declared as such by the Child Welfare Committee.

The Child must be declared as legally free for adoption by the Child Welfare Committee.

Section 38 talks about how a Child can be declared as legally free for adoption. It states that:

• The institution under which the child was placed after the execution of the surrender deed will bring the child before the Committee of the lapse of 2 months after the deed has been executed to be declared as legally free for adoption
• The decision to declare a child as legally free for adoption must come from at least three members of the Committee.

Eligibility Criteria

• The couple looking to adopt must have at least 2 years indicating marital stability
• To adopt a child between 0-3 years, the prospective parents must have a combined age of 90 years wherein the individual prospective parent should have the minimum age of 25 years and not more than 50 years.
• To adopt a child above 3 years, the prospective parents must have a combined age of 105 years wherein the individual prospective parent must not be less than 25 years and not more than 55 years.
• In the case of a single prospective parent, the parent must be a minimum of 30 years and not older than 50 years.

Required Documentation

The Prospective Adoptive Parents (PAPs) need to submit the following original documents with two copies on which self-attestation is done for undergoing a legal adoption procedure.

1. Identity Proof – Pan Card/Passport/Voter Card/Driving
2. Address Proof – documents like Ration Card/Aadhar Card/ Electricity Bill etc.
3. Certificate of Marriage
4. Health Certificate which clears the parents from any incurable or contagious diseases
5. A Family Photograph
6. If employed, the Prospective Adoptive Parents need to furnish an Income Tax Statement for the previous three years. They have to provide an Income Certificate in case if they are employed in any organization from that particular organization along with the date of superannuation[5].
7. The Prospective Adoptive Parents must furnish two letters of recommendation from the persons who are well acquainted with the adoptive family and who are not the immediate relatives of any of the any of the Prospective Adoptive Parents[6].
8. A Financial Statement which includes bank statements of the previous 6 months, information on loans taken and details of the movable and immovable properties owned by them.
9. In case of a previous adoption, the Prospective Adoptive Parents have to furnish Adoption Decree.
10. In the case where Prospective Adoptive Parents already have children either adopted or biological and if the child is more than 7 years, they need to take Written Consent from such child.
11. Single Prospective Adoptive parents need to provide a Letter From a Close Relative stating that the relative would take care of the child in case if any unforeseen circumstances take place.
12. In case of Divorcees, the Divorce or Legal Separation Decree needs to be submitted.

Procedure for adoption under this Act

According to the CARA Guidelines and the Adoption Regulations,2017:

• The Child must be declared to be legally free for adoption by at least three members of the Child Welfare Committee
• Indian Prospective parents must register themselves with a Specialised Adoption Agency, mainly one near their place of residence. The Agency will guide them through the registration process
• Online Registration can also be done using this website: http://carings.nic.in/
• After registering as per Schedule IV and with the necessary documents and the prescribed fee, the Specialised Adoption Agency (SAA) will give them a registration slip.
• If they want to adopt a child from another Special Adoption Agency within the same state they can approach the State Adoption Resource Authority (SARA) or the Adoption Coordination Agency with the registration slip.
• If they want to adopt a child from another state they must visit that particular state’s State Adoption Resource Authority or Adoption Coordination Agency with the registration slip.
• The Prospective Adoptive Parents will be put on a waiting list
• Pre-Adoption Counselling and Preparation will be given to the Prospective Adoptive Parents by the Specialised Adoption Agency to prepare them for their adoption
• Home Study is done by the respective Specialised Adoption Agency to check for suitability and eligibility of the prospective parents in the place of their residence by which a Home Study Report is prepared which will declare the Prospective Parents as eligible.
• Prospective Parents after being cleared as eligible for adoption, they will get profiles of legally free for adoption children.
• Prospective Parents can reserve a child within 48 hours.
• Matching of the prospective parents and the child is done by adoption agency within 20 days after which Prospective parents accept the child and take him/her into pre-adoption foster care
• A petition is filed by the Specialised Adoption Agency along with the Prospective parents as co-petitioners in a designated court within 10 days of acceptance
• The Court will hear and dispose the case within 60 days after having an in-camera hearing.
• Application of the birth certificate and its subsequent issuance will be done within 8 days
• Post Adoption follow up will be done until 2 years from the date of adoption of the child.

Conclusion

Every child needs to grow up in a family environment where they feel loved and nurtured in order to become caring individuals in the future. Many parents due to various social, physical and economic reasons are unable to maintain their children. Adoption of such children is recourse given under Indian law to make sure they are not left out of the love and nurture they deserve.

Some things to be kept in mind before adopting children with living parents:

Hindu Adoption and Maintenance Act, 1956

Juvenile Justice (Care and Protection) Act, 2015 read with CARA Guidelines and Adoption Regulations, 2017

If you want to adopt under the Hindu Adoption and Maintenance Act, 1956, you can only adopt if you and the parents surrendering the child is ‘Hindu’ Certain prerequisites are necessary to be complied with in the case of adopting the child In the case of abandoned children, it is required to get a court order for adopting the child The adoption can be completed by either performing an adoption ceremony as per customs or by a court order.

If you want to adopt under the CARA Guidelines read with the Juvenile Justice (Care and Protection of Children) Act, 2015, make sure the kid is legally free for adoption and has the relevant certificates. Registration can be done with a Specialised Adoption Agency or online through http://carings.nic.in/ The Required documents as stated above must be submitted during the Registration process and keep the Registration slip on hand, it will be needed if and when you want to start the process or transfer the process to another SAA. Allow the agency to conduct the pre-adoption counselling, Home Study in order to get the certification necessary to become Prospective Adoptive Parents in order to be put on the waiting list After receiving the child in a pre-adoption foster care, along with SAA file a petition to confirm adoption with the court within 10 days Make sure you get the birth certificate and relevant documents which will be issued within 8 days. Post-adoption follow up will be done for 2 years from the date of adoption of chile

Contact Information

For any adoption related query, Contact:

Central Adoption Resource Authority

Toll free helpline – 1800-11-1311

Email: [email protected]

References

[1] Section 2(2), Juvenile Justice (Care and Protection of Children) Act, 2015

[2] Section 2, Hindu Adoption and Maintenance Act, 1956

[3] Bholooram and Others v. Ramlal and Others 1989 JLJ 387

[4] Section 9(4), Hindu Adoption and Maintenance Act, 1956

[5] Adoption Regulations, 2017 http://cara.nic.in/PDF/Regulation_english.pdf [Date of Visit: 07/02/2018 Time of Visit: 3:30 pm]

[6] Schedule VI, Adoption Regulations, 2017

http://cara.nic.in/PDF/Regulation_english.pdf [Date of Visit: 07/02/2018 Time of Visit: 3:30 pm]