This article is written by Shivani Agarwal from the Institute of Law, Nirma University. This is a comprehensive article that discusses the concept of inter-country adoption in detail.
Adoption is the legal placement of a child with a parent or parents who are not their biological parents. It’s the legal procedure of terminating a child’s legal rights and obligations to his or her natural parents and replacing identical rights and obligations to adoptive parents by establishing a parent-child connection between people who aren’t related by blood. The adoption of a child by a person from another nation is known as inter-country adoption. For many families, especially those who wish to adopt a healthy newborn, international adoption may be a better option than domestic adoption.
Adoption rules in India have been shaped over many years by social reform campaigners and child welfare groups. The laws and policies enacted by the Indian government demonstrate this. There is a scarcity of inter-country adoption laws in India. Judicial pronouncements and Central Adoption Resource Authority (CARA) Guidelines provide authority and legitimacy to the major legislation governing inter-country adoption. The Government of India has developed a National Policy for the Welfare of Children in accordance with its constitutional mission. The National Policy for the Welfare of Children also emphasises the importance of volunteer organisations in the fields of education, health, recreation, and social welfare services for children, and says that the state would work to foster and strengthen such organisations.
Since adoption is such a significant practice, the country has enacted a number of limitations and standards. In addition, there are a number of concerns that occur in international adoption. On a variety of issues, such as who can adopt or be adopted, and the impact of adoption on succession rights, for example, there are significant discrepancies in the laws of different nations. In general, prospective adoptive parents must fulfill the legal adoption criteria of both their home country and the country of the child’s nationality.
Journey of adoption in India
Adoption has been practised in India for thousands of years. Because Hinduism is India’s most widely practised religion, epics, and history contain chronicles of saints and royals who were and were not adopted. The Hindu epics Ramayana and Mahabharata both include references to adoption. Sons have been considered quite important in the Hindu religion. It was believed that a deceased parent’s spirit can only reach heaven if that person has a son to burn the funeral pyre, and salvation can be attained through sons who perform ancestor worship.
Children who become orphans as a result of abandonment, poverty, or conflicts provided a basis for authorities to inquire about their well-being. Initially, the next of kin on either side of the family immediately adopted such youngsters into their homes. In this context, conventional adoption, which began as a personal and family concern, evolved into a movement for child welfare reform. During the 1920s, this shift in children’s welfare paved the way for Indians to adopt children who were not related to them. The number of unrelated children adopted during this period is unknown due to a lack of knowledge concerning paperwork.
The fact that India was controlled by the British at the time may have influenced adoption policies and social reformation. In the Madras and Bombay Presidency, the first Children’s Act was passed in 1920, entrusting the state with the obligation of caring for impoverished and neglected children. The primary goal of this Act was to provide for the care and safety of children. Social regulations and practices have changed as a result of the subsequent reforms that have accompanied independent India after 1947. These modifications also had a favourable influence on family policy relating to the well-being of children.
The case of Laxmi Kant Pandey v. Union of India (1984) was the case in which the Supreme Court first talked about adoption. The Apex Court states that every child has the right to love and be loved. Only by being raised in a family can a child grow up in a loving environment and gain moral and material stability. However, if the biological parents or anyone else is unable to look after the kid, or if the kid has been abandoned by his or her family, adoption is the greatest option for the kid’s safety.
In 1986, the Central Adoption Resource Agency (CARA) was established in India to improve the inter-country adoption procedure. CARA’s major responsibility is to oversee and regulate the whole adoption process. CARA’s inter-country adoption rules have resulted in more openness. Every area was assigned a vetting committee to help the court in evaluating whether each kid was given an “adequate chance” to find a home in India. As a result, the Adoption Coordinating Agency, a group of placement agencies in each region, was formed (ACA). In recent years, there has been a large increase in domestic adoption and a drop in international adoption.
Concept of inter-country adoption
Adoption from other countries is mostly a phenomenon of the second part of the twentieth century. The numbers and patterns of international adoption have changed over time as a result of shifting political attitudes in both sending and receiving countries, as well as the international community as a whole, rather than because of objective needs for children or the desire for prospective parents for the children.
Inter-country adoption, also known as transnational adoption, is a type of adoption in which a person or couple becomes the legal parents of a child from another country. Couples who want to adopt a child from another country must meet the legal requirements of both nations, namely the country in which the potential adopters live and the country in which the child is born. Some countries have a framework in place to facilitate inter-country adoption, while others outright prohibit it. Inter-country adoption, which involves the transfer of children for the purpose of parenting from one country to another, is an extreme version of what is commonly referred to as “stranger” adoption, as opposed to “relative” adoption. Relative adoption occurs when a stepparent adopts his or her spouse’s kid, or when a member of a child’s extended biological family adopts a kid whose parents have died or have become unable or unwilling to parent.
Adoptive parents and children meet in inter-country adoption across a range of differences, including socioeconomic status, race, ethnic and cultural heritage, and nationality. Typically, the adoptive parents are relatively fortunate white people from one of the world’s wealthier countries, and they will be adopting a child born to a terribly impoverished birth mother from one of the world’s poorer, racial, and ethnic groups in one of the world’s poorer countries.
International provisions governing inter-country adoption
Inter-country adoption is covered under the Convention on the Rights of the Child (CRC) on the international level. The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption 1993, which has been ratified by around 90 countries, also regulates it. Adopting parents are required by Article 21 of the CRC to guarantee that the child who is being adopted has the same degree of standards and projection as those who are already alive in the event of national adoption. The CRC recognises the significance of genuine parents and family in a child’s life and highlights the significance of the state assisting them in upholding the child’s rights if they are experiencing problems. Only when the child is suffering, despite these attempts does the thought of alternative child care enters the picture.
Article 21 further specifies that State parties that recognise and/or approve the adoption system must guarantee that the child’s best interests are paramount and that the adoption of a child is only permitted by competent authorities. The authorities must provide their informed approval to the adoption after receiving any appropriate counselling. Recognize that ICA may be considered as an alternative means of child care if the child cannot be placed in a foster or adoptive family or cannot be cared for in any other way in the child’s home country; ensure that the child involved in inter-country adoption has the same safeguards and standards as children adopted domestically.
The Hague Convention
The Convention’s cooperative structure is built on an agreed-upon separation of tasks. These obligations are not all-inclusive, and they are not mutually exclusive. They are not exhaustive since more substantive criteria can be found elsewhere in the Convention, particularly in Chapter VI, and since the Convention only establishes minimum standards for intercountry adoption and does not preclude a State from establishing greater ones. Furthermore, the tasks are not mutually incompatible in the sense that they simply require each of the two parties to do what it is best suited to perform.
As per the Hague Convention, the system of cooperation is to be managed by the Central Authority, which deals with adoption and acts as the primary agency for inter-country adoption matters. The Hague Convention also follows the subsidiary principle, which provides that transnational adoption can only be considered when the child’s safety in the country of origin cannot be guaranteed and that first and foremost, the child’s placement in the country of origin must be prioritised. The Convention also requires the Central Authority to ensure that the child is mature and of a proper age to be adopted, that the child has been informed about the adoption and its consequences, that the child’s consent has been obtained (with proper weight given to the child’s opinion and wishes), and that the consent has not been obtained through bribery or payment of any kind. The child’s origins, medical history, and information about the child’s true parents should all be retained, but access to this information should be limited.
Both the CRC and the Hague Convention are recognized by India. The Hindu Adoption and Maintenance Act, 1956 is the basic statute that governs the subject of adoption in the Hindu system (HAMA). The Juvenile Justice (Care and Protection of Children) Act of 2000, as well as any subsequent Amending Acts (2006, 2010, and 2015), ensure an adopted child’s rights under the Hague Convention. Adoption was not defined in the 2000 Act, thus, it was introduced in the 2006 Amendment. This was a significant step because adoption by a non-Hindu was previously governed under the Guardians and Wards Act of 1890.
There are various countries that do not ratify the Hague convention. The method is less stringent in such nations that are not parties to the convention. Because of this, non-signatories attract more persons interested in inter-country adoption. For example, Ethiopian ICAs have expanded significantly in recent years, permitting about 4500 adoptions to the United States in 2009-10.
The impressions of ICA’s success held by politicians and the general public in the children’s countries of origin will influence its destiny. The Hague Convention on ICA, a multilateral convention of cooperation and regulation presently being examined for ratification by nations throughout the globe (including the United States), will assist and ensure all parties that the rights of children and birth parents are maintained in an ICA. The Convention should lay to rest some of the suspicions (e.g., that the children are being exploited as organ donors) that make the adoption process unstable and deny children who may benefit from adoption the love of a permanent family.
For orphan children who want to start a new life in a foreign country, inter-country or transnational adoption may be the best alternative. However, if the nation of origin for these children has enough legislation to show them their fate, violations of their rights are very certain to occur. Better regulations and guidelines for inter-country adoption are sorely needed in the country. The authorities must conduct rigorous inspections on every adoption agency to guarantee that they are upholding the constitutional and other legislation that safeguards the child’s rights. It is a typical occurrence in India for judges handling adoption cases, particularly in small towns and cities, to be unfamiliar with the interpretation of the intercountry adoption standards. As a result, a standard yet severe system must be devised in this respect, one that can be readily followed and enforced while keeping the human spirit in mind.
It can be concluded that courts are slowly but methodically examining every aspect of this subject and establishing rules to prevent any legal or emotional turmoil for the kid or his birth and adoptive parents. As a result, each organization/person involved in the adoption process has a specific duty, and they all need to, and must, work together to optimise the impact of their efforts.
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