In this article, Utkarsh Trivedi, of The National Law University of Odisha, Cuttack,. discusses adoption laws in India with special emphasis on single parent adoption.  

Introduction

A study by the Indian Association for Promotion of Adoption and Child Welfare has reported that the number of single women who want to adopt is growing steadily in India, and this is supplemented by the want of having a family.

Adoption in India for Buddhists, Jains, and Sikhs is maintained by the Hindu Adoptions and Maintenance Act, 1956.

Muslims, Parsis, Christians, and Jews do not recognise complete adoption, so if a person belonging to such religion has a desire to adopt a child, he/she can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

The Juvenile Justice (Care and Protection of Children Act, 2000) and The CARA Guidelines and Adoption Regulations, 2017 are supplementary acts to the action for adoption.

Who can adopt?

Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following category of people can make adoptions:

• “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has a living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).
• “Any female Hindu (including Buddhist, Jain or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

So according to the act, if you’re a Hindu (Hindu here includes Buddhist, Sikh , and Jain) of sound mind and have attained majority, you can adopt a child, but if you have a living spouse at the time of adoption, then you need the permission of the spouse.

Adoption rules for Muslims

The Islamic term for what is generally called adoption is kafala. A guardian/ward role is played out rather than a parent. This relationship has specific rules. These rules are mainly to preserve the integrity of the family line. Adoption is certainly not prohibited. What is unlawful is to attribute one’s adopted child to oneself, as if there is a biological relationship. This is because Islam seeks to safeguard biological lineage and not confuse lineage.

In a recent judgement of Shabnam Hashmi v. Union of India and Ors. AIR 2014 SC 1281, the apex court has held that the secular laws of adoption will supersede personal laws in this regard and that Muslims can adopt under the Juvenile Justice (Care and Protection of Children) Act 2000. The honorable justice, while ruling stated,“The Juvenile Justice Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954, which enables any person living in India to get married under that Act, irrespective of the religion he follows. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” was a ruling given by a bench headed by Chief Justice P. Sathasivam.

Adoption rules for Christians and Parsis

The personal laws of Christians and Parsis do not recognise adoption and so, in this case, an adoption is done from an orphanage, by obtaining permission from the judiciary i.e. by the courts under The Guardians and Wards Act as the Christians have no adoption act.

Since adoption is the legal association of a child so adopted, it comes under the personal law of the religion of the parents wanting to adopt. Christians have no adoption laws hence they have to approach the court under the Guardians and Wards Act, 1890. Christians can take a youngster under the said Act just under foster or child care. Once a child under foster care becomes major, he is free to walk away from all his connections. Besides, such a child does not have a legal right of inheritance under Christian Law.

There is no law regulating adoption among Christians in India. In the absence of a statutory or customary adoption recognized by courts, foster children are not treated in law as children.

But it is to be noted that the amendments by the Supreme Court in the Juvenile Justice Act after the Shabnam Hashmi case held that the secular laws of adoption will supersede personal laws in this regard and therefore Christians can be parents of children and not just have them under foster care.

Single parent Adopting a child

According to the Juvenile Justice Act that was amended in 2006, adoption means, “The process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached with the relationship.”

The most intriguing progress is by the Central Adoption Resource Agency (CARA) Guideline, 2015 issued by the Ministry of Women and Child Development with help from Ms. Maneka Gandhi. The guidelines govern the adoption of children that allow a single female to adopt a child of any gender. Also, the age limit for single parent adoption has been significantly lowered, from 30 to 25 as well.

Therefore, in India, the issue of not being able to adopt a child if you are a single parent is no longer a major problem.

Adoption rules for Males under the Juvenile Justice Act.

Under the Juvenile Justice Act, a single male is not lawfully prescribed to adopt a girl child. The relevant section of the act is as follows:

57. (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.

(2) In case of a couple, the consent of both the spouses for the adoption shall be required.

(3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.

(4) A single male is not eligible to adopt a girl child.

(5) Any other criteria that may be specified in the adoption regulations framed by the Authority.

This is criticized as clause 4 is not arguing in favour of gender neutrality which is the need of the hour, but keeping.  in mind safety and relevance to certain problems that on

How to adopt a child in India

The steps needed to adopt a child in India are as follows:

1. Parents wishing to adopt have to register online or can reach District Child Protection Officer (DCPO) to register the prospective parents online. The application form is also available at the website of CARA.
2. The adoption agency then creates a Home Study report, describing the various factors and compliances of the family within 30 days of the registration of prospective parents.
3. The home study report is posted on the database by the concerned agency.
4. The parents are then allowed to choose their prospective child based on their preferences and choices.
5. They are shown photographs of the child their study reports and the child’s medical examination reports, of up to 6 children.
6. The adoptive parents have the option of reserving one child within a period of 48 hours for the possible adoption while rest of the children would be released for other prospective parents.
7. The adoption agency will then fix the meeting of the prospective adoptive parents to access whether they are suitable parents for the child or not. The parents should also be allowed to have a meeting with the child.
8. This entire process of matching should not take more than 15 days.
9. While accepting the child the prospective adoptive parents should sign the Child Study Report in presence of a social worker as a witness.
10. In case the parent or the child is not compatible, the process is followed to start the matching procedure again.

Costs incurred in adopting a child in India

Under CARA rules, an adoption within India should cost no more than Rs 46,000: registration for Rs 1,000, the home study process for Rs 5,000 and Rs 40,000 for the agency’s official child-care corpus fund.

• Foreign program fees
• Adoption agency fees
• Travel expenses
• Home study costs
• Documentation and application fees
• Third party costs

These expenses are paid not all at once, but over the course of the adoption journey. Many agencies and independent organizations offer loans and grants to help families achieve their dreams of adoption. If you have questions about financial aid, consult an adoption professional.

External Agencies that help to adopt a child in India

Adoption is a big decision for which you need proper support and guidance at every step. There is a lot of time-consuming paperwork and procedures involved. The assistance of reputed adoption agencies can reduce your levels of anxiety associated with adoption.

Some agencies that are well reputed are listed below:

1. Children Of The World (India) Trust

401, Arun Chambers, 4th Floor, Tardeo Mumbai

Tel: 91-022-23520249, 91-22-23520032, 56602196

1. Delhi council of child welfare

Delhi Council For Child Welfare,

“Palna” Civil Lines,Qudsia Garden, Yamuna Marg,

Delhi – 110054,Tel: 91-11-23968907 91-11-23944655

Inter-Country Adoption

On the global front, the Convention on the Rights of the Child (CRC) manages the issues of between nation selection. It is additionally controlled by the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 (the HC) and it has been approved by around 90 nations.

Problems Arising in Case of Inter-Country Adoption

1. Child trafficking

In many cases, the child becomes the victim of human trafficking. Children are sold after being taken out of the country by providing false information about the child and forging documents.

1. Post-Adoption Negligence

In transnational adoption, post-adoption monitoring is extremely tough and hence the child may be prone to negligence by the adoptive parents.

The Youngest single parent in India

Aditya Tiwari, a 27-year-old software engineer, had applied for adopting Binny, a child with down syndrome to one of the private child adoption agencies in India. His application got rejected because he did not attain 30 years which is the legal age for adopting a child in India and that, he is not married. The matter was investigated upon, and it was found that Binny along with other children was prepared to send to Delhi for illegal foreign adoption. But now Aditya’s matter was taken into consideration and the law regarding the minimum age for adopting a child got reduced to 25 years by the parliament.

The way forward

India is on the brink of banning commercial surrogacy for everyone except couples married for more than 5 years, by enacting the Surrogacy (Regulation) Act, 2016. After this enactment, the only way, by which a single parent could raise a child will be by adoption . Adoption laws in the country are very procedural but the adoption agencies and societal pressures, be it ever so stupid, are a hindrance to single parents who want to adopt children.

If a woman wants to adopt a child, the society will throw logically deviated questions at her, and might even exclude her from the communal arena, this mindset needs to take a backseat for single parents to take over the wheel.

Conclusion

Adopting a child is a very noble cause, and I believe, the barriers of religion, caste, etc., shouldn’t overshadow a noble deed like this. A couple who wants to raise a child, but because of a biological deformity cannot do so, or a single parent who wants to adopt a baby, is denied adoption, just because he is not married is not a good enough excuse for the same, hence I believe the right to adoption should be included in the Fundamental Rights of the Constitution of the Country.

References

1. http://cara.nic.in
2. www.wcd.nic.in
3. http://indianexpress.com/article/lifestyle/feelings/daddys-little-boy/
4. http://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
5. http://cara.nic.in/PDF/JJ%20act%202015.pdf
6. http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=270&lid=708