Inter-Country Adoption and its Judge – Centric approach in India legal system

in Adoption, Articles, Study Materials

Manjeet Kumar Sahu, 4th Year Law Student, University of Petroleum & Energy Studies, Dehradun.

Inter-Country Adoption is the most debatable issues in the current Private International Law regime. This concept has helped the needy children in providing them homely environment, which is an essential aspect for proper growth and welfare of the children. With the world-wide recognition of Inter-country adoption, the time has come to validate and legalize the concept in India too. The Indian judiciary has taken pro-active approach in highlighting the pros and cons of the inter-country adoption. With the recent judgment and development in Indian Law, it can be noticed that Indian judiciary as well the lawmakers are determined to work for the welfare and interest of the child. Various landmark judgments has created a ray of hope in the life of the needy children, who may once again sit into the laps of new parent and enjoy the same life , same culture and have the sense of family-hood .

Inter-country adoption is the most sensitive, controversial and complex aspect of adoption ((See. 153rd Law Commission Report on “Inter-Country Adoption” dated 26th Aug,1994)). It truly depicts the concept of “Home to Homeless and Child to Childless”. Time and again, it is said that children are the most important asset of the nation ((Laxmikant Pandey v. Union of India AIR 1992 SC 118)). The prospective potential and strength of a nation depends on growth and development of children. Allowing Inter-country adoption in no way is going to help over-populated country like India. It is axiomatic that Indian families hardly adopt any child from foreign agencies. It merely poses threat to the life of adoptive child and makes their future bleak. Though, the Supreme Court judgment is highly appreciable in this regard that it totally rejected the transfer of child who has a natural guardian.

Presently, the whole world recognizes inter-country adoption as “a placement of the displaced, orphaned and abandoned children”. It significantly emerged as the most debatable issue in the field of Private International Law .As quoted by Alstein and Simon in his book named “Inter-country Adoption” that it began primarily as a North American philanthropic response to the devastation of Europe in World War II that resulted in thousands of orphaned children ((Prof. Lakshmi Jambholkar ,Select Essays on Private International Law, Edn 2011,Universal law Publishing Co. Pvt. Ltd., New Delhi at p.138)).The need for inter-country adoption was initiated in order to find families for the abandoned, displaced and orphaned children after the Second World War. Justice P.N Bhagwati also in Lakshmikant Pandey Case made an observation that falling fertility rate in the west and unavailability of domestic children have driven the foreign parents to adopt children from the foreign state ((Lakshmikant Pandey v. Union of India AIR 1984 SC 469)).

INTERNATIONAL RECOGNITION

International standards for inter-country adoption are found in a number of international instruments. These are the Geneva Declaration on the Rights of the Child, 1924; UN Declaration on the Rights of the Child, 1959; The Hague Convention on Private International Law, 1965; the UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, 1985; the Hague Convention on Protection of Children and Co-operation, 1965.

In 1986 the General Assembly of the United Nations ((See. UN General Assembly Resolution No.41/85  dated 3rd  Dec,1986))adopted the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally. Article 17 ((Id. at Art.17 : If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.;See also. UN General Assembly Convention on Rights of the child, Art.21(b).))states that Inter-country adoption may be considered as an alternative means of providing the child with a family.

The General Assembly adopted the Convention on the Rights of the Child, 1989 which is also treated as Magna Carta of Child Rights. The Convention is the leading international treaty onthe rights of children and has been ratified by all UN Member States exceptfor Somalia and the United States.15 In 1992, Ireland ratified theConvention.

Hague Convention on Inter-country Adoption

The Hague Convention is the first international instruments formulated in the year 1993 that endorses the practice of inter-country adoption and lays down comprehensive framework for addressing the issues surrounding inter-country adoption.

It sets out a framework to ensure that inter-country adoptions are carried out with the best interests of the child and respecting his fundamental rights ((Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993.  Art.1(a):”to establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law.”)). The Convention envisages a system of co-operation between the child’s country of origin or the “sending country”, and the country to where the child will live with its adoptive parents, or the “receiving country”. The Convention has been described as a practical expression of the fundamental principles set out in the 1989 United Nations Convention on the Rights of the Child ((Consultation Paper,” Aspects of Inter Country Adoption”, Law Reform Commission, Ireland dated March 2007 at p.13)).

REGIONAL RECOGNITION

Inter-country Adoption was defined in the European Seminar on Inter-country Adoptions, 1960 as “adoption in which the adopters and the child do not have the same nationality as well as in which the habitual residence of adopters and the child is different ((Supra, Note 3 at p.137)).

The 1967 European Convention on Adoption does not explicitly deal with inter-country adoption but it establishes the principle that an adoption should not be made unless it is in the best interests of the child ((Art. 8(1). This is enshrined in section 2 of the Adoption Act 1974 as the welfare principle)).

In Pini and Others v Romania (([2004] EHRR 275))the European Court of Human Rights dealt with the inter-countryadoptions of two Romanian girls by the applicants, who were two couplesfrom Italy. In this case, a conflict of interests existed between the wishes of the children and the applicants. The European Court of Human Rights decided that the wishes of the children and their best interests carried significant weight. The European Court of Human Rights stated that Article 8 of the Council of Europe’s 1950 Convention for the Protection of Human Rights and Fundamental Freedoms does not guarantee aright to adopt and that the aim of adoption is to provide a child with family. Moreover, it has also been held by the court that “family life” exists between an adopted children and adoptive parents ((Supra, Note 3 at p.143; See also. X. v. United Kingdom , Application No. 7626/76)).

The European Commission and Court of Human Rights have tried to evolve the concept of inter-country adoption through Article 8, 12 and 14 of the European Convention for Human Rights and Fundamental Freedom ((Id.  at p.146)).

LEGAL PROVISION IN INDIA

Indian legislation does not have any specific provision that lays down principle for inter-country adoption. Even, the Supreme Court in the absence of any law regulating inter-country adoption refers to Article 15, 34 and 39 of the Constitution and Sections 7 to 9 of Guardian and Wards Act, 1890 for issuing directions to regulate inter-country adoption ((Supra, Note 1 at p.4)).

The Government of India under Clause 23 ((Adoption of Children Bill,1980. Clause 23: (1)Except under the authority of an order under section 24, it shall not be lawful for any person to take or send out of India a child who’s a citizen of India to any place outsde India with a view to the adoption of the child by any person.(2)Any Person who takes or sends a child out of India to any place outside India in contravention of Sub-section(1) or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that purpose, shall be punishable with imprisonment for a term which may extend to six months , or with fine or with both))and 24 ((Adoption of Children Bill,1980. Clause 24: (1) if upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that purpose desires to remove the child from India,either immediately or after an interval, the court may make an order (in this section referred to as a provisional adoption order) authorizing the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody pending his adoption aforesaid Provided that no application shall be entertained unless it is accompanied by a certificate by the central government to the effect that : I: the applicant is in its opinion a fit person to adopt the child. II. The welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant. III. The applicant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this act to enable the child to be repatriated to India, should it become necessary for any reason))of the Adoption of Children Bill, 1980 tried to insert provision for inter-country Adoption for the first time  and treated it as an unlawful act but it failed due to unacceptance of some provisions of the bill by Muslims. The Central Government intended to frame a uniform civil code which was ultimately rejected. The Law Commission of India in its 153rd report recommended for Inter-Country Adoption Act in the year 1994 but was never put into consideration.

The Central Government dated 24th June, 2011 notified the Guidelines issued by the Central Adoption Resource Authority (CARA) to provide for the regulation of adoption of orphan, abandoned or surrendered.

JUDICIAL RECOGNITION AND DEVELOPMENT

The Supreme Court and the High Courts in India have acknowledged that adoption offers the remedial measures for the development of neglected, orphaned and abandoned children both in terms of physical requirement and emotional needs ((Supra, Note 3 at p.148)).

In re Rasikalal Chhaganlal Mehta ((AIR 1982 Guj 193)), the Gujarat High Court stated that inter-country adoption might have slight reflection of international racket trading of children and selling them out at profit but sanctioning inter-country adoption would be a hurry step. The Court directed to observe guidelines laid down by reputed and recognized national and international organizations. Moreover Justice Divan and Justice P.D. Desai in this case stated that it is essential to have legally valid adoption as per laws of both the countries if not then either it will be an “abortive adoption” which has no validity in either of the countries or a “limping adoption”, which has recognition in one country but having no validity in another.

Later on, The Supreme Court in a Landmark judgement of Lakshmikant Pandey’s case for the first time laid down guideline for the inter-country adoption ((Lakshmikant Pandey v. Union of India (1984) 2 SCR 785)).

ANALYSIS OF LAKSHMIKANT PANDEY v. UNION OF INDIA AIR 1992 SC 118

FACTS OF THE CASE:

Lakshmikant Pandey, a practising Lawyer in the Supreme Court complained about malpractices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents in the case of Lakshmikant Pandey v. Union of India ((AIR 1984 SC 469))and sought relief restraining Indian based private agencies from carrying out further activity of routing children for adoption abroad. He also asked for direction by the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. The Supreme Court treated this as a writ petition and laid down procedure for the adoption of children by the foreigners.

It was also stated in the case that the law of the country of prospective adoptive parent shall permit legal adoption of the child and that no such legal adoption being concluded, the child would acquire the same legal status and rights of inheritance as a natural born child and would be granted citizenship in the country of adoption and it should file along with the application for guardianship, a certificate reciting such satisfaction ((Id. at 23)).

Various Child Welfare agencies contemplating the judgment of the abovementioned case filed writ petition under Article 32 of the Constitution of India ((Laxmikant Pandey v. Union of India AIR 1992 SC 118))considering various ground that:

  1. The adopted children shall be allowed to retain their citizenship till they attain the age of majority ((Id. at ¶ 3(e).)).
  2. Birth certificates have to be issued on the basis of attested copies of Court’s certificate (decree), adoption deed or affidavits of the officials of the licensed agencies.
  3. Quota fixed for placement of children with the Indian families shall be quashed.
  4. Show cause notice need to be issued before the cancellation of registration/ license to registered agency.
  5. Setting up of CARA should be stayed.
  6. To enable the agencies to maintain high standards of care for the children, expenses by about 25% to be revised and annual escalation of 10% be made.
  7. Transfer of children from statutory homes to recognized agencies for placement be allowed.

CONTENTIONS BY THE PETITIONER

  1. The Petitioners tried to highlight malpractice on the ground of child being adopted and contended that All Government/juvenile homes, nursing homes and Hospitals (Government or private) will apply for declaration of a child as abandoned and free for placement and thereby driving the wrong practice and if the parents of the child are not known, such children should be transferred to the recognized institution/placement agency ((Id. at ¶ 3(a)(i).)).
    1. While declaring the child abandoned, Juvenile Welfare Boards or Courts should not disturb the custody of children abandoned directly with the recognized placement agencies and such orders may be passed ex- parte and confirmed after notice to the concerned parties.
  2. The quota fixed by the Central Government for the transfer of children to India families is contrary to Lakshmikant Pandey’s Case ((Lakshmikant Pandey v. Union of India AIR 1984 SC 469)). The court may direct to exclude children with handicaps, medical problems and other drawbacks from counting in case of fixing up of quota ((Supra, Note 22 at ¶ 3(b).)).
  3. The State Governments and the various Union Territories should be directed to issue birth certificates based upon attested copies of court’s certificate (decree), adoption deed or on the basis of affidavits of officials of the licensed agencies ((Id. at ¶ 3(c).)).
  4. The Petitioner sought to enable the agencies to maintain high standards of care for the children, expenses by about 25% to be revised and annual escalation of 10% be made ((Id. at ¶ 3(d).)).
  5. The adopted children shall be allowed to retain their citizenship till they attain the age of majority ((Id. at ¶ 3(e).)).
  6. Central Adoption Resource Agency(CARA) is no longer required in view of the fact that many private agencies were not available to monitor the programme and hence, setting up of CARA should be stayed ((Supra, Note 22 at ¶ 3(g).)).
  7. Show cause notice need to be issued before the cancellation of registration/ licence to registered agency. The Central Government should be directed to act by itself or through the State/Union Territory Governments to issue show cause notice before refusing to extend recognition arid grant personal hearing before taking official action and reasoned orders should be made in support of such action.

OBSERVATION OF SUPREME COURT ON VARIOUS GROUNDS:

  1. It was stated that allowing citizenship till the attainment of majority may create hurdle in early cementing of the adopted child into the adoptive family ((Id. at ¶ 9)).
  2. Birth certificate of the adopted child shall be obtained on the basis of application of the society sponsoring adoption which will be subjected to magisterial order ((Id.)).
  3. The affidavit of the Union Government indicates that it never intended to fix any quota for the purpose of allowing renewal of registration or license. However, it is not the policy of the Government of India mandating the agency to satisfy the condition of any quota ((Supra Note 22 at ¶11)).
  4. The Supreme Court took affirmative approach on this ground and held that Registered societies can renew their license if they exhibit their involvement in the process of adoption and the authority should have evidence to satisfy that the agency is really involved in the activity and have proper child care facilities ((Id. at  ¶¶ 10,12)).
  5. The Supreme Court justified the idea of setting up of Central Adoption Resource Agency (CARA) on the ground that institution like CARA would be an organization of primacy and would work as a useful agency in the field. Although there should be no keen competition for offering adoptions, regulated competition may perhaps keep up the system in a healthy condition ((Id. at ¶12)).
  6. Considering the general rise in cost of living, an escalation by 30% is allowed and escalation of expenses will be reviewed once in three years ((Id. at ¶13)).
  7. The Supreme Court expressed strong opinion in transfer of children for placement and stated that children whose parents are not known, orphans and abandoned can be transferred for the purpose of placement ((Id. at ¶14)). Various states do not have any statutory homes and even Juvenile Boards have not been properly functioning. Some recognized agencies also do not have the facility of child care. In these circumstances to order transfer of children from statutory homes to recognized agencies can indeed not be accepted as a rule ((Id.)).

“Considering the interest of the Children, Straight jacket formula may be injurious.”

POST – LAXMIKANT PANDEY CASE (1992)

In Karnataka State Council for Child Welfare v. Society of Sisters of Charity St. Gerosa Convent ((AIR 1994 SC 658)), the apex court reiterated the guidelines laid down in the Laxmikant Pandey case while dealing with an application for inter-country adoption under section 7 read with section 17 of the Guardian and Wards Act, 1890.

In Sumanlal Chhotelal Kamdar v. Asha Trilokbhai Saha ((AIR 1995 SC 1892)), the court observed that the authority permitting adoption did not take precaution to explain the effect of adoption to the biological parent of the child.

In Anokha v. State of Rajasthan AIR 2004 SC 2820, the apex court stated that the guideline prescribed by the Ministry of Welfare, Government of India is not applicable in case where the biological parents are willing to give their child to known foreign couple.

In St. Theresa’s Tender Loving Care Home v. State of Andhra Pradesh, Justice Pasayat states that welfare of the child is the guiding factor in the process of adoption and if the courts are satisfied that foreign adoptions will take care of the child to be adopted, will provide opportunities for their development and will give them a sense of security, parenthood and homely and family atmosphere, they should grant the permission for adoption and even ignore the technicalities of law, if they come in the way of welfare of the child to be adopted ((Supra, Note 3 at p.151)).

In Craig Allen Coates v.  State & Anrs. ((2010(11) SCR 102)), The Supreme Court of India took a bold step and an adoption of Indian mentally disabled child was allowed to an US woman on the ground of her professional experience. This recent development reflects that the Indian courts on the ground of welfare of children can exercise their discretionary power to any extent.

As the Supreme Court declared that the foreigners can legally adopt children through licensed welfare agencies ((Lakshmikant Pandey v. Union of India, (1984) 2 SCR 785))and thereby by justifying the inter-country adoption who is highly controversial issue. Now, the problem before Indian courts is to identify a variety of principle and procedure over migration, citizenship, the socio-economic situation of adoptive parents with the child and acceptance of the child in a different community and culture ((Supra, Note 1)).

Conclusion

In the year 1984, the Supreme Court accepted the concept of Inter-country Adoption which means any foreign parents can adopt child as per procedure laid down by the court and the guideline framed by the CARA. The Apex court delivered this judgment on the ground of welfare and proper form of rehabilitation for the abandoned children .But, in the year 1991 when matter concerned about the citizenship of adopted child. The Apex Court denied from giving citizenship and stated that “allowing citizenship till the attainment of majority may create hurdle in early cementing of the adopted child into the adoptive family”. The Apex court failed to demystify the kind of hurdle that might be created with the recognition of citizenship. The Apex Court must have to elucidate the consequences and opportunities of child exploitation with regard to inter-country adoption and detailed explanation on not providing citizenship to the adopted child.

The main problem with such concept is unavailability of specific legal provision and also non-compliance of the existing statutes ((Supra, Note 22 at ¶7)). Children are treated as saleable goods. There has to be proper legal framework for specific performance of contract. Now, The Government of India considers adoption as the best non-institutional support for rehabilitation of such children because only a family environment can provide them the best opportunity to fulfill their potential. However, it is not hidden that children are taken abroad for domestic services under the garb of adoption.