INTRODUCTION

Adoption signifies a socio- legal practice of taking another child into own family. More specifically, in adoption child belonging to one family acquire ties with a new family i.e. adoptive parents, leading to the termination of relationship with biological or natural parents.

International adoption or transnational adoption or Inter-country adoption is a form of adoption in which an individual or couple becomes the lawful and perpetual parents of a child who is a domestic citizen of another nation. In general, potential adoptive parents must fulfil the essential requirements for legal adoption of their country of residence and of the country of nationality of the child. The laws of countries differ in their inclination to permit international adoptions. Some countries, such as China and South Korea, have comparatively well-settled rules and procedures for international adoptions, while some other countries explicitly prohibit it. African nations, have prolonged residency requirements for adoptive parents that in result rule out most international adoptions.

BIRTH OF INTER- COUNTRY ADOPTION

The statutory process of inter-country adoption gained momentum around the mid-1940s and came into force as a human response to the dilemma of war orphans and the abandoned kids and off- springs of servicemen in World War II, the Korean War and the Vietnam War. However, in the countries who give their children for adoption; lack of contraception, society’s attitudes to birth of illegitimate children and extreme poverty are the key elements leading to the dereliction of children to organisations. The concept of “male” child which is an unfortunate reality in our own country also leads to the abandonment of the girl child.

In the case of Lakshmi Kant Pandey v. UOI[1]

The Supreme Court in its judgement, pronounced that, “every child has a right to love and be loved. Only if a child is brought up in a family will he grow in an atmosphere of love, and secure ethical and material security. But if it is not potential of the biological parents or anyone about looking after the child, or if the child is abandoned by his/her family, then adoption of the child will be best for the security of the child.”

The rise in the number of children adopted by families from other nations has also resulted in a significant rise in public policy issues, leading to The Hague Convention and the International Adoption Treaty, with a range of nations changing their internal legislation, guidelines and policies to govern inter-country adoption practices. This has also contributed to a significant reduction in the prospects for hundreds and thousands of kids who need families to have this opportunity or to take advantage of this opportunity early enough in their lives to avoid the depredations, institutionalization, poverty and lack of educational opportunities.

THE LEGAL FRAMEWORK

On the international level, the Convention on the Rights of the Child (CRC) deals with inter-country adoption issues. This is also governed by the Hague Convention on the Protection of Children and Cooperation in the area of Inter-Country Adoption, 1993 (HC) and has been ratified by around 90 countries.

CRC Article 21 includes the obligation to “ensure that the child concerned in inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.”

As regards violation of the inter-country adoption criteria, in several countries the Committee on Children’s Rights, which ensures that CRC is complied with, expressed concern and recommended to certain countries that the Hague Convention should be ratified by them as means of addressing the matters.

The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 proposes two core principles, both specifically aimed at protecting the child from unethical activities related to inter-country adoption and not at encouraging the practice as such:

• Establishing of safeguards to ensure that transnational adoption is in the best interest of the child.
• To establish a system of cooperation between the contacting states to ensure that the safeguards are respected.[2]

ADOPTION LAWS IN INDIA

India is a signatory of both the CRC and the Hague Conventions. The Hindu Adoption and Maintenance Act, 1956 (HAMA) is the primary law which concerns the issue of adoption under the Hindu system.

The Juvenile Justice (Care and Protection of Children) Act, 2000 and all Amending Acts guarantee the rights of an adopted child recognized in the Hague Convention. However, the 2000 Act did not describe adoption and the concept was applied to the 2006 amendment. It has been a significant development, as the Guardians and the Wards Act of 1890 directed the introduction of a non-Hindu.

Central Adoption Resource Authority (CARA) is an autonomous body established under the Ministry of Women and Child Development and is responsible for intra-country and inter-country adoption. The CARA Guidelines state that any foreign couple wishing to adopt an Indian child must be funded by a child welfare organization, or by a social institution, approved for its residence by the government. According to the CARA Guidelines and the Juvenile Justice (Care and Protection) Amendment Act 2006, only three kinds of children are eligible for adoption:

Those children who were given up.

Those abandoned.  

Those orphaned and cared for by a professional adoption agency.

CASE LAWS

In the case of Re Rasiklal Chhaganlal Mehta[3]

 The court ruled that inter-country adoptions under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally enforceable under the laws of both states. Adoptive family must comply with the requirements of the law on adoptions in their country and must have the requisite authorisation to be adopted by the appropriate authority, thereby ensuring that the child does not suffer from immigration and obtain nationality in the country of the adoptive parent.

In the case of Mr. Craig Allen Coates v. State [4]

Through the Indian Council for Child Welfare and Welfare Home for Children, the court ruled that, in the event that the adoptive parents fail to provide clear reasons for the adoption of a child from another country, the adoption process would be prohibited and declared to be unfaithful and that CARA should provide for stricter guidance in this regard.

ISSUES ARISING DUE TO INTER-COUNTRY ADOPTION

Child trafficking: child being sold, once taken out of the native state.

Post adoption negligence in taking care of the child.

Post adoption identity problem: child is not found with the actual adoptive guardians rather with some other person(s).

CONCLUSION

Inter-country adoption or international adoption means the adoption by parents of some other nation of the Child of one nation, also referred to as cross-border adoption. Inter-country adoption is an alternative for those children who do not have or cannot have a parent in between countries, so that these children can be chosen to give under inter- country adoption.

Agencies may be complicit in abuse if they systematically refuse to function within the framework of systems, which clearly violate international rules. In order to address transnational adoption, India also needs better guidance and legislation. It is important that child safety is ensured not only within the country but when he or she is taken out of the country.

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[1]1984 AIR 469, 1984 SCR (2) 795

[2] Hague Convention, Preamble and Article 1

[3] AIR 1982 Gujrat. 193

[4] 162(2009) DLT 605