Bending the rules
Officials of the Andhra Pradesh State Department of Women and Child
Welfare shifting children from Precious Moments,the home run by Anita
Sen in Hyderabad
Frontline Volume 22 - Issue 11, May 21 - June 03 2005
Bending the rules
SIDDHARTH NARRAIN,ASHA KRISHNAKUMAR
The Law Commission , in its 153rd report, recommended that a uniform
law be enacted to regulate adoptions, but nothing seems to have
happened in this regard.
K. RAMESH BABU
IN India, there is no legislation for inter-country adoption (ICA). The
rules were laid down by the Supreme Court in a series of cases, but the
most important is Laxmikant Pandey v. Union of India (1984). Pandey, a
lawyer, requested the Supreme Court in a letter to restrain Indian
private agencies "from carrying out further activity of routing
children for adoption abroad." His petition sought directives to the
Government of India, the Indian Council of Social Welfare (ICSW), and
the Indian Council of Child Welfare (ICCW) to carry out their
obligations in the matter of adoption of Indian children by foreign
parents. The apex court, relying on existing constitutional safeguards,
international conventions and the Guardians and Wards Act, 1890, laid
down a number of principles and norms that adoption agencies had to
observe while giving a child in adoption to foreign parents.
Several agencies push inter-country adoptions, saying that Indians
adopt fewer than 2,000 children a year and are not too keen on
adoption. But the long waitlist of Indian couples belies this claim.
Adoption agencies bend over backwards to do inter-country adoption,
primarily lured by the money involved.
The adoptions (intra- and inter-country) go by the norms set by the
Supreme Court in the Laxmikant Pandey case and the 1995 guidelines of
the Central Adoption Resource Agency (CARA), which itself was born out
of the apex court ruling.
Some of the salient features in the apex court judgment are:
* The Indian agency through which an application of a foreigner for
taking a child in adoption is routed must, before offering a child in
adoption, make sure that the child's parents have relinquished the
child for adoption and submit a document of surrender to the court
*The agency that offers a child for adoption must prepare a detailed
`child study report' with the help of professional social workers,
providing all details such as the child's health; physical,
intellectual and emotional development; the social worker's assessment
of the child and the reason for placing the child for inter-country
adoption; a health report by a registered medical practitioner;
information on the biological parents; and so on. The adopting foreign
parents must have access to the `child study report' before they decide
on adopting the child (page 20).
* Before entertaining an application for guardianship, the court should
give notice to the ICCW or the ICSW for scrutiny of the application.
*The foreigner, who is appointed guardian of the child, should submit
to the court as also the agency that processed the application for
guardianship quarterly progress reports of the child along with the
latest photograph for the first two years and once every six months for
the next three years (page 23).
Set up on the directions of the Supreme Court, CARA is expected to act
as a clearing house of information on children available for
inter-country adoption. All applications by foreigners seeking Indian
children are forwarded by the social or child welfare agency in the
foreign country to CARA-recognised agencies with which it works in
India. CARA was set up in June 1990, under the aegis of the Union
Ministry of Social Justice and Empowerment. Subject to the approval of
the Central government, it frames its own regulations and bye-laws. No
agency can process ICA adoption without a `no-objection certificate'
Some of the crucial features in Part I, Section I of the 1995 CARA
guidelines, based chiefly on the 1984 Supreme Court judgment, are:
* CARA shall maintain regular contacts with Indian diplomatic missions
abroad to safeguard the interests of children of Indian origin adopted
by foreign parents.
* A detailed `home study' of the foster parents by professional social
workers must be sent to CARA and the Indian agency. The `home study'
should contain the details of the adopting family including its
background; economic status; attitude of grandparents and other
relatives towards the adoption; and the reasons for wanting to adopt an
* The process of adoption abroad can begin only after securing a `no
objection certificate' from CARA, which is given after scrutinising all
the documents and papers from the foreign sponsoring agency.
* Among the documents needed for the `no-objection certificate' are
undertakings from the foreign agency that the child would be legally
adopted by the foreign parents, according to the local laws within two
years of the child reaching the country; that a report on the progress
of the child would be sent regularly for five years; and that in case
of disruption of the adoptive parent's family the foreign agency would
take care of the child until it finds another suitable family.
*The Indian agency is entitled to recover from the adopting family the
costs incurred in preparing and filing the application in the court,
the passport and visa expenses, preparation of the child study report
and medical expenditure incurred on the child, all not exceeding
Rs.6,000 and a maintenance expenditure of Rs. 78 a day from the date of
selection of the child (this amount has been revised). The cost of
travel of the child and also of an escort needs to be reimbursed. If
any recognised agency exploits the foreign enlisted agency financially,
CARA may, after giving an opportunity to the agency to explain, suspend
or revoke its recognition.
* * *
Regulatory, Scrutinising and Monitoring Agencies
Department of Social Welfare
The DSW is the monitoring and licensing authority in every State. Only
after obtaining the licence from the DSW are agencies allowed to
Child Welfare Committee
This committee has an important role in the process of declaring an
abandoned child "free for adoption." It also has a mandate to certify
institutions "fit" to conduct adoptions and to receive abandoned
Voluntary Coordination Agency
Set up under the Supreme Court guidelines, the Voluntary Coordination
Agency has the clear mandate of identifying Indian adoptive parents; in
case this is not possible for a particular child within the mandated 30
days, the child may be cleared for inter-country adoption.
One of the guidelines of the 1984 Supreme Court judgment was that in
every case filed for child adoption, the ICCW or the ICSW has to
scrutinise and confirm that all guidelines have been adhered to and
this is in the best interest of the child. In Tamil Nadu, the ICSW was
identified as an agency to scrutinise adoptions in June 1993. However,
the Guild of Service, a recognised placement agency, and ICSW Tamil
Nadu are closely linked.
* * *
In its 1984 judgment, the Supreme Court said that if a child is to be
given in inter-country adoption, it is desirable that adoption is done
before the child reaches three, so that the child has a better chance
of assimilating into a new culture. The parents' consent cannot be
taken before the birth of the child or within three months of birth of
the child. Parents have to be counselled before taking a decision to
give the child in adoption. Parents must be informed that once the
child is adopted, they cannot have further contact with it. Once the
parents decide to give the child in adoption, they should be given two
months to reconsider their decision, after which their decision becomes
The court said that since there was no legislation that dealt with
adoption of a child by a foreign parent, the procedures laid down by
the Guardian and Wards Act, 1890, should be followed. When a foreigner
wants to adopt an orphan child, he has to apply to the District Court
asking to be appointed a guardian of that child and after such
appointment the foreigner can take the child to his country with the
permission of the court.
But in a recent judgement, a District Court in Delhi (Hubert Pournow
and Kirsten Rasmussen v. Indian Council of Child Welfare, 2005) held
that all cases of inter-country adoption would be dealt with under the
Juvenile Justice (Care and Protection of Children) Act, 2000. The court
has found that Section 41 of the Juvenile Justice Act specifically
gives the Board constituted under the Act powers to give children in
adoption. Section 42 of the Juvenile Justice Act provides for foster
care until adoption. The court said that since adoption is defined in
the Juvenile Justice Act as giving permanent custody of the child, in
the absence of legislation dealing specifically with inter-country
adoption, there is no need to resort to the Guardian and Wards Act. The
Guardian and Wards Act only gives temporary custody, until the child is
adopted under the laws of the country of the adopting parents.
The only serious attempt at passing uniform legislation governing
adoption was in December 1980, when the Adoption of Children Bill was
introduced in the Lok Sabha. The Bill did not become law as it was
opposed by sections of the Muslim community, which claimed that the law
would curtail their religious freedom.
In 1994, the Law Commission of India in its 153rd Report recommended
that the government enact a uniform law to regulate adoptions. It
suggested that the matter of adoption under the proposed law should be
decided by a family court. When there is no family court, a district
court having jurisdiction over the place where the child ordinarily
resides would be the competent authority. The report recommended that
the powers of CARA must be strengthened and at the same time it should
be made accountable to Parliament through annual reports. The
Commission drafted a law on inter-country adoption incorporating its
suggestions. But nothing seems to have happened on this front.
The United Nations Convention on the Rights of the Child, 1989, to
which India is a signatory, says that a child deprived of parental care
is entitled to the protection and assistance of the state and it is the
state's responsibility to help in establishing foster families. Article
21 of the Convention says that states must recognise that inter-country
adoptions can be recognised as an alternative means of a child's care,
if the child cannot be placed in a foster or adopted family or cannot
be suitably cared for in the child's country of origin. States must
ensure that a child given in inter-country adoption enjoys safeguards
and standards equivalent to those existing in national adoption.
The Convention on the Protection of Children and Cooperation in Respect
of Inter-Country Adoptions, 1993 (or The Hague Convention), to which
India is a signatory, lays down safeguards that contracting states must
adopt while giving children in adoption to foreign parents. It says
that adequate safeguards must be taken to ensure that inter-country
adoptions are made in the best interests of the child, that the
fundamental rights of the child are protected, and that the child is
not abducted, sold or trafficked.
However, despite attempts to put in place a system to avoid fraud under
cover of a noble, humanitarian, child welfare measure, the rules are
routinely bent and the loopholes in the guidelines exploited to support
the multi-billion dollar global adoption industry.