Inter-country Adoption

INTER-COUNTRY ADOPTIONS

Adoption refers to the legal process of becoming a non-biological parent and it means removal of the child from the natural family and transplantation in the adoptive family. As per The Juvenile Justice Act, 2000 section 2 (a) adoption means the process through which the adopted child is permanently separated from his biological parents and became the legitimate child of adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship. Adoption is the creation of a new, permanent relationship between an adoptive parent and child. Once this happen, there is no difference between a child who is adopted and a child who is born into the family.

Inter-country adoption is the placing of a child for adoption outside that child’s country of birth. The laws of different countries vary in their willingness to allow inter-country adoptions. Some countries such as China and Vietnam have well established rules and procedures for foreign adopters to follow, while others like UAE forbid it.

At global level CRC (Convention on the Rights of the child) constitutes the basic standards of adoption. The inter-country adoption is regulated by the Hague Convention on the Protection of Children in respect of inter-country adoption. The Hague Convention set out to do two main things i.e. establishes safeguards to ensure that inter-country adoption takes place in the beat interest of the child and with respect for his or her fundamental rights as recognized in international law. And establishes a system of cooperation among contracting states to ensure that those safeguards are respected and thereby prevent the adduction, the sale or traffic in children. In many ways it is implementing the treaty for the CRC regarding inter-country adoption. The system of cooperation established by HC revolves around the governmental central authority in each country to oversee adoptions.

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The children who are adoptable for inter-country adoption are the children who are orphans and are already under the care of some specialized adoption agency, abandoned children and surrendered children. There are some problems such as child trafficking or child laundering, forced prostitution, forced and exploited labor forcedly taking out different organs and many other problems in inter-country adoptions.

LAWS OF ADOPTION IN INDIA

The law relating to adoption in India under Hindu system is contained in HAMA Hindu Adoptions and Maintenance Act,1956. The Juvenile Justice Act, 2000 and The Amendment Act, 2006 guarantees rights to the adopted child. The amendment said that the adopted child will become the legitimate child of the adoptive parents. Section 41(3) of the JJ Act governs all matters of inter-country adoptions on the basis of guidelines provided to it.

The order of priority is mentioned in rule 8(5) which is to be followed in the cases of inter-country adoptions,

(i) Non-Resident Indian (NRI)

(ii) Overseas Citizen of India (OCI)

(iii) Persons of Indian Origin (PIO)

(iv) Foreign Nationals.

Rule 31 speaks about power of state government to constitute a committee to be known as Adoption Recommendation Committee (ARC) to issue recommendation certificate for placement of a child for inter-country adoption.

CONCEPT OF INTER COUNTRY ADOPTION IN INDIA

The validity of inter country adoption was discussed in the case of In Re Rasiklal Chhaganlal Mehta, the court held that inter country adoptions under section 9(4) of the Hindu Adoption and Maintenance Act,1956 should be legally valid under the laws of both the countries. The parents must fulfill the requirements of law od adoption of their country and the authority should ensure that the child will not suffer in the adoptive parent’s country.

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The supreme court in Laxmi Kant Pandey v, Union of India framed the guidelines for inter country adoptions. A regulatory body Central Adoption on Resource Agency (CARA) was setup by government of India in 1989. CARA is an autonomous body under the ministry of women and child development and government of India is responsible for both in-country and inter-country adoptions. The CARA guidelines provide that every application from a foreigner wishing to adopt a child must be sponsored by a social and welfare agency recognized or licensed by government of the country in which the foreigner is resident. In this case the supreme court elaborated the guidelines considering the possibility of child trade for institution as well as slave labour, legal regulation of such adoption was essential. Therefore, Justice Bhagwati created a scheme for regulating both inter and intra-country adoptions. The supreme court hell that any adoption in violation or non-compliance with may lead adoption to be declared invalid and expose such person to strict action including prosecution. In the case of Mr. Craig Allen Coates v. State, the court that if the   adoptive parents fail to establish their clear motive for adopting the child then the process will be declared mala fide.

CONCLUSION

Adoption involves a permanent termination of parental rights and links the child permanently to another family. So, the laws related to adoption should be very strict. The children are vulnerable and totally dependent on the adults who are making their life decisions. Hence, safeguarding their rights and interests should be given prime importance.

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Author: sushma,
Ideal Institute of Management and Technology, 2nd year (BALLB)

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