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Inter-Country Adoption

Latest amendment in Adoption & Regulations under JJ Act, 2021 ease the process of inter-country adoption in India.

Adoption Amendment Regulation, 2021 has inserted a new chapter in the principal regulations. This chapter prescribes the procedure of inter-country adoption under Hindu Adoption & Mediation Act, 1956 (HAMA). The Ministry of Woman & Child Development issued a notification waiving the two-year mandatory period that an adoptive family would have to stay in the country for constant monitoring by Central Adoption Resource Authority (CARA) and other authorities under HAMA. According to this new amendment the adoptive parents will get the no-objection certificate from CARA, and they don’t need to go to court for the same. Also, the ministry asked CARA to frame regulations under the HAMA to ease the process of inter-country adoption under the legislation. In this article, we will enumerate the concept of inter-country adoption, the new amendments, and legislation.

Concept of Adoption

Even before the word adoption existed the world has been practicing it and reaping its benefits for a long time. Adoption is a process that enables a childless person to make somebody else's child their own. Every child has a right to love and be loved and to nurture in an environment filled with affection and love including moral & material securities. And this is possible only if the child is brought up in a family. Adoption can be a very emotional, social & legal process for both the child and parents. The process involves children who are not be raised by their biological parents to become full & permanent members of the family complete in all social and legal aspects.

Inter-Country Adoption

Under inter-country adoption, any individual or any couple can become legal parents to any child who is a citizen of a different country. If an Indian citizen is considering overseas adoption, they should meet the eligibility criteria of that country, in addition to meeting eligibility criteria within India. For example, the adoptive parents need to be willing to meet the needs of children requiring adoption through CARA.
Legislative Background

Inter-country adoption is also known as transnational adoption. A few years back, India did not have specific laws for inter-country adoption. In a famous case of Rasiklal Chhaganlal Mehta Gujarat High Court and the landmark case of Laxmikant Pandey v. Union of India, the Supreme Court issued certain guidelines regarding such adoption process, and subsequently, CARA (The Central Adoption Resource Authority) was established for the regulation of inter-country adoptions in India. Later CARA was designated as the Central Authority for implementation of the Hague adoption convention.

Till 2000, Juvenile Justice Act’s provisions related to adoption were not very clear and comprehensive but in the 2015, the J.J. act made the laws regarding adoption process complete and streamlined. The law clearly states that all inter-country adoption will take place only as per the provision of the Juvenile act, and adoption regulations framed by CARA.

Principle of Subsidiarity

The basic principle of childcare and protection emphasizes that the child should be raised by his or her own biological family. But if a child does not have a family, then efforts should be made to place the child in an alternate family-based care for a peaceful and healthy growth. Here adoption may be considered, but while considering adoption, it should be preferred that the child remains in his or her original social, cultural environment and this the prime reason why in-country adoption should be the first choice.

If a suitable family cannot be found in the country of origin, inter-country or cross-border adoption may be considered, so that a permanent family can be offered to a child.

What is CARA?

“The Central Adoption Resource Authority (CARA) is a statutory body of the Ministry of Women and Child Development, Government of India. It was founded in June 1990. It acts as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.”
What is the Hague Convention?

Hague Convention on the protection of children & cooperation in respect of inter-country adoption is an international treaty. This treaty was concluded in Hague on 29th May 1993 and came into force on 1st May 1995. The document of the treaty was drafted by the Hague Conference on private international law and till now the treaty has been ratified by 99 countries and 3 countries have signed it but not yet ratified.

The countries which have ratified the conventions are supposed to follow the conditions or the standards as far as possible. Many countries which have not ratified the convention are neither permitted to participate in foreign adoptions of their children nor are allowed to adopt foreign children by their residents.

Purpose of The Hague Convention

The purpose of the Hague convention is to safeguard the best interests of the adopted child and to prevent illegal, irregular adoptions so that both the families and child are protected at all costs. To achieve this purpose, it has set out clear roles, responsibilities, and procedures regarding inter-country adoptions. It has also established a system of cooperation between the authorities of the child’s native country and the receiving country. It provides inter-government recognition of the adoption, which has taken place following the Hague convention. Such adoptions shall be held valid by both the countries and no adverse consequences will be faced by the adopted child and the adoptive family.

India has signed and ratified the Hague convention in 2003 and it is also a member of the Hague Conference. An NRI, OCI, or a foreign prospective adoptive parent who wishes to adopt a child from India must follow the Indian guidelines. These regulations are required to check the illegal practices like trafficking, kidnapping, and sale of children and corruption.

Laws, Applicable on Inter-Country Adoption in India

All inter-country adoptions, whether it is an adoption of an orphan or an abandon, or a surrendered child, or adoption of a relative’s child, can be done only as per the provisions of the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017 (framed by CARA). These provisions give effect to the Hague Convention on adoption, to which India is a contracting party & therefore, India is obligated to adhere to its conditions.
Adoption Amendment Regulation, 2021

The latest amendment bill 2021 passed by the Rajya Sabha in July 2021 and made a few changes in the Juvenile Justice Bill (Care & Protection of Children) Act, 2015 related to adoption procedure.

It brought new rules to facilitate the transnational adoption under Hindu Adoption & Maintenance Act (HAMA) by asking CARA to frame regulations regarding adoption under the legislation. Earlier, the families had to go to court for the no-objection certificate in transnational adoption cases but now after this amendment, adoptive families can obtain a certificate of no-objection to take the child abroad from the Central Adoption Resource Administration (CARA) which is a government’s adoption authority.

Under this amendment, the ministry waived the two-year mandatory period of stay in the country for constant monitoring by CARA and other authorities. Following this new rule, adoptive families can now inform Indian diplomatic missions two weeks in advance of their intent to travel with the adopted child. During this process, the families must furnish all details of their residence. Hereby, The Indian missions will then monitor the progress and security of the adopted child, instead of CARA and other authorities.

How To Proceed?

CARA primarily deals with the adoption of orphan, abandon & surrender children through its associated recognized adoption agencies. The parents who wish to adopt a child must be sponsored by a child welfare agency or a social agency that is recognized by the government of the country in which the foreign couple resides.

If there is no Authorized Foreign Adoption Agency or Central Authority in the country of the couple, then they shall approach the Government department or Indian diplomatic mission concerned in that country for the purpose. The adoptive parents are required to register with CARA and need to follow the guidelines prescribed by the authority.

Challenges Arise in Case of Inter-Country Adoption

There are also some regulatory challenges to transnational adoption. These regulations are required to check illegal practices like trafficking, kidnapping, exploitation, child labor, and the sale of children. The major object of the amendment is to prevent such illegal activities against children. 

Some of the challenges that come with inter-country adoption are –
  • Lengthy Process
Due to the Lengthy process of adoption in our country, sometimes it is tough and cumbersome to attain the documents of adoption like NOC, etc. within a limited time for adoptive parents. Hence, to speed up the procedure the Ministry of Woman & Child Welfare introduces some new guidelines and issues directions to CARA.
  • Illegal Practices
Sometimes people who want to be adoptive parents have malicious intentions towards the adoption of a child, and in such cases, after taking them to other countries the child can be the subject of illegal activities like exploitation, child labor, human trafficking, etc. To ensure the safety of children and to prevent such illegal practices the government should proceed with the process of adoption only after conducting a thorough investigation with all required legal proceedings.
  • Post Adoption Identity Problem
In transnational adoptions, the procedures are generally onerous and lengthy. Adoptive parents should complete the entire adoption procedure here in the child’s native country as well as their own country by following all the regulations of adoptions of the countries involved. In a situation where they fail to complete the adoption process of a foreign country after taking the child abroad and the guardian does not turn out to be the adoptive parents of the child, the condition can significantly worsen for the child. Hence, the Child Protection Authorities, CARA, and now the Indian diplomatic missions ought to ensure the safety of adopted children every time.
  • Post Adoption Negligence
In such inter-country adoptions, it is very tough to monitor the child custody in hands of adoptive parents regularly therefore, there is a high possibility of negligence by the parents towards adopted children. Hence, the government seeks the recommendation of adoptive parents by a child welfare agency or a social agency that is recognized by the government of that country in which the foreign couple resides, to ascertain the security of the child.

There has always been a tussle between the two acts & their legitimacy. The recent legislative modifications bring provisions with regards to adoption via introducing more universally acceptable adoption law instead of the earlier rigid Hindu Adoptions & Maintenance Act, 1956 and Guardians of the Ward Act, 1890.

There were many challenges under HAMA regarding the inter-country adoption process. It was an arduous and laborious process to get a NOC from the court when adoptive parents got a job in a different country and because of the delays in NOC, it was difficult for them to shift in time. The Ministry of Woman & Child Welfare stated that they have made this process easier by transferring the NOC authority from the court to CARA, and they can further ensure the other monitoring factors for child custody as well.

Adoption Amendment Regulations, 2021 streamlines adoption procedures for orphans, abandoned & surrendered children, and the existing Central Adoption Resource Authority. Also, as per the guidelines of the ministry, we are looking forward to the new framework regulations under Hindu Adoptions & Maintenance act by CARA. This legislative framework would certainly bridge the gap between different adoption laws in India and will harmonize the law regarding inter-country adoption.

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