Inter country adoption

INTER-COUNTRY
ADOPTION:
AN INDIAN LEGAL PERSPECTIVE
Presentation by:
Prachi Johri
Varun Vaish
NALSAR University of Law, Hyderabad

Definition of Adoption
• “the institutionalised social practice through which a
person, belonging by birth to one family or kinship
group, acquires new family or kinship ties that are socially
defined as equivalent to biological ties and which
supersede the old one, either wholly or in part.”
-See JHA van Loon Report on Intercountry Adoption at the
Hague Conference

Indian Perspective
• Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469
– foreign adoption was held to be consistent with India’s
National Policy on Children
• In Re Rasiklal Chhaganlal Metha, AIR 1982 Guj. 193
– “Adoption is not a mere legalistic arrangement but the
creation of an environment in which the child can grow
and be integrated with society”

Adoption Process in India
Enlisted Foreign
Adoption Agency
(EFAA)/Central
Authority/Govt.
Deptt.
Recognised Indian
Placement
Agency (RIPA)
Clearance
by ACA
Matching the Child
Study Report with
Home Study Report
NOC from CARA
Petition
to the
Court
Passport
and Visa
Child
travels to
foreign
country

For Children with Special Needs
• The Supreme Court guidelines keep the procedural
requirements just the same but authorize the need
to expedite matters with greater urgency.
• The one additional documentary evidence
– certificate from the Chief Medical Officer of a
Government Hospital giving details of the health
of the child.
– required to be procured by the placement agency

 Maria Chaya Schupp v. Director General of Police
and Ors., (2010 CriLJ 883)
 It is essential to carefully scrutinize all adoption documents
along with taking down relevant permissions from biological
parents before going for inter-country adoption.
 Mr. Craig Allen Coates v. State through Indian
Council for Child Welfare and Welfare Home for
Children, (162(2009) DLT 605)
 Where the adoptive parents fail to establish clearly the motive
for adopting a child from another country, then the adoption
process would be barred and be declared as malafide.

Legal Provisions in India
Constitution of India
Art 24;
Art 45
Hindu Adoptions and
Maintenance Act, 1956
Sitabai v.
Ramchandra, AIR 1970
SC 343
Guardians and Wards
Act, 1890
Juvenile Justice (Care
And Protection Of
Children) Act, 2000 as
amended in 2006

International Framework
The Hague
Convention
on Protection of
Children and Co-
operation in Respect of
Intercountry Adoption
Convention on
the Rights of the
Child (CRC)
Problems:
#1 Art 20 “national
autonomy”
#2 Art 21 hierarchy of
options.

Practical Aspects:
Presentation Layout
• CARA-Central Adoption Resource Auth.
• Laws Pertaining to Surrogacy
• Issues Pertaining to Inter-Country Adoption.
• Conclusion

Central Adoption Resource Authority
(CARA)
• The Central Adoption Resource Authority (CARA) is an
Autonomous Body under the Ministry of Women and Child
Development, Government of India and is responsible for both
in-country and inter-country adoptions in India.
• Its objectives are to find an affectionate and caring family for
every orphan/destitute/surrendered child in the country.
• It firstly ensures that no Indian child is given for inter-country
adoption without him/her having been considered by Indian
families residing in India.
• It also provides financial assistance to various NGOs and
Government run Homes to promote quality child care to such
children and place them in domestic adoption.

Source of Authority for CARA
• The Central Adoption Resource Authority (CARA) was initially set
up in 1990 under the aegis of the Ministry of Welfare in
pursuance of Cabinet decision dated 9.5.1990.
• By Union Cabinet Decision on 2nd July 1998, the then Ministry
of Social Justice & Empowerment conferred the autonomous
status on CARA w.e.f. 18.3.1999 by registering it as a Society
under the Societies Registration Act, 1860.
• It was designated as Central Authority by the Ministry of Social
Justice & Empowerment on 17.7.2003
• For the implementation of the Hague Convention on Protection
of Children & Cooperation in respect of Inter-country Adoption
(1993).

In-Inter Country Adoption Guidelines
2004 and 2006
• In-country Adoption of Indian children is governed by In-
country Guidelines-2004. Inter-country Adoption procedure is
governed by a set of Guidelines last issued on 14th
February’2006.
• These Guidelines are a follow up of various directions given by
the Supreme Court of India in L.K. Pandey Vs. Union of India.
• The CARA Guidelines requires that every application from a
foreigner wishing to adopt a child must be sponsored by a
social or child welfare agency recognized or licensed by the
government of the country in which the foreigner is resident.
• The agency should be recognized by CARA.

Effect of Guidelines
• Firstly, it will help to reduce profiteering and
trafficking in children, might be asked to pay
unconscionable sums of money.
• Secondly, proper Home Study Report home study
report on which the court can rely.
• Thirdly, there would be a authority or agency in the
country of the foreigner who could be made
responsible for supervising the progress of the child
and ensuring that the child is adopted at the earliest
in accordance with law and grows up in an
atmosphere of warmth.

4 Aspects for Clean Adoption
• Valid Adoption the country of the child.
• Co-ordiantion by CARA, The Foreign Agency and the
Domestic Indian Placement Agency.
• Adoption recognized by the Foreign Country i.e.
Hague Harmonization.
• No hurdles in the immigration and re-settlement of
the adopted child.

Surrogacy in India
• At present, there are no laws on legalizing of
parenthood resulting from children born out of
surrogacy arrangements.
• The only legislation which we have is the
Registration of the Births and Deaths Act, 1969
which does not contain any provision regarding
parentage as a result of a surrogacy arrangement.

Justices G S Singhvi and A K Ganguly
Decision (SC)
• A German IVF child of an Indian mother was declared to have
virtually become "stateless citizens" with India refusing it
citizenship and Germany not ready to recognise surrogacy as a
means of parenthood.
• The bench held –
• “Statelessness cannot be clamped upon the children. There
must be some mechanism by which they get citizenship of
some country. Children should be allowed to leave the
country after an assurance of their citizenship has been
given.
• Children born out of surrogacy mustn’t be treated as
commodities.”

Artificial Reproductive Technologies
(ART) Guidelines
• Promulgated by Parliament.
• Form a base as with regards to legislation in this
field.
• Provides for careful practice of ART, accreditation of
infertility clinics and supervision of their
performance in India.
• Does not maintain a Registry of ART clinics in India.
• Asserts that the surrogate mother is under any
circumstances cannot be considered to be the legal
mother.

ART Guidelines
• Para 3.5.4 of the ART Guidelines says that a surrogate mother carrying a child
biologically unrelated to her must register as a patient in her own name.
• While registering she must mention that she is a surrogate mother and
provide all the necessary information about the genetic parents such as
names, addresses, etc.
• She must not use/register in the name of the person for whom she is
carrying the child, as this would pose legal issues, particularly in the untoward
event of maternal death (in whose names will the hospital certify this death?).
• The birth certificate shall be in the name of the genetic parents. The
clinic, however, must also provide a certificate to the genetic parents giving
the name and address of the surrogate mother.
• All the expenses of the surrogate mother during the period of pregnancy and
post-natal care relating to pregnancy should be borne by the couple seeking
surrogacy.

• The surrogate mother would also be entitled to a monetary
compensation; the exact value of this compensation should be decided
by discussion between the couple and the proposed surrogate mother.
• In cases where the surrogate mother also donates her egg, the
authorizing parents / infertile couple will have to legally adopt the
child. This fact will also have to be recorded in the birth certificate
issued to such a child.
• Furthermore, where the genetic material is supplied by third party
donors, then in such cases the birth certificate issued to the child will
initially have the names of the genetic parents.
• Here, it becomes mandatory for the infertile couple to legally adopt the
surrogate child so born, before they are declared to be the legal parents
of such a child.
• However, Para 3.5.5 mentions that - A third-party donor and a
surrogate mother must relinquish in writing all parental rights
concerning the offspring and vice versa.

Issues Pertaining to Inter-Country
Adoption
• Section 361 of the Indian Penal Code provides for law against
kidnapping and abduction. IPC territorial Jurisdiction.
• The innocent adoptive parents duly comply with the
requirements of the HAMA 1956 for taking the child in
adoption.
• The adoption deed is presented to the immigration
authorities and this is where the dispute commences.
• Adoption (Designation of Overseas Adoptions) Order
1973, SI 1973/19: (UK Immigration Law)

1. When a child has been legally adopted from a country
whose adoption orders are recognised as valid under UK
law, i.e. from a ‘designated’ country, then the parents may
apply for the child to join them in the United Kingdom as
their adopted child.
2. If the child has not been legally adopted from a ‘designated’
country or the adoption is from a country whose adoption
orders are not recognized as valid in UK law, i.e. the child is
from a ‘non-designated’ country, entry clearance will have
to be obtained for the child to travel to the United
Kingdom for adoption through the English courts.
3. India is specified as a ‘non-designated’ country under the
1973 Order.

Singh v.Entry Clearance Officer, New
Delhi ([2004] EWCA Civ. 1075)
• The Court held that that the bias against Indian adoption custom was
wrong and that it was a breach of the right to family life and
discriminatory to refuse an adopted child entry clearance to the United
Kingdom by giving less weight to an adoption effected by customary
law in India and which was recognized as valid there on the ground that
it was not a recognized practice in English law.
• Furthermore, adoptions within the family fold are not encouraged,
while adoption applications by foreigners seeking to adopt children from
orphanages and welfare homes receive a more positive treatment.
• No benefit of the Hague Convention, rate of refusal at the Embassy level
is very high.

Conclusion
• CARA’s involvement is minimalistic. They merely provide a seal of
approval. Direct contact between foreign Agency and Domestic Placement
Agency. Female Trafficking Rampant.
• Adoption Agencies ridden with Corruption and the use of personal
connections to push applications.
• No legislation for Surrogacy.
• Rights of a Child to know about his biological parents.
• No Directions given to Embassies to ensure recognition of Adoptions
under the JJ Act or the HAMA.
• No Uniform Procedure for Inter-Country Adoption. Uniform Code. Judges
dealing with adoption cases, especially in small towns and cities in
India, are not predominantly acquainted with the interpretation of the
inter-country adoption Guidelines.

Conclusion
• Prevent Multiple Adoptions particularly in the
case of presence of bio-logical Children.
• Fake hurdles in In-country Adoption.
• ‘Best Interest of the Child’ Principle

Inter country adoption

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