INTRODUCTION
“Adoption is not about finding children for families, it’s about finding families for children.”
-by Joyce Maguire Pavao
Inter-country adoption also known as transnational adoption, is a mode of adoption in which an individual or a couple becomes the legal parent(s) of a child who belongs to a different nation, aimed at providing homes for orphaned and needy children. India has made strides in this field, finding families for institutionalized children through domestic and international adoption. However, there are concerns about exploitation and abuse in the international adoption process, with some viewing it as a lucrative market. Adoption agencies sometimes prioritize profit over the best interests of children, leading to controversy and calls for reform to ensure ethical practices and protect vulnerable minors. Adoption is the legal process by which individuals assume parental rights and responsibilities for a child who is not biologically theirs. In India, adoption is governed by various laws depending on religious affiliation. Inter-country adoption, or transnational adoption, involves adopting a child from one country while residing in another. The Hague Convention of 1993 reinforced international standards for protecting adopted children. In 2003, India established the Central Adoption Resource Authority (CARA) to regulate both domestic and inter-country adoption, ensuring adherence to legal frameworks and safeguarding child welfare.
International Provision for Inter-country Adoption
Since the 1980s, the United States recognized the need for laws to regulate inter-country adoption. In 1993, the Hague Convention was established, coming into force in 1995 and ratified by approximately 90 states. It aims to establish a safeguard system of cooperation among contracting states to ensure the best interests of the child and prevent malpractices in inter-country adoption. The 1989 United Nations Convention on the Rights of the Child obligated member states to enact laws to safeguard inter-country adoption and ensure a humanitarian approach to the process.
Additionally, various international instruments and provisions exist to protect and promote children’s rights, especially in inter-country adoption, including the Geneva Declaration of the Rights of the Child (1924), the United Nations Declaration on the Rights of the Child (1959), the United Nations Declaration on Social Legal Principles Relating to the Protection and Welfare of Children (1986), the European Convention on the Exercise of Children’s Rights (2000), and the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors (1984). However, these commissions do not function as law until legislatures enact laws incorporating their principles.
Legal Safeguards for Inter-country Adoption in India
In ancient India, adoption was parent-based, with restrictions on the number of sons that could be adopted to continue the lineage. However, modern adoption laws in India, such as the Hindu Adoption and Maintenance Act, of 1956, provisions in the Guardian and Ward Act, of 1890, and the Juvenile Justice Act, of 2015, focus on the welfare of the child. The Indian Constitution provides fundamental rights for children, including the right to live with dignity and protection from exploitation. The Supreme Court, in landmark cases like Laxmi Kant Pandey and Re Je Kevin Salemo, laid down guidelines for inter-country adoption, emphasizing the importance of thorough assessment and compatibility between adoptive parents and children.
India’s adherence to international conventions like the Hague Convention and the National Policy for Children, 1974, underscores its commitment to child welfare. Notable cases, such as Mr. Craig Allen Coates vs. States and Jayant Lal Shah vs. Asha, have shaped adoption laws, emphasizing the need for good motives and cultural considerations in adoption process. The Juvenile Justice (Care and Protection of Children) Act is a significant development in inter-country adoption, providing an alternative to institutional care and prioritizing the best interests of the child. These legal frameworks and judicial precedents reflect India’s evolving approach to adoption, balancing tradition with modern safeguards for child welfare.
Challenges to the present Legislation for Inter-country Adoption in India
Inter-country adoption, involving the transfer of children across borders, raises significant sovereignty issues and falls under the purview of international law. While initially perceived as a means for children from impoverished nations to secure a better life, the reality often belies this altruistic facade. Despite efforts such as the 1984 Laxmi Kant case, which sought to establish a structured procedure for global adoption within the country, concerns persist regarding the efficacy of existing regulations in ensuring child welfare. Instances of unrestrained sexual exploitation, inadequate monitoring, and unsuitable placements underscore the limitations of current provisions. In response to these challenges, a Public Interest Litigation (PIL) filed by the Thane-based NGO “Sakhee” prompted Supreme Court intervention, highlighting the absence of punitive measures for unauthorized adoption agencies. The court’s scrutiny ultimately extended to questioning the viability of inter-country adoption amid claims of inadequate legal protection for children’s rights.
Beyond legal intimacies, the practical implications of inter-country adoption provoke ethical dilemmas. Despite idyllic portrayals of transformed lives, disturbing realities such as child laundering and trafficking tarnish the narrative. The absence of a universal guarantee for the well-being of orphans abroad begs the question: are all orphans truly in need of familial placement, or are they rendered homeless to serve the vested interests of adoption agencies?
Experts, including Nomita Chandy and Bharti Sharma, underscore the imperative for a nuanced approach to adoption. Concerns surrounding conflicting legislation and rushed placement strategies underscore the need for a comprehensive legislative framework that prioritizes the child’s welfare over expedience. Recent cases like that of Sherin Mathew underscore the urgent need for robust regulations to safeguard vulnerable adoptees from potential exploitation and abandonment in foreign lands. Reports from the Law Commission of India and judicial figures like Justice K.N. Singh and Dr. Justice A.R. Lakshman echo these concerns, advocating for stringent measures to curb malpractices and ensure the holistic protection of children’s rights. The imperative to shield innocent children from exploitation underscores the urgent need for legislative reform and international cooperation in the realm of inter-country adoption.
Conclusion
Adoption across political and cultural borders can be seen as both an act of love and an act of violence, encompassing both a generous embrace and a painful separation. While there are numerous malpractices and scandals associated with inter-country adoption, the focus often neglects the dire circumstances faced by children without parental care, such as living on the streets or in institutional conditions. Millions of children worldwide suffer without adequate care, yet there is a lack of laws or policies prioritizing their welfare or facilitating adoption for those in need. Despite its noble intention of providing shelter to orphans, inter-country adoption is marred by issues such as corruption, baby buying, and kidnapping. Moreover, it cannot address the root causes of child abandonment, such as poverty and injustice. Policymakers must address these systemic issues and ensure that adoption processes are conducted ethically and transparently.
In the context of India, inter-country adoption operates under the guidelines of the Central Adoption Resource Authority (CARA), established following the Laxmi Kant case in 1984. There is a need for separate guidelines for domestic and international adoptions, with stringent measures including penal offenses for negligence by adoption agencies. CARA’s primary objective should be to prevent children from becoming stateless and ensure that they obtain the nationality of their adoptive parents. However, bridging the gap between legislative provisions and the challenges associated with inter-country adoption is crucial. With proper regulation and oversight, inter-country adoption has the potential to bring joy to thousands of families and fulfill the dreams of many children in need of loving homes.
By: Esha Gandhi (Intern)