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.

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 (page 22).

*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' from CARA.

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 Indian child.

* 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.

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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 conduct adoptions.

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 children.

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.

Scrutinising Agencies

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

, a recognised placement agency, and ICSW Tamil Nadu are closely linked.

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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 irrevocable.

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.