This concept is also known as “Transnational adoption” or “International adoption”. It can be defined as the adoption of a person from a different country. In this scenario, an individual or a couple becomes the legal adoptive parents from a different nation. Intercountry adoption hereinafter referred to as “ICA” involves moving children from one nation to another for Adoption. Through this process, the child’s duties will be transferred to the adoptive parents from the natural parents. This concept was brought into practice to adopt children from underdeveloped or developing countries where they cannot afford adequate care and the children are being put into tough circumstances by becoming orphans. Parentless children adopted are from couples residing in rich and developed countries which became a viable option to a childless couple who were interested in parenting. This is that usually the giving country has an increase in population, has difficulties facing extreme poverty with a poor economic system that leads to the abandonment of children[1]
Origin of ICA
Some countries recognize this kind of adoption, where some countries forbid it. Though the practice of adoption has been a recognized concept from Purana, the concept of Intercountry adoption gained importance at a later point of time. This started gaining attention in the last half of the 20th century. At present, the institution of adoption gained its international importance paving the way to adoption from all the countries with some restrictions and criteria.
“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and moral and material security and this is possible only if the child is brought up in a family”. This was stated in Lakshmi Kant Pandey v. UOI[2] where the apex court expressed its opinion that if the biological parents or anyone can’t look after the child, or if the child is abandoned by his/her family, the adoption of the child will be best for the security of the child. Therefore, if it is not possible to trace the natural parents or if the parents are not willing to take care of the child, then the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents.
Since there is no actual legislation present in India, the High Court of Bombay and Delhi framed a few rules but that was also found to be quite insufficient. Then attempts were made to legalize Intercountry Adoption through the Rights of Child Resolution adopted by the United Nations General Assembly on November 20, 1959. Followed by this, the Guidelines were also formulated and adopted by the Economic and Social Council of the United Nations and also through the adoption of the Children Bill, 1980 relating to Intercountry adoption legislation.
Legal enactments for Inter-country adoption
On the International front, the ICA matters are now dealt with under the Convention on the Rights of the Child (CRC). This concept is also regulated by the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993. This is ratified by 90 countries. In case of national adoption Article 21 of the CRC imposes an obligation on the adopting parents to safeguard the adopted child and ensures that they enjoy the same level of standards and projection to those who are in existence [3] The CRC has expressed their concern over the violation of all kinds of transnational adoption standards in many countries and implies that the Hague Convention should be ratified by these countries.
The CRC gives to real parents and family in the life of a child and emphasizes the fact that the State should assist them in all ways from safeguarding their rights in case if the child faces any problem with the adopted family. After all those efforts, if the child is suffering from a difficulty then the concept of alternative care of the child comes into effect[4]. According to our Indian constitution, it gives paramount interest to the interest and welfare of the child. Article 15(3) contains special provisions for children. Clause (e) and(f) of Article 39 of our Indian Constitution directs its policy that the state should secure the children and the tender age of those children should not be abused or forced into any illegal labor or trafficking. It directs its policy towards giving facilities for the child to develop healthily and that those children are protected against all kinds of exploitation. It is an important factor in Intercountry adoption that the child is given the same legal status and rights including the inheritance as given to their natural children.
In all Intercountry adoption-related agreements, the welfare and best interests of the child are given prime consideration. Parents should provide information about the child’s background and development and their health. Before any adoption placement is finalized, the child concerned shall be consulted in a manner appropriate to his/her age and level of development. The appropriate agencies present in the given country should monitor the reimbursement of costs involved in inter-state adoption to prevent profiteering and trafficking in children.
The Hague Convention sets out to do two main things, on the protection of children and from illicit practices in respect of inter-country adoption, rather than to promote the practice as such:
- The best interest of the child should be given primary importance when it comes to Transnational adoption
- To ensure safeguards to the children concerning their fundamental rights guaranteed under
- To create cooperation between the states and to pledge that those safeguards are respected and they prevent the abduction, the sale or trafficking of children[5]
Other guidelines under the Hague Convention is to look into the fitness and ability of the adoptive parents, keeping a restriction on private adoption by illegal means, prohibition of contact between the adoptive parents and the real parents before the child has been set free for adoption by the Central Authority, and ratification of the Hague Convention by all the countries.
The Central Authority has been given all the rights under the convention and it should check that the child is mature enough and attains proper age before they get adopted. The consent of the child has been taken (giving importance to the interest and considering the opinion and wishes of the child), and it has not been taken through any manipulation or by compensation or payment by any kind[6]. All information regarding the child’s origin, the child’s medical history, and information about the biological parents and their place of residence should be preserved, but access to such data should be restricted only to the authorities concerned. Those personal data gathered should only be used for which they were gathered. [7]
Concept of Intercountry Adoption in India
The primary law in India which relates to adoption under the Hindu System is the Hindu Adoption and Maintenance Act, 1956 but India is a signatory to the CRC and the Hague Convention regarding Inter-country adoption. The Juvenile Justice (Care and Protection of Children) Act, with all the Amending Acts till the latest is being in 2015 guarantees the right of an adopted child that is recognized under the Hague Convention. The 2000 Act did not define adoption, and it was defined in the 2006 Amendment. Adoption by a non-Hindu that is the Muslims, Christians and Parsi was guided by the Guardians and the Wards Act, 1890. Though no proper statutes are dealing with Inter-Country adoption in India, there are sufficient rules that have been formulated to make this process a simple one.
Firstly, the parents before taking a child into adoption must fulfill the requirement of the law of adoptions in their country. They must have taken the requisite permission from their own country to adopt from the appropriate authority thereby the child does not face any problems regarding immigration and in obtaining nationality in the adoptive parent’s foreign country. The validity of inter-country adoption was first argued in the case of Re Rasiklal Chhaganlal Mehta [8] and the Court held that inter-country adoptions should be legally valid under the laws of both the countries under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956.
Main efforts must be taken in finding prospective adoptive parents, preferably of Indian origin. The Supreme Court of India stated in a case [9]held that the concept behind finding Indian parents or parents of Indian origin is to safeguard their well-being and that when the children grow up in Indian surroundings they can retain their culture and tradition.
[1] D. Howe, P. Sawbridge, and D. Hennings, “Half a Million Women”, New York: Penguin, 1992.
[2] 1984 AIR 469, 1984 SCR (2) 795
[3] Convention on the Rights of the Child, Article 21(c)
[4] Convention on the Rights of the Child, Article 20.
[5] Hague Convention, Article 4.
[6] Hague Convention, Article 4 (d)
[7] Hague Convention, Article 30
[8] AIR 1982 Guj. 193
[9] Karnataka State Council for Child Welfare v. Society of Sisters of Charity St Gerosa Convent AIR 1994 SC 658, 1995 Supp (4) SCC 529
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