Inter-country adoption, in particular has been a sensitive issue as far as the Indian legal system is concerned. Prior to the year 2000, the Hindu Adoption and Maintenance Act,1956 (“HAMA”) provided for adoption only in relation to Hindus, Buddhists, Jains and Sikhs. HAMA, predictably is silent on inter-country adoptions.
Adoptions under HAMA are based on the ancient Hindu culture that only biological parents or guardian(s) of a child are in position to determine ‘the best interest of the child’. HAMA stipulates certain conditions with respect of the capacity of persons ‘giving in adoption’, ‘taking in adoption’ and ‘who may be adopted’. Further, there are other conditions to be satisfied for a valid adoption as prescribed under section 11 of HAMA.
The adoption process under HAMA however, lacks any intervention, monitoring or supervision by the State thereby leaving the children at mercy of the adoptive parents. Inter-country adoption entails children being placed beyond the territory of their state of origin. In view of such geographical limitations, it is difficult to ascertain the welfare of the child specifically in absence of any post adoption measures stipulated under HAMA. Therefore, it is imperative on the concerned states to monitor and supervise inter-country adoptions in order to ensure the welfare of the child.
In India, the issue of inter-country adoption was brought into prominence by the Hon’ble Supreme Court in Laxmi Kant Pandey Vs Union of India (1984 (2) SCC 244) whereby the Hon’ble Court examined the law regarding adoption of an Indian child by foreign parents and recommended for the constitution of a Central Agency. The Court expressed the desirability of setting up of a Central Adoption Resource Agency by the Government of India to regulate inter-country adoptions. Accordingly, in the year 1990, the Central Adoption Resource Authority (“CARA”) was established as the central agency to supervise adoptions in India.
The best interest of the child is of paramount concern in every adoption. In order to safeguard and prevent the cases of child abduction and trafficking, in May 1993, the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (“Hague Convention”) came into effect and India ratified the Hague Convention in the year 2003. Being a signatory to the Hague Convention, it is obligatory on part of the Contracting States including India to ensure compliance of the provisions of the Hague Convention. Therefore, in addition to the domestic adoption laws, India also needs to follow the International conventions/treaties in this regard.
The Hague Convention, in order to ensure the best interest of the child, envisages that an adoption process is properly supervised and supported by the designated Central Authority of the respective States, i.e, the State of Origin as well as the Receiving State. The Hague Convention also details the procedure to be adopted by the State of Origin and the Receiving State for inter-country adoption and also prescribes post adoption measures to be undertaken in a coordinated manner to ensure the best interest of the child. As per Hague Convention, it is the mandatory duty of both the countries, i.e, the State of Origin and the Receiving State, to ensure that the adoption is in accordance with the Hague Convention.
Therefore, a duty is caste upon the State of origin as well as the Receiving State to ensure that the aforesaid objectives of the Hague Convention are followed during the course of inter-country adoption process including the post adoption measures to be undertaken in both the States through their respective Central Authorities. The Hague Convention envisages Home Study report of the prospective Adoptive Parents considering various factors including their identity, eligibility and suitability to adopt, background, family and medical history, social environment, financial status, criminal antecedents etc. The State of Origin, in view of Article 17 of the Hague Convention, needs to take a decision and provide a no objection certificate (NOC) based on various factors including the eligibility and suitability of the adoptive parents and that the child is authorized to enter and permanently reside in the Receiving State. A significant qualification criterion for an inter-country adoption as envisaged under the Hague Convention is that the Central Authorities of both the State of Origin and the Receiving State have provided their approval for the adoption to proceed. Therefore, the State of Origin, in its capacity as ‘Parens Patriae’ acts to ensure the best interest of the child in the Receiving State.
The Juvenile Justice (Care and Protection of Children) Act, 2000 (“JJ Act, 2000”) was the first secular piece of legislation governing matters with respect to juveniles including adoption.
While, the JJ Act, 2000 did not expressly mention about inter-country adoption, Guidelines for Adoption from India, 2006 were notified under section 41(3) of the JJ Act, 2000 which contained reference to inter-country adoption. The 2006 notification was replaced by Guidelines Governing the Adoption of Children, 2011 (“2011 Guidelines”), which also contained a specific definition of ‘inter-country adoption’. The 2011 Guidelines were further superseded by the Guidelines Governing the Adoption of Children, 2015.
The concept of ‘inter-country adoption’ present until now only in the various guidelines notified under the JJ Act, 2000, was expressly included in the Juvenile Justice Act, 2015 (“JJ Act, 2015”). Section 2(34) of the JJ Act, 2015 defines inter-country adoption as ‘adoption of a child from India by non-resident Indian or by a person of Indian origin or by a foreigner’. Subsequently, Adoption Regulations, 2017 were notified under the JJ Act, 2015.
Under Section 56(4) of the JJ Act, 2015 it is mandatory that all inter-country adoptions are undertaken solely in accordance with the JJ Act, 2015 and the adoption regulations framed thereunder by CARA. Further, Section 56(3) specifically states that JJ Act, 2015 shall not apply to adoption of children under HAMA. Therefore, a conjoint reading of Section 56 (3) and section 56(4) of JJ Act, 2015 implies that all inter-country adoptions (irrespective of their religion) shall be made as per the provisions of the JJ Act, 2015. It also implies that while a domestic adoption under HAMA does not attract the provisions of the JJ Act, 2015, an inter-country adoption if made, without following the mandatory procedure under the JJ Act, 2015 shall not be considered to be a valid adoption.
Section 56(4) of the JJ Act, 2015 mandates that all inter-country adoptions shall be undertaken solely in accordance with the JJ Act, 2015 and the adoption regulations framed thereunder by CARA. Therefore, any inter-country adoption, if made under HAMA and not effected as per the Hague Convention, the benefits and rights including citizenship and social security would not accrue to the adopted child in the Receiving State, which will be detrimental to the best interest and welfare of the child.
Prior to the enactment of the JJ Act, 2015, there was no stipulation regarding inter-country adoption to be undertaken solely within the ambit of JJ Act 2000. In the absence of any such stipulation, the Courts in India considered the inter-country adoptions made under HAMA to be legal and valid thereby directing CARA to issue NOC. The enactment of JJ Act, 2015 brought clarity and transparency in the mechanism to be followed for inter-country adoptions thereby bringing uniformity in relation to inter-country adoptions in compliance with the Hague Convention.