By Mehak Uppal
Adoption is the legal procedure by which a child's parental rights and responsibilities are transferred from his or her biological parents to the adoptive parents. It allows people who aren't related by blood to have the parental role in a child's life. Adoption is something that has been taking place across the world and throughout history. As far back as anyone can tell, it's also been a part of the Indian culture. Although adoption itself has been around since the time of the Ramayana and the Mahabharata, international or inter-country adoption as one may say, is a relatively recent yet growing phenomenon. Thus, in simple terms adoption of a child from one country by a citizen or permanent resident of another country is known as Inter-country adoption. Adoptions of this type, call for a higher level of management and oversight compared to those that occur within a country's borders. The primary goal of this research paper is to shed light on a pressing issue: the conflicting perspectives of the law and the absence of comprehensive legislation governing international adoption.
LEGISLATIVE BACKGROUND
Inter-country adoption in a layman’s language describes a child who is adopted from another country. A few years ago, India did not have any statutes governing international adoption. Following the Supreme Court's issuance of rules for this type of adoption in the cases of Rasiklal Chhaganlal Mehta Gujarat High Court[1] and Laxmikant Pandey v. Union of India,[2] CARA (The Central Adoption Resource Authority) as a result of which was set up to oversee international adoptions in India. Eventually, CARA became the Hague Adoption Convention's official Central Authority.
Furthermore, the requirements of the Juvenile Justice Act relating to adoption were not particularly clear and comprehensive prior to the year 2000, but the Juvenile Justice act of 2015 made the legislation regulating the adoption process complete and streamlined. All international adoptions must comply with the requirements of the Juvenile Act and the regulations established by CARA. Moreover, children who are relinquished abandoned, or orphans in the care of an adoption agency are the only children who can be adopted in accordance with CARA Rules.[3]
STEPS TAKEN TO ENSURE SMOOTH AND FAIR INTER COUNTRY ADOPTIONS
India has signed onto both the Convention on the Rights of the Child and the Hague Convention. As a result, the Juvenile Justice Act of 2000, as amended by Acts of 2006, 2010, and 2015, safeguards the rights of adopted children, as recognised by the Hague Convention. In addition, the Government of India was advised to establish a regulating organisation in the form of Central Adoption Resource Agency in 1989. Ever since then, the CARA has been a beacon of leadership in the field of international adoption. It has repeatedly given guidelines to standardise the procedure and process of international adoption. The Government of India recently issued new CARA guidelines known as the Adoption Regulations, 2017.[4]
Pournima Gadiya, a member of the Children's Welfare Committee (CWC), has said the adoption process allows for a minimum of 60 days, doing a full background check and locating the child's biological parents. It is the responsibility of the district court to determine whether or not the biological parents want their child back, and if not, to declare the infant legally available for adoption.[5]
Here, the CWC is crucial in preparing the child for legal independence. A youngster can stay in the shelter while efforts are made to locate his or her family. But, once the child is no longer subject to parental control, the district court and the adoption agency will become involved. Also, most details about the child are kept private during the adoption procedure.
There is a position taken in the case of Craig Allen Coates v. State and Anr.[6] through Indian Council for Child Welfare and Welfare Home for Children that states potential adoptive parents have to give compelling reasons before they can adopt a child from another country.
Furthermore, the Supreme Court ruled in the case Karnataka State Council for Child Welfare v. Society of Sisters of Charity St. Gerosa Convent[7] that it is in the best interest of adopted Indian children to be raised by Indian families even if there are inter-country adoptions taking place.
Moreover, following the case of Varsha Sanjay Shinde & Anr. v. Society of Friends of the Sassoon Hospital and others, [8]the Bombay High Court ruled that once an overseas couple has given their consent to adopt a child, that child cannot be shown by the adoption agency to any other Indian parents, and that those parents have no legal standing to claim the child simply because they are Indians.
THE DARK SIDE OF INTERCOUNTRY ADOPTIONS
There have been several concerns raised throughout the years regarding intercountry adoptions in India. The adoption of a child from another nation offers a chance for a child who is orphaned, abandoned, or has special needs to find a permanent, loving family. Nevertheless, there are considerable challenges and problems connected with this, the most common of which are:
POLICY ISSUES
There are several problems with the Inter-Country adoption system, but the lack of monitoring and policy is the core problem. Most adoptions are handled by private, independent agencies, and these organisations have varying requirements for what an adoption should entail. Even though, one shouldn't accept adoptions through unauthorized agencies, yet that's the standard practice nowadays. If a business is not properly commenced, it leaves more room for unethical practices. Due to the abundance of well-off families that could be interested in adopting a child, the market for doing so is vast and lucrative. Many families are so eager to adopt that demand for adoptable children exceeds supply. When this happens, non-orphaned children who were abducted from their homes are pushed into leaving due to false information, or otherwise misled into leaving their families fill the void. One of the biggest disadvantages of international adoption is that whereas adoptees from India are required to appear in court, adoptees from other countries are not.
CHILD TRAFFICKINNG
Some people view the transfer of children from poor countries to wealthy ones through inter-country adoption as a form of child trafficking, so it's not surprising that the two concepts are often confused. It's possible that wealthy countries are sending children elsewhere because they want their kids to be cared for and loved, rather than abused or forced to beg. The movement of children from poverty to wealthy families is not necessarily child trafficking, but the financial motivations at play do make it trafficking. Proponents of international adoption believe that millions of children in countries with weak or emerging economies need to be adopted. The harrowing stories of children who have been abandoned, murdered, left in depressing orphanages, or are surviving on the streets speak volumes about the critical need for adoption. In this view, the tangible benefit of children is sacrificed to ideological gods by those who object to intercountry adoption on ethical or political grounds.
EXPLOITATION
The Central Adoption Resource Authority (CARA) has found that many Indian adoption companies exploit the children they place for adoption in order to increase their monetary gains. Adoption agencies overcharge adoptive families because children are viewed as a commodity. Some adopted children are used or abused by their new family since their adoptive parents didn't know the circumstances in which they were living before adoption.
CHAIN OF EVENTS INDICATING THE FLAWS IN THE IMPLEMENTATION OF LAWS
2005: The Malaysian Social Services, an orphanage in Chennai, was detained for supplying children to a child trafficking racket that was facilitating international adoptions.[9]
2010: Child trafficking for international adoption was cited as the reason Australia terminated its adoption programme with India.[10]
2011: The Preet Mandir managing trustee in Pune was charged with child trafficking by the CBI. Adoption trafficking begins with the abduction or theft of children from low-income families in Maharashtra, followed by the illegitimate processing of their paperwork so that they can be sent abroad as adoptees.[11] The Observation Home Satara is where Grandma Kisabai Lokhande sent her two grandkids to receive temporary care, education, and protection (boarding school). Girls were sent from there to the Preet Mandir children's home in Pune. Then, a Spanish adoption agency was enlisted to help place the two grandkids with adoptive parents in Spain; this was done without the grandmother's knowledge or permission.
2012: A two-year-old girl named Baby Falak was rushed to the hospital in critical condition after a horrific accident. It became out that the couple that adopted the girl had actually trafficked her from her original parents.[12]
2015: The police in Delhi busted a baby-stealing group that was selling stolen infants to adoption agencies. In order to get monetary gains, these adoption organisations sold new-borns to foreign countries.[13]
2016: The police in the southern city of Bengaluru had broken up an international child trafficker. Authorities in the Indian states of Bihar, Uttar Pradesh, and Gujarat reportedly arrested 16 people who were part of a network accused of unlawfully transferring at least 25 minors to the United States with the help of fraudulent documents.[14]
2018: According to the Spanish adoptive parents, the Indian adoption agency (located in Bhopal) lied to them about the girl's age, thus they gave up custody of their 13-year-old daughter. She has been placed in a Spanish children's home for the time being.[15]
2019: After the death of Indian-born Sherin Mathews in the United States in October 2017, India ordered the American adoption agency involved in the adoption to cease operations. Sherin Mathews, a young girl of Indian descent and the subject of this case, vanished from the United States when she was three years old. After her father claimed he chastised her for not drinking milk, she vanished from the Dallas suburbs. He allegedly left her standing outside near an alley behind her house around 3 in the morning, and she hasn't been seen since and was later found dead.[16]
2022: In West Bengal, a racket involving adoptions was uncovered and broken up. The state's CID has admitted that there is a sizable adoption industry including shady Charities, doctors, and middlemen.[17]
All these children are either harmed or given affection and care after being trafficked to other countries. Abuse can take many forms, including those of the mind, spirit, or body. The kids are abused and may be made to beg or do chores around the house. This has a negative impact on their mental health, and they remain in a condition of abuse for a considerable amount of time as a result of it. Some adoptive parents have good intentions and really care for children, but they may be complicit in the trafficking racket if they know or should know that the child they are caring for has fraudulent paperwork and is not an orphan.
To preserve a child's rights and keep him or her safe from abuse and violence, the Indian government must establish stringent rules for adoption and conduct rigorous follow-ups, as seen by situations like these.
CONCLUSION
Finally we may conclude that while international adoption was initially viewed as a humanitarian reaction to the kid, the attention has since shifted to childless couples. So, the right to procreate takes precedence over the right of a kid to have responsible and loving parents.
There are monthly visits from the agency and the parents are required to report on the child's progress and well-being. Our findings show that children are at risk for abuse and neglect since routine follow-ups are often neglected. A further contemporary disadvantage is the persistently large demand in affluent nations to adopt children from underdeveloped countries.
Children in need of protection, biological parents, adoptive families, intermediaries, and the state all have an interest in the outcome of international adoptions in India. There has to be a comprehensive legislative framework in India to handle the challenges of adoption, one that guarantees adoption is conducted in an ethical and transparent manner and safeguards the rights of all parties involved. To prevent the abuse or exploitation of vulnerable children, prospective adoptive parents should be informed of the potential dangers and obligations they will take on. Last but not least, adoptive parents must always prioritise the safety and rights of the children in their care.
The author of this article is Mehal Uppal, a third-year law student.
[1] Rasiklal Chhaganlal Mehta v/s State.,Special Civil Application 2489 Of 1980
[2] Laxmikant Pandey v. Union of India Criminal Misc. Petition Nos. 3352, 3475, 2045, 5704, 8661, 8842, 9122 of 1990 and 2838 of 1991. IN Writ Petition (Criminal) 1171of 1986
[3] Ministry Of Women And Child Development Notification , THE GAZETTE OF INDIA : EXTRAORDINARY (23rd September), 2022, https://cara.nic.in/PDF/adoption%20regulations%202022%20english_27.pdf
[4] CARA, Ministry of Women and Child Development, Government of India, http://adoptionindia.nic.in/index.htm.
[5] Fatima Peter, Intercountry adoption has numerous drawbacks, THE BRIDGE CHRONICLE (October 28, 2017), https://www.thebridgechronicle.com/opinion/intercountry-adoption-has-numerous-drawbacks-7934
[6] Craig Allen Coates V. State & Anr.,Civil Appeal No. 7475 of 2010
[7] Karnataka State Council for Child Welfare v. Society of Sisters of Charity St. Gerosa Convent SLPs Nos. 14654-55 of 1991
[8] Varsha Sanjay Shinde & Others v/s The Society of Friends of the Sassoon Hospitals & Others, Writ Petition No. 9227 of 2013 Along with Civil Application No.2582 of 2013
[9] Asha Krishnakumar, Behind the facade, THE HINDU (June 03, 2005) https://frontline.thehindu.com/cover-story/article30204916.ece
[10] Rory Callinan, Evidence of trafficking of Indian children for illegal adoption emerges, THE SYDNEY MORNING HERALD (January 25, 2014), https://www.smh.com.au/national/evidence-of-trafficking-of-indian-children-for-illegal-adoption-emerges-20140124-31e84.html
[11] CBI files case against Preet Mandir official, TIMESOFINDIA ( May 18, 2010), https://timesofindia.indiatimes.com/city/pune/cbi-files-case-against-preet-mandir-official/articleshow/5942948.cms
[12] Farah Naqvi, Who killed Baby Falak?, THEHINDU (March 19, 2012), https://www.thehindu.com/opinion/lead/who-killed-baby-falak/article3009764.ece
[13] Somreet Bhattacharya, Delhi NGO made lakhs selling stolen babies,TIMES OF INDIA (June 10,2015)https://timesofindia.indiatimes.com/city/delhi/delhi-ngo-made-lakhs-selling-stolen-babies/articleshow/47607346.cms
[14]Bengaluru Police bust international child trafficking racket, 16 arrested, INDIA TODAY (Feb 9, 2016), https://www.indiatoday.in/mail-today/story/bengaluru-police-bust-international-child-trafficking-racket-16-arrested-307772-2016-02-08
[15] SANYA DHINGRA, Spanish couple abandon adopted Indian child, Bhopal agency under the scanner , THE PRINT (22 August, 2018), https://theprint.in/india/governance/spanish-couple-abandon-adopted-indian-child-bhopal-agency-under-the-scanner/101821/
[16] Sherin Mathews death: Father of adopted Indian girl gets life sentence, BBC (27 June 2019), https://www.bbc.com/news/world-asia-india-48782195
[17]Dwaipayan Ghosh , Kolkata: Police bust adoption racket, arrest 1, TIMES OF INDIA (Nov 4, 2022) https://timesofindia.indiatimes.com/city/kolkata/kolkata-police-bust-adoption-racket-arrest-1/articleshow/95288472.cms
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