Kabir and Myra, a young newlywed Hindu couple was recently hit by thunderous news, which was to change their lives forever. Myra was declared incompetent of conceiving a child on account of numerous, life-threatening health complications. Despite having diverse options such as IVF and surrogacy for securing uterine parenthood, the couple refused to undertake any of the scientific measures. They insisted upon adopting a child - a practice which had always fascinated Kabir, based on the knowledge he gained from the movies of the late 80s.
"Is this process really that simple? Will the child grow up to actually respect us knowing that we had adopted it?", wondered a legally ignorant Myra whose fears faded away as she carefully caressed month old babies in a leading orphanage of the city. The excited couple decided upon adopting a 3-month-old girl child named "Aasmantara"; and placed their interests before the managers of the said institution. Their inadequate knowledge of adoption laws of the nation was quite evident from their erroneous assumption that on completion of the paperwork that day itself, they were entitled as the rightful parents of their dream kid henceforth. Therefore, the Manager directed Mr Kabir to visit the leading lawyer in the field of Human Rights -- the bastion of Children Rights to be precise -- Vibhawari Kulkarni.
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On the allotted day, a very thrilled Kabir was delighted to see the lady Advocate and bombarded her with his understanding of the notion of adoption. The advocate promised to enlighten her client with the nitty-gritty of the cumbersome procedure of executing "Adoption". Accordingly, she first introduced him to the practice of adoption, before actually answering his questions; an excerpt of which is hereunder:
“Adoption, as the trend goes, is the act of one who takes another’s child into his own family, treating him as his own, and giving him all the rights and duties of his own child. It can be better described as the permanent legal transfer of all parental rights from one person or couple to another person or couple. Adoptive parents have the same rights and responsibilities as biological parents and adopted children have all of the emotional, legal and kinship benefits of biological children.
A practice prevalent in Patriarchal Ancient India, primarily for continuing the family name and its lineage, besides attaining Moksha by completing the last rites of the interested person, the Mitakshara School of Thought of Hindu Practices actually granted the adopted son equal rights and status as that of a natural-born son. And at the threshold of Modern Period in the History of the Indian Subcontinent, this practice paved way for sustaining Empires such that the mighty Peshwai actually survived by adopting Nanasaheb Peshwa – a leading figure in the Revolt of 1857.
In fact, the British, by implementing The Doctrine of Lapse, wherein Kingdoms with no legal heir were to cede their ruling rights, implying that adopting a son for managing its affairs was cleverly curtailed, consolidated their stronghold over the Subcontinent. Nevertheless, the British Raj is accredited with legislating the Guardians and Wards Act, 1890 which laid down a Universal Law with regards to adoption, applicable to one and all, irrespective of their religious differences.
Herein, a Minor, i.e. a person below the age of 18 could have more than one Guardian for himself and his property, such that the Court shall make an appointment for the same, provided such application has been placed before it. Thus, provisions for adoption via claiming Guardianship were thoroughly legalized and since then, have catered the numerous interests of several families in the country. Post – Independence, the practice of Hindu adoption was regulated and codified as the Hindu Adoption and Maintenance Act, 1956 was enacted for greasing the said procedure, developed to inculcate the essence of the rights bestowed by the Constitution of India, besides bringing in consonance, the international understanding of Adoption.
This Law allows both parents and individuals, irrespective of gender to adopt a Kid, provided he is below the age of 15 (exempted in certain cases). The Father is the natural guardian and his consent is a requisite for adoption to commence. However, the said Law focuses on the adoption of a child from one family to the other and once the process is complete, then, all the ties are to be severed with the natural family. Islam, on the other hand, makes a way out for recognizing adoption in a very unique way.
Through the system of Kafala, Islam conveys to one and all that the adoptive family is merely the caretaker of the adopted child and can never replace its Biological child, both legally and morally. Quite recently, the scope for adopting surrendered and orphaned children have been created in the Juvenile Justice (Care and Protection of Children) Act, 2015.”
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“Fantastic Ms Kulkarni. But assuming it’s India, I am pretty sure the process of adopting a child and thus, obtaining its legal custody is indeed cumbersome? Could you please elaborate on it for me?``asked Kabir, who seemed fascinated by the rich history of the adoption laws of India.
“Indeed Mr Kabir. That’s my job you see, to enlighten all those who knock on my door seeking the righteous knowledge of Law and promising its implementation in the strictest way possible.!”. Fueled with passion, she continued with a spirit unknown to numerous teachers of top-notch law schools of the country as of that day:
“The procedure for adopting a child in India is largely derived from the Central Adoption Resource Authority (CARA) Guidelines, which prescribes a rigorous yet noteworthy process for confirming the transfer of Guardianship over a child in the country. The said guidelines, largely inspired by the measures prescribed by the Hague Adoption Convention, were framed in 1990. Today, CARA comes under the purview of Ministry of Women and Child Development (MCWD) and aims at ensuring every destitute child to be given to a family which promises to look after the needs of the child and shower immense love on these tiny tots. Unlike the aforesaid Laws, these guidelines describe the mode of successfully executing an adoption in India, thanks to its 60 Sections and 32 Schedules.”
“So CARA it is huh? Secular, extensive and above all, largely bureaucratic! But how does adoption effectuate? I mean, the eligibility criteria for Parents if any?” Questions after questions popped up as the discussion intensified, pleasantly calmed by the aroma of coffee.
“Brace yourself for some technical knowledge Mr Kabir”. Carefully placing her majestic Korean Mug, she continued:
“Ideally, a child is legally free for adoption once the Child Welfare Committee waves the Green Flag, restricting the said facility to only those kids who are orphaned, abandoned, surrendered, children of relatives and those procreated from earlier marriage surrendered by the Biological Parent(s). Interestingly, the parents willing to adopt shall be mentally and emotionally stable, financially capable and shall not have any life-threatening medical condition. The minimum age difference between the child and either prospective adoptive parent shall not be less than 25 years, whereas either parent cannot be more than 55 years at the time of seeking adoption and in case a couple seeks to adopt a child, then their composite age shall be less than 110 years. Obviously, a single male is not eligible to adopt a girl child, whereas a single female is privileged with the right to adopt both a male and a female child. However, a couple with three or more kids is ineligible for adoption, except cases involving special-needs children.”
"And now Mr Kabir comes the part for which you approached me today – the exact procedure of adoption. No doubt it is lengthy and time-consuming, but I shall expound upon its benefits at the end of this session." With a swagger and an authoritative tone she continued:
"As per the CARA Guidelines, every other Prospective Indian parent are required to apply for registration at the Specialized Adoption Agencies through Child Adoption Resource Information and Guidance System by filling up the online application form. Thereafter, the prospective adoptive parents shall select a Specialized Adoption Agency nearest to their residence for the Home Study Report. Notably, the Specialized Adoption Agency or the empanelled social worker of the State Adoption Resource Agency or District Child Protection Unit shall counsel the prospective adoptive parents during the home study. The Home Study Report, an unbiased report based on its observations shall be posted in the Child Adoption Resource Information and Guidance System by the Specialized Adoption Agency as soon as it is complete and shall remain valid for 3 years. Nonetheless, the adoption of a child by the prospective adoptive parents, after completion of their registration and Home Study Report, shall depend upon the availability of a suitable child. The said procedure, altogether the first step for adopting a child, helps the competent authorities understand the household circumstances of the prospective adoptive parents and briefs them about the way they shall handle their parenthood. Indeed a requisite, this Report helps the Authorities realize the competency of the parents to actually look after the child they wish to adopt in the near future.”
“So Advocate Kulkarni, it wouldn’t be wrong to assume that a large number of parents have registered for adopting a child. So is the procedure based on first – come – first – serve basis?”
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“In the language of Law we describe this method as Seniority, i.e., the prospective adoptive parents are referred to the online profile of three children, such that they may reserve one child within a period of forty-eight hours for possible adoption. The couple shall be given access to the medical reports of the child, which shall help them make a better decision.
Please note that it is the Adoption Committee whose discretion shall decide the fate of the prospective adoptive parents who shall be decided through a meeting between the two. On the other hand, the Specialized Agency, inter-alia, is vested with the responsibility of organizing a meeting of the prospective adoptive parents with the child. And talking about these authorities let me draw your attention to certain other important bodies associated with the process of Adoption.
First comes the State Adoption Resources Agency (SARA), which is established by the State Government for the promotion, facilitation, monitoring and regulation of the adoption programme at the State level. The District Child Protection Unit, inter-alia, tracks the progress of adoption of each child declared legally free for adoption and take necessary actions for expediting the case, wherever required. The Birth Certificate Issuing Authority is in charge of issuing birth certificate within five working days in favor of an adopted child on an application filed by the Specialized Adoption Agency or adoptive parents, incorporating the names of the adoptive parents as parents and the date of birth of the child as mentioned in the adoption order of the court.
Other Authorities of considerable significance include the Child Welfare Committee, the Regional Passport Officer, the Foreign Regional Registration Office and even the Indian Diplomatic Missions. Lastly, the Central Adoption Resource Agency (CARA), inter- alia monitors and regulates the process for in-country adoption, besides supporting SARA for establishing itself in the State.
"I guess we cannot adopt a child of our choice but rather have to choose from the options specified by the System. I see. So these are the authorities with whom I have to engage very cautiously if at all I want to adopt a child. But in the process you described above, what if the Committee deems me and my family competent enough to adopt and raise a child? Or what if I find my dream kid right there in the options displayed by the System?”
“Very well Mr Kabir, in that case, the child shall be taken in pre-adoption foster care by the prospective adoptive parents within ten days from the date of matching, after signing the pre-adoption foster care undertaking. Thereafter, the parents shall sign the Child Study Report and Medical Examination Report in the presence of the social worker or chief functionary of the Specialized Adoption Agency which shall further record the acceptance by the prospective adoptive parents in the Child Adoption Resource Information and Guidance System. Thereafter, the Specialized Agency shall, within 10 days from matching the child with the prospective adoptive parents, file an application in a Court of competent Jurisdiction, requesting an Order of Adoption. Once the petition is ready, these parents are required to sign the same in front of the Court Officer.”
“And then, the child is ours, right? No more legal technicalities ahead right?” quite anxious by now, crossing his fingers desperately, waiting to hear an affirmative answer.
"Yes indeed! The child is yours and in legal terms, you are blessed with its custody. However, the Specialized Adoption Agency is duty-bound to prepare a post-adoption follow-up report on a six monthly basis for two years from the date of pre-adoption foster placement with the prospective adoptive parents. So here is my personal advice for you Mr Kabir – always be on your toes….”
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And just when Vibhawari thought the session was over, out came another question:
“But what if I wish to adopt a child from another country? I mean, is that possible?”
“Indeed I possess a commendable amount of patience you see Mr Kabir. Nevertheless, Section 22 of the CARA Guidelines permits adoption of a foreign citizen by Indian Parents which shall be undertaken in accordance with the laws of that country. On receiving Home Study Report of the prospective adoptive parents (including supporting documents), Child Study Report and Medical Examination Report of the child, the Authority shall issue the approval, as required in the cases of adoption of children coming to India as a receiving country.”
“And what if a foreign national is desirous of adopting an Indian Kid?”, whispered Kabir, who was finding it awkward to bother her anymore, but his thirst for knowledge was soaring with every forthcoming answer.
“You are audible Mr Kabir. Trust me I do appreciate such enthusiastic clients at times. Allow me to continue....”
“The term foreigners, in this case, shall extend to Overseas Residents of India and most importantly, Foreign Prospective Adoptive Parents. Their procedure of adoption is largely the same as that of in-country adoption, thanks to the adequate implementation of the Hague Adoption Convention worldwide. However, the number of options available in this case shall be limited to 2 options only. On choosing the child, they shall accept it by signing the Child Study Report and Medical Examination Report of the child within thirty days from the date of reservation. All documents forming part of the Home Study Report shall be notarized and the signature of the notary is to be apostilled by the competent authority of the receiving country. Note that the prospective adoptive parents may take the child in pre-adoption foster care for a temporary period within India after issuance of No Objection Certificate by the Authority while the court order is pending, by furnishing an undertaking to the Specialized Adoption Agency. As soon as the passport and visa are issued to the child after an issue of adoption order from the competent court, the prospective adoptive parents shall receive final custody of the child from the Specialized Adoption Agency. The Authorized Foreign Adoption Agency or the Central Authority or Indian diplomatic mission or Government department concerned shall report the progress of the adopted child for two years from the date of arrival of the adopted child in the receiving country, on a quarterly basis during the first year and on six monthly basis in the second year, by uploading online in the Child Adoption Resource Information and Guidance System”
“And that’s how Adoption concludes. But are these complexities really necessary? In my opinion, they could be avoided and made more user – friendly. Are they really that necessary?”
"By all that I have described above, it is quite evident that adoption literally involves securing custodial rights over a minor and therefore, certain restrictions are necessary, primarily to prevent child sex trade and even child slavery in certain cases. Article 23 of the Constitution of India bestows such a responsibility upon the Legislature to frame such Laws which curb down upon human trafficking, which, if unregulated, holds the potential of gravely violating the rights of one and all the citizens of the country. Moreover, as signatories to the Universal Declaration of Human Rights and the Hague Convention on Adoption, the Indian Legislature is left with no other option but to frame universal laws of adoption, which largely emphasize on the rights of these orphaned or surrendered children. Above all, these special cases are the responsibility of the State, i.e., any misconduct on its part to support and protect them would tarnish its image and subsequently destroy its image in the international sphere. Socio-Political reasons being the crux of every other Law which is passed in India, must be kept in mind, Mr Kabir.”
“Nicely done, Advocate Kulkarni. Indeed this session has made me aware of the nuances of Adoption Laws. I thank you for sparing your precious time for me, it has been an honour."
“It is my duty after all. My passion to be honest, but let’s just say, helping others makes me happy!” the door creaked open as she opened it for him, bidding him farewell.
“Aarya, please call in the next client. And please get me a cup of tea, will you?”. As this hectic session concluded, Advocate Vibhawari pondered upon the failure of the Indian Education system to actually make people aware of their basic rights till date.